New Directives for Border Searches of Electronic Media

Yesterday, U.S. Department of Homeland Security Jane Napolitano announced that her department is releasing new directives concerning border searches of electronic media. Napolitano said the new procedures are “designed to reflect broad considerations of civil liberties and privacy protections.”  The directives provide clarity on when the U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE) may conduct searches, which promote national security and deter criminal activities, including child pornography or copyright infringement.

The Department of Homeland Security (DHS), which has provided a list of the new directives on its web site, says CBP dealt with more than 221 million travelers at U.S. ports of entry between October 1, 2008 and August 11, 2009.  During that period, 1000 laptops were searched and only 46 received “in-depth” searches.  DHS says the new rules will help improve “transparency, accountability, and oversight," while allowing the department to conduct lawful searches necessary for security. See here for the ICE document and here for the CBP document. 

In order to ensure that people’s rights are upheld, the DHS Privacy Office released a Privacy Impact Assessment.  The DHS Civil Rights and Civil Liberties Office will release a Civil Liberties Impact Assessment in the next 120 days.  These statements are designed to help educate the public about how the policies and procedures surrounding electronic searches will protect individuals’ privacy and rights.  The two offices are working with CBP on training materials so that personnel are prepared to enforce the law correctly.