Government Search and Seizure Powers Have Gradually Expanded Since 9-11

By Matthew Harwood

The U.S. federal government has expanded its power to search, seize, detain, and copy documents as well as information contained on electronic devices, such as laptops, entering the United States because of the threat from terrorists, says the Department of Homeland Security (DHS).

According to The Washington Post:

In July, the Department of Homeland Security disclosed policies that showed that federal agents may copy books, documents, and the data on laptops and other electronic devices without suspecting a traveler of wrongdoing. But what DHS did not disclose was that since 1986 and until last year, the government generally required a higher standard: Federal agents needed probable cause that a law was being broken before they could copy material a traveler was bringing into the country.

The changes are part of a broader trend across the government to harness technology in the fight against terrorism. But they are taking place largely without public input or review, critics said, raising concerns that federal border agents are acting without proper guidelines or oversight and that policies are being adopted that do not adequately protect travelers' civil liberties when they are being questioned or their belongings searched.

Civil libertarians and privacy advocates also fear the government's relaxation of procedures that govern how information is distributed to other government and law enforcement agencies.

Previously, customs officers could only share information of a seditious nature with another agency if that agency agreed to follow U.S. Customs and Border Protection's policies on data retention. Under the new policy, according to the Post, CBP may share information with any agency if there is suspicion a law enforced by it has been violated.

DHS spokeswoman Amy Kudwa, however, told Security Management that the Post's language was ambiguous and she restated CBP's policy on its collaboration with other angencies as this: "[A]s noted in the July 16, 2008, policy, [CBP may] seek the assistance and expertise of other agencies in understanding merchandise or information that is presented for examination at the border."

"CBP does not collect information for any other agency," she added. "CBP officers are trained to know under what circumstances sensitive law enforcement information may be shared and with whom."

Despite the government's previous internal policies of probable cause before copying information carried by a traveler, the courts (including the 9th Circuit Court, which recently heard a case on the topic) have consistently ruled that the U.S. border is a constitutionally unique place.

The "border search doctrine" gives border agents the latitude to conduct suspicionless and warrantless searches to stop the entry of dangerous or illegal people and materials into the United States. In the 9th Circuit Court's recent decision, it ruled laptop searches and seizures do not deserve the same constitutional protection that homes are guaranteed.

In an e-mail reply to the Post, DHS spokeswoman Amy Kudwa wrote, "Although certain aspects of the policies have changed, the policies have always reflected the notion that officers have the constitutional authority to inspect information presented at the border."


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