The Department of Homeland Security has released a long-awaited 2011 assessment of the civil liberties impact of its policy of conducting suspicionless searches of electronic devices at the border in response to a Freedom of Information Act request from the American Civil Liberties Union.
The ACLU calls the results of the DHS assessment “disappointing” for civil liberties advocates.
In the redacted Civil Rights/Civil Liberties Impact Assessment, the government explains why it believes requiring officers to have probable cause to search electronic devices such as cell phones and computers at the border would make America less safe:
[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.
ACLU attorney Brian Hauss said that the government’s reasoning completely undermines Constitutional rights and is baseless for many reasons.
“Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built,” Hauss said.
Furthermore, the ACLU attorney contends that the Federal government’s fear of court challenges leading to national security leaks is moot: “This line of thought is faulty for a few reasons. DHS claims that giving Americans the opportunity to challenge laptop searches in court would lead to the divulgence of national security secrets, but this is obviously wrong. The government has numerous resources at its disposal to prevent the disclosure of sensitive information. The ‘state secrets privilege,’ to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic.”
While even the most ardent civil liberties advocates understand that security threats at the Nation’s borders sometimes require lower thresholds for 4th Amendment protections; but the Federal government makes it seem as if the Nation’s borders should be treated as a Constitution-free zone. Nearly 190 million citizens live within what the ACLU has previously dubbed “Constitution-free Zones” near the country’s borders.