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EFF reveals vastly expanded search policy at US borders

Probable cause a thing of the past

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In a move that could affect millions of people around the world, the US government has quietly relaxed a two-decade-old policy that limited the reading and copying of papers and electronic data carried by travelers crossing into American borders, according to recently released documents.

Under guidelines that were most recently revised last year, agents with the Customs and Border Protection (CPB) were given the power to "review and analyze" material even when there is no suspicion they will reveal violations of an agency rule.

What's more, the new rules gave agents the authority to copy papers, laptop computers, cell phones, and other electronic devices and store them for a "reasonable period of time." Agents need not have any suspicion of wrongdoing.

The new policy represents a vast expansion of the powers afforded to border agents screening travelers. Under the previous guidelines, which went into effect in 1986, agents had to have "reasonable suspicion" to review travelers' documents and could copy materials only when they had "probable cause."

The documents were unearthed through a Freedom of Information lawsuit filed by the Electronic Frontier Foundation and the Asian Law Caucus seeking records detailing the inspection methods applied to people entering the United States.

The civil liberties groups filed the complaint after their request for the information was rebuffed by officials with the Department of Homeland Security (DHS), which has oversight over the CPB.

In July, the DHS announced new guidelines that allowed border agents to copy documents, books, and data on electronic devices. Left out of the disclosure was how much of a departure this policy was from its previous one. For more than 20 years, border agents were required to have probable cause. Over a period of about a year beginning in 2006, all of that was undone.

DHS officials told the Washington Post here that the updated policy "reflects the realities of the post-9/11 environment, the agency's expanded mission and legal authorities, and developments in the law, including the Homeland Security Act of 2003."

She said customs policies "have always reflected the notion that officers have the constitutional authority to inspect information presented at the border" even when there is no suspicion.

Indeed, a federal appeals court in April ruled border agents were constitutionally permitted to examine the contents of a man's laptop even without reasonable suspicion.

These are potentially dangerous precedents, civil liberties watchdogs warn. By broadening the government's authority to conduct searches at the borders, we risk the possibility that the FBI and other law enforcement agencies will make end runs around important protections safeguarding citizens against improper searches and seizures.

The EFF and Asian Law Caucus say they are fielding a sharp increase in complaints coming from travelers who say they are questioned by border agents about their religious practices and political affiliations and who have their electronic data seized.

A case in point in Yasir Qadhi, a 33-year-old US native getting a doctorate degree in Islamic studies at Yale University. According to the Washington Post, he was detained for more than five hours while traveling with his wife and three children through the US border from Toronto in 2006. Earlier this year, Qadhi was contacted by an FBI agent who admitted to reviewing in detail personal information collected from his cell phone and diary.

Given the vast amount of highly sensitive information stored on today's laptops, and the government's refusal to say how long copied contents of them is stored - or who gets to see it - is it any wonder a growing number of people are reluctant to pass through US borders?

The EFF is calling on Congress to rein in the search authority of border agents. A better alternative, at least in the interim, may be to make hard drives unreadable using military grade encryption. ®

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