Report: Limit Searches of Electronic Devices

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by Pete Yost

WASHINGTON (AP) - Travelers carry so much personal information on laptops, computer disks and smartphones that routine searches of electronic devices at the nation's borders are too intrusive now, in the view of a bipartisan panel that includes a Republican conservative who once headed border security.

A report released recently by The Constitution Project, a bipartisan legal think tank, recommended that the Homeland Security Department discontinue its policy of searching electronic devices without a reasonable suspicion of wrongdoing.

From Oct. 1, 2008, to June 2, 2010, over 6,500 people almost half of them U.S. citizens had electronic devices searched at the border, the report found.

Technology is developing so much more quickly and the law needs to catch up,'' Sharon Bradford Franklin, The Constitution Project's senior policy counsel, said in a recent interview. Franklin said safeguards could be instituted administratively without additional legislation.

DHS is responsible for protecting the border but must do so in a way that doesn't harm the lawful flow of commerce, said Asa Hutchinson, a former Republican congressman from Arkansas who was DHS undersecretary for border and transportation security during President George W. Bush's administration. Hutchinson was one of 19 experts who developed the report.

I don't want anything to diminish security, but some business travelers have had their laptops held for months on end and a reasonable suspicion requirement for U.S. persons is a proper balance,'' said Hutchinson, who also headed the Drug Enforcement Administration during Bush's presidency.

DHS spokesman Matt Chandler said searches of laptops and other electronic media are used in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country.'' He said the department has explained the searches, their privacy impact and the policies behind them clearly to the public.

Laptops and other electronic devices may be subject to searches for violations of law such as child pornography, narcotics smuggling, ties to terrorism or other criminal activity. DHS says less than 1/10th of 1 percent of travelers are subjected to laptop computer searches.

The result: growing tension between Fourth Amendment guarantees against unreasonable search and seizure and the border searches that historically had been viewed as a narrow exception to its requirements, the report concluded.

The Constitution Project found that suspicionless border searches open the doors to racial or religious profiling and cited a report in 2008 by the nonpartisan Congressional Research Service.

If a customs official could conduct a search without providing cause, it would be difficult to deter ethnic profiling because the official would not need to explain why he conducted the search, the CRS report said.

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