DHS Report Justifies Warrantless, Suspicionless Searches Of Electronics Near Borders


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.

Personal Liberty

Sam Rolley

Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After covering community news and politics, Rolley took a position at Personal Liberty Media Group where could better hone his focus on his true passions: national politics and liberty issues. In his daily columns and reports, Rolley works to help readers understand which lies are perpetuated by the mainstream media and to stay on top of issues ignored by more conventional media outlets.

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  • Darral

    Constitution free zones, first the border then the Rest of America, Abolish this Destructive Treasonous Democratic party.

  • Old Wolf

    In other words, a deprivation of the right is no deprivation because they need to deprive it for operational goals. Typical doublespeak. They don’t want to defend their actions. Are they engaged in an act or acts, in any state, territory, district, or possession willfully depriving, or causing to be deprived from individuals of rights, privileges or immunities guaranteed under the constitution or law? If so, they are felons. Title 18, section 242, no exceptions under the law. End the DHS, end the TSA, and any other agencies doing similar actions.

  • mr_bandit

    What I want to know is how many who say the ACLU is a Commie organization are now re-thinking their position – the ACLU *is* concerned about the Constitution? Willing to join the ACLU now?

    • http://betamaxmas.com/ Major Domo

      The ACLU did not make this law. Your elected officials did.

      • mr_bandit

        major-domo; you are correct. You mis-read what i wrote. the ACLU is *fighting* this law. Most people on the right are *against* the ACLU – the kindest have branded the ACLU as a Commie organization. Yet, the ACLU consistently *fights for* the constitution. Are you willing to join the ACLu, or do you like this law? Who else are you going to find to fight this law? – Just curious.

        • http://betamaxmas.com/ Major Domo

          Nope. The ACLU supports too much extraneous BS. Their name is a misnomer. As far as fighting unfair laws, I think I will be an educated voter, an outspoken blogger and general A-hole. If that’s not enough…shrug…I have signed a few petitions. That is more than most folk.