DHS Says Agent 'Hunches' Trump Citizens' Rights In Searching Your Computer At The Border

from the burns-through-a-handful-of-black-toner-cartridges-as-well dept

The Dept. of Homeland Security has finally coughed up its Civil Rights/Civil Liberties Impact Assessment of its suspicionless electronic device searches performed at border crossings by ICE and CBP agents. It’s been a long time coming.

The DHS announced it would take a look at this policy’s impact on civil liberties “within 120 days.” That was back in 2009. The report was released (but not publically) in December of 2011. In February of this year, it finally published a two-page executive summary of its findings for the public’s perusal. There wasn’t much contained in the release, but what was included was disturbing enough. In its own estimation, the DHS felt it complied with the Fourth Amendment but went on to state that imposing a “reasonable suspicion” requirement for device searches would be “operationally harmful” without any “concomitant civil liberties benefit.” In other words, the public wouldn’t be appreciably better off if these searches didn’t violate anyone’s rights, but the DHS felt its agencies would be worse off if forced to respect them.

The actual report has finally been pried loose, thanks to a FOIA request by the ACLU. There’s a lot of information available in the report, including an explanation as to why the agency feels a “reasonable suspicion” threshold is “inadvisable.” This is significant, the ACLU points out, as it’s the first time the government has explained why it believes suspicionless searches “enhance” security. It begins with some familiar language and expands on that thought process a bit

[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.

So, a CBP/ICE agent’s hunch trumps a US citizen’s rights. Rather than take the chance that someone dangerous might pass through its net, the agencies would prefer to be allowed to use “I’ve got a bad feeling about this” as justification for digging through not just someone’s laptop, but anyone’s laptop. The report supports the agencies’ hunch-based investigative processes with anecdotal evidence but no real data.

Any data actually produced comes from outside parties concerned about the First and Fourth Amendment rights of American citizens. The Constitution Project’s recommendations for border policy reform are included with the freed documents and it concludes that suspicionless searches not only have a very low “hit rate,” but that the policy itself, as it stands now without limitations, actually creates a burden for the CBP and ICE.

Moreover, requiring reasonable suspicion to conduct a search of electronic devices would focus limited law enforcement resources where they can be most effective. Suspicionless searches are not well-suited to identifying and locating contraband or illegal material, as the CBP’s own data show. In 2009, for example, only about 5% of the electronic devices searched at the border were seized as a result of the search. Put differently, in the vast majority of instances involving border searches of electronic devices, the traveler has had to needlessly withstand a significant intrusion into his or her privacy for no legitimate law enforcement purpose.

This hit rate puts it right in the neighborhood of another rights-violating law enforcement tactic — NYC’s stop-and-frisk program. Lots of busywork but very little in the way of results.

But this report is almost more about what it doesn’t include than what it does. If you’re looking for some in-depth discussion of the DHS’ views on various civil liberties, you’re going to be disappointed. Here’s what greets readers when they reach the “Fourth Amendment” section.

This continues for four straight pages. First Amendment? A page and a half of redacted text before this concluding sentence:

The laptop border searches in the ICE and CBP policies do not violate travelers’ First Amendment rights as defined by the courts.

Interesting. Of course, the involved agencies don’t really seem too concerned about any definitions provided by any court. If they did, they might have paid a bit more attention to a Supreme Court decision dealing directly with the Fourth Amendment.

Even more problematic is the government’s claim that the “hard-to-articulate” hunch of a border agent is enough for the government to scrounge around through our personal photos, medical and financial records, email, and whatever other sensitive information may be stored on our laptops and phones… As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people’s rights “based on nothing more substantial than inarticulate hunches,” then “the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the [government].”

This evaporation process seems to be nearly complete in the so-called “Constitution-free zone” and things continue to get noticeably drier elsewhere. The DHS clearly believes that citizens’ Constitutional rights end where its jurisdiction begins — and unfortunately at this point in time, that’s pretty much everywhere.

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Comments on “DHS Says Agent 'Hunches' Trump Citizens' Rights In Searching Your Computer At The Border”

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Anonymous Coward says:

The IRS Makes This Possible

This is what your taxes are being used for, not building more bridges and protecting the people.

But people still will argue to death that their wages must be taxed.

We need to starve the beast. Government is in the business of taking rights away, they do not give you any rights you were not born with.

But hey, better to feel a false sense of security rather than being a self-aware human being with respect for rights.

“But human nature is evil and we need government to protect us.”

So your solution is to institutionalize that evil? I guess that is what we are seeing today, institutionalized evil of human nature.

Greevar (profile) says:

Re: Re: Re:2 The IRS Makes This Possible

No, that’s purely inductive reasoning and it’s not impossible. Just because nobody has succeeded does not prove that it can’t be done. You can’t have a voluntary society if your infrastructure still operates on a system that necessitates coercion. A coercive economy requires a coercive societal structure (i.e. government). You need an economy that will allow people the freedom to refuse to cooperate. You can’t just throw out the government that ensures everyone participates and cling to an economy that requires everyone to participate. If everyone needs participation from everyone else to get things done, it’s inevitable that you’ll form a system that ensures nobody can live without contributing to the whole.

To have a truly voluntary society, infrastructure must be put in place so that each member can be self-sufficient. That means decentralizing the means to production so that each and every person can produce for themselves what they need without additional labor from outside sources. But it’s more than that, you need to deal with issues of property. For that, there needs to be an abundance of all resources required to satisfy human needs. With an abundance of resources and productive means, cooperative contribution would be entirely voluntary. Some would just live their lives and some would voluntarily assemble to achieve collective goals.

If you can’t overcome the limiting interdependence of our current society, any other system is doomed to fail.

Anonymous Coward says:

Re: Re: The IRS Makes This Possible

No. Just enough govt. to fund things most sane and moral people agree should be funded. I think if we achieved that then possibly it would be easier to comprehend how to live without a govt. though. The way I see it is govt. is a crutch. In a way like religion. IMO it is better to not be reliant on a crutch especially when doing so requires you to ignore reality. Also, it is not like this is something that happens overnight. More of a 100 year plan. Those who are fighting for the status quo have long term plans, the people who would like liberty, freedom and the rights that they were born with should have a plan as well.

But certainly not a government that does THIS and creates a population dependent upon it.

Anonymous Coward says:

Re: The IRS Makes This Possible

Government Corruption Has more to do with a broken election system, and some mystic American view that some guy with a badge is honest.
Taxes are taxes, but you lot are running huge deficits, you lot need to close the loopholes, ask yourself why are the biggest companies based in the US, build their stuff outside the US and sell inside the US, how come they use transfer pricing so the goods made outside the US are so expensive they make no profit selling inside the US, Why do these big companies get rights not available to small companies or even US citizens, Why does the tax burden fall mostly on the middle classes.
I suppose the poor can’t pay Tax, if they have no money, the rich/big companies hire accountants to find the loop holes, and the middle can’t avoid the taxman, being too poor to hire their own tax-avoidance experts, still rich enough to be squeezed.
End the corruption, Fix the loopholes, make sure the tax-avoiders pay their way. Pay down your deficits, May-be you could if you could stop your politicians announcing tax breaks to get re-elected and one in turning those into Tax-loopholes for the campaign contributors.

Anonymous Coward says:

Re: The IRS Makes This Possible

Yeah, because we’ve all seen how well depriving the gubmint of revenue has worked so far.

Basically, the poor suffer, and the rich continue to get tax breaks and government contracts for surveillance, etc.

The best way to change things is to vote for politicians who ACTUALLY represent us rather than merely on partisan lines.

Tim, it’s “Publicly.” If you don’t agree, please check the dictionary. Sorry, but you really should spell-check before posting. And yes, it does matter.

Vidiot (profile) says:

Hunches based on... someone? Anyone?

So if you want to search a laptop, you’re expecting to find information, content, communication… things of an intangible nature. But if you can’t see into the laptop, what gave you the hunch? Couldn’t be that you were influenced by… oh, say… a beard? A swarthy complexion? A non-European surname? How, exactly, are “hunches” about potentially valuable information formed, when that information can’t be discerned at a glance?

horse with no name says:

Re: Hunches based on... someone? Anyone?

Let’s see… recently traveled to a terrorism hot spot… trying to enter the US on a student visa after doing so… maybe being on a watch list, or any number of other things.

The real issue here is that there is no reason for the 4th amendment to apply to people who are not yet actually in the US legally. Until you pass the DHS checkpoint and get your passport stamped, you aren’t actually in the US, you are just an applicant. The rights of a person in that position should be much lower than someone who has passed and is legally in the country.

Anonymous Coward says:

Re: Re: Hunches based on... someone? Anyone?

Do you know what the word “inalienable” means? According to the Constitution the LIBERTY (later clarified by Amendments 1-10 – ie. the Bill of Rights) was an inalienable right for citizens of the country. Since you obviously have no clue what that word means, I’ll spell it out for you. That means it CAN’T BE TAKEN AWAY. That means if you are a citizen, you don’t check those rights at the border. You have them as a citizen regardless. Yes I know SCOTUS has said otherwise. SCOTUS was wrong. The word means what it means. And if you are a judge or a law maker that cannot comprehend what the Constitution says you should automatically forfeit your position because you are obviously not qualified to do the job.

horse with no name says:

Re: Re: Re: Hunches based on... someone? Anyone?

Inalienable doesn’t mean that it extends past the US borders. You guys spend endless amounts of time whining that US law should not extend outside it’s borders, and yet when it comes to what happens at those very borders, you suddenly flip flop like John Kerry and suddenly the US laws and constitution should apply to everyone, even if they have not yet legally entered the country.

So which is it?

Anonymous Coward says:

Re: Re: Re:2 Hunches based on... someone? Anyone?

You are a citizen of the US regardless of whether you travel outside the country or not. You don’t lose your inalienable rights with regard to your citizenship just because you travel somewhere else and the government does not lose the responsibility to respect those rights either. Other governments don’t have to grant you those rights and the government does not have to grant them to foreigners, but between the US government and it’s citizens that contract is supposed to be solid regardless of where you are. That is what inalienable means.

Michael (profile) says:

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.

Oh my gosh! You are right! We cannot have a requirement like this. It would MAKE OFFICERS ACCOUNTABLE FOR HAVING A F***ING REASON TO SEARCH PEOPLE! While we are at it, we should just skip the trial and execute people we find carrying contraband. It worked just fine for Judge Dredd.

Michael (profile) says:

Re: Re:

Wow – I just realized something.

Look at the wording. DHS is not concerned that a “reasonable suspicion” requirement will STOP officers from searching someone for no reason, they are concerned that it will make them HESITATE before they ignore the requirement and search someone for no reason.

Nice to get that extra 1/2 of a second of civil rights.

out_of_the_blue says:

An illustration of why I rail against weenie-ing legalisms.

THIS: “The laptop border searches in the ICE and CBP policies do not violate travelers’ First Amendment rights as defined by the courts.”

That can be absolutely true, but you don’t even suspect the hidden presumptions int it. At the very least, “travelers” are likely not defined as “persons” so 5th Amendment is irrelevant, and in any event, it’s clear that one is presumed by TSA to have waived all rights simply by exiting one’s domicile.

Lawyers have intentionally defined what you regard as common words to suit their purposes of control. This is just a small extension of the trick that anyone operating his own car on the public roads is presumed by the revenue agents disguised as police officers to be a hired “driver” operating a “motor vehicle” and “engaged in transportation”. If you go along with it, you’re subject to regulations.

Everything strictly legal is a fetish among authoritarians, I presume because otherwise it’s a strain on even vestiges of conscience.

Better add that I’m simply stating facts as to how contrived legal definitions are used to erase the rights of actual persons, NOT advocating it.

“publically”, eh? Minion, it’s the 21st C: use spell-check.

Lord Binky says:

Yeah, there’s certainly no possible correlation to the agent ‘hunches’ and their biases towards, lets say for example,a particular gender’s physique. It makes complete sense they should not be limited in their hunches, because the first rule of terrorist hunting is that terrorists give off creepy terrorist vibes.

In fact it is so absurd that there isn’t any data being collected on it to prove it either way, since that would be a waste of time that is better spent on hunches.

Lord Binky says:

Re: Re:

The laptop border searches in the ICE and CBP policies also do not provide a trivially circumvented check for any criminal willing to put effort not to be caught. So there’s not real gain beyond finding lazy criminals. There are perks such as being able to harass the lawful citizens of choice or near unlimited generation of criminals from minor offenses.

Lord Binky says:

I also find amusing...

That we trust agents that after training that are still unable to articulate what made them suspicious. That suggests at the root of the problem is very poor training. Either the training shouldn’t consider an individual successfully trained if they can’t articulate the signs that generate suspicion, or the training doesn’t actually cover those signs in a manner that allows a person to articulate them. Sit Ubu sit, Bad dog.

Anonymous Coward says:

Based on my experience

I have a hunch they’re violating rights and trying to cover it up as if it’s a terrorism-prevention mechanism.

I also have a hunch that they are terrible at their job of upholding our constitutional rights in the interest of a perception of security.

Since hunches are trumping everything else, can we just get them fired now?

Anonymous Coward says:

WTF is wrong with these people?

A few years ago I saw in a store and purchased a DVD for my daughter that I felt would not only be beneficial to her education but also brought back fond nostalgic memories of my childhood. The DVD I purchased was the 30th Anniversary Edition of the School House Rock series that used to air on Saturday morning TV when I was a child. As my daughter was too young at the time to really grasp the concepts of the content on the DVD it mostly stayed on the shelf until a few week or so ago. She is now 6 and not only quickly learning to read, but I noticed that she was starting to grasp some of the concepts of basic grammatical structure (ie. what nouns, verbs, and adjectives are, etc.) and I remembered that I had the DVD that she might enjoy and would help her with these concepts. So I popped it in and watched some of it with her. Then we got to The Preamble and I started to cry. Literally.

Between SCOTUS’s blatant gutting of the 4th amendment and the DHS and NSA’s flagrantly ignoring it, ICE and the DOJ ignoring both it and the 1st amendment as well as many in government who want to pretend like the 2nd amendment doesn’t exist while they take corporate special interest money to act in a manner that is detrimental to the general public welfare. Do the people in government really wonder why we have had so many instances of US citizens attacking their own country in recent years? It’s not guns that are making people violent. It’s oppression. Desperate people have a tendency to do desperate things. We’ve had an armed society for well over 200 years and for most of that time acts of mass violence were relatively rare occurrences.

I have this to say to all of them. You want to know why society has seemed to be come more violent lately? Well read the Constitution some time – ALL OF IT. Think about it for a long time and take it to heart, then go do something about THAT.

“How do you have patience for people who claim they love America, but clearly can’t stand Americans?”
–from The American President

Anonymous Coward says:

Re: WTF is wrong with these people?

“We the people of the United States,” (not corporate special interest groups) “in order to form a more perfect Union,” (as opposed to being divided and fighting each other) “establish Justice,” (not the DOJ’s “win by all costs even if it’s wrong” definition but rather the common definition of the word) “provide for the common defense,” (Anyone else out there feel sufficiently “defended” because of any of these things? I didn’t think so.) “promote the general Welfare” (I guess the government must have a secret definition for the work “general” that means “corporate”) “secure the Blessings of Liberty to ourselves” (By “ourselves” they mean the PEOPLE not the government and those that PAY them extra for the privilege) and our Posterity (Anyone else see this getting better for our kids? I didn’t think so either.) “do ordain and establish this Constitution for the United States of America.”

Yup, basically they’ve violated and failed at EVERY principle the founding fathers set out to achieve in drafting the Constitution.

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