Obama Keeps Warrantless Search Policy For Travelers From Bush Era

By Ellen Nakashima
Washington Post
Aug. 29, 2009

The Obama administration will largely preserve Bush-era procedures allowing the government to search -- without suspicion of wrongdoing -- the contents of a traveler's laptop computer, cellphone or other electronic device, although officials said new policies would expand oversight of such inspections.

The policy, disclosed Thursday in a pair of Department of Homeland Security directives, describes more fully than did the Bush administration the procedures by which travelers' laptops, iPods, cameras and other digital devices can be searched and seized when they cross a U.S. border. And it sets time limits for completing searches.

But representatives of civil liberties and travelers groups say they see little substantive difference between the Bush-era policy, which prompted controversy, and this one.

"It's a disappointing ratification of the suspicionless search policy put in place by the Bush administration," said Catherine Crump, staff attorney for the American Civil Liberties Union. "It provides a lot of procedural safeguards, but it doesn't deal with the fundamental problem, which is that under the policy, government officials are free to search people's laptops and cellphones for any reason whatsoever."

Homeland Security Secretary Janet Napolitano yesterday framed the new policy as an enhancement of oversight. "Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States," she said in a statement. "The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders."

For instance, searches conducted by U.S. Customs and Border Protection officers should now generally take no more than 5 days, and no more than 30 days for searches by Immigration and Customs Enforcement special agents. The directives also require for the first time that automated tools be developed to ensure the reliable tracking of statistics relating to searches, and that audits be conducted periodically to ensure the guidelines are being followed, officials said.

Such measures drew praise from House Homeland Security Committee Chairman Bennie Thompson (D-Miss.), who called the new policy "a major step forward," and from Rep. Loretta Sanchez (D-Calif.), who introduced legislation this year to strengthen protections for travelers whose devices are searched.

But the civil liberties community was disappointed.

"Under the policy begun by Bush and now continued by Obama, the government can open your laptop and read your medical records, financial records, e-mails, work product and personal correspondence -- all without any suspicion of illegal activity," said Elizabeth Goitein, who leads the liberty and national security project at the nonprofit Brennan Center for Justice.

Goitein, formerly a counsel to Sen. Russell Feingold (D-Wis.), said the Bush policy itself "broke sharply" with previous Customs directives, which required reasonable suspicion before agents could read the contents of documents. Feingold last year introduced legislation to restore the requirement.

Jack Riepe, spokesman for the Association of Corporate Travel Executives, said the guidelines "still have many of the inherent weaknesses" of the Bush-era policy.

Between October 2008 and Aug. 11, more than 221 million travelers passed through CBP checkpoints. About 1,000 laptop searches were performed, only 46 in-depth, the DHS said.












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