Border Patrol Can Look at Your Porn

New regulations supposed to tighten controls on searches

Tuesday, Sep 1, 2009  |  Updated 11:31 AM PDT
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Those photos from that night in Tijuana? The Border Patrol may want to take a peek.

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Got racy pictures in your digital camera from that vacation in Cabo? You might be interested to know that border officials have a right to take a peek, according to new regulations announced last week by the Department of Homeland Security.

The new regulations are supposed to tighten controls on how searches of people's laptops, digital cameras and cell phones are conducted, reported the North County Times in San Diego County. But civil rights groups say the new regulations don't go far enough to protect people's privacy.

"Rather suddenly, we are required to open our entire lives when we cross the border back into the U.S.," said Kevin Keenan, executive director of the American Civil Liberties Union of Imperial and San Diego Counties.

The ACLU filed a lawsuit earlier this year to get information from the government that was collected during these searches.

Department of Homeland Security Secretary Janet Napolitano said the searches of electronic devices at the border are legal and necessary to protect the country.

"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States," Napolitano said in a news release. "The new directives ... strike a balance between respecting the civil liberties and ... ensuring DHS can take the lawful actions necessary to secure our borders."

Courts have long held that customs officials at border checkpoints, such as the San Ysidro Port of Entry, have wide discretion to search people's vehicles and belongings. However, civil rights groups say that searches of electronic devices are far too invasive.

"It's hard to see why the government can see through your vacation photos just because you're crossing the border," said Catherine Crump, an attorney with the ACLU's First Amendment Working Group, which filed the lawsuit.

Given all the personal details that people store on digital devices, border searches of laptops and other gadgets can give law enforcement officials far more revealing pictures of travelers than suitcase inspections might yield.

Civil liberties advocates say the government has crossed a line by examing electronic contact lists and confidential e-mail messages, trade secrets and proprietary business files, financial and medical records and other deeply private information.

Last July, amid mounting outside pressure, the Bush administration issued a formal policy stating that federal agents can search documents and electronic devices at the border without a warrant or even suspicion.

The procedures also allowed border agents to retain documents and devices for "a reasonable period of time" to perform a thorough search "on-site or at an off-site location."

Crump said her group hoped the Obama administration would reverse the policy. When it didn't, attorneys with the ACLU filed a Freedom of Information Act request seeking to obtain the government information.

After the government refused to comply with the request, the ACLU filed the lawsuit, which is still ongoing.

The announcement of the new regulations do not change the lawsuit, Crump said.

The new directive put more restrictions on the searches:

A supervisor must be present during these searches.

  • As before, Customs and Border Protection officials can keep the electronic device or information on it only if they have probable cause to believe it is connected to a crime. But now, if there is no legal reason to hold the information, it must be destroyed within seven days. 
  • Officers must consult agency lawyers if they want to view a traveler's sensitive legal material, medical records or a journalist's work-related information.
  • Immigration and Customs Enforcement agents cannot keep property for more than 30 days, depending on the circumstances of each case.

The searches, which predate the Sept. 11, 2001, terrorist attacks, have uncovered everything from martyrdom videos and other violent jihadist materials to child pornography and stolen intellectual property, according to the government. It's not clear how many of those laptops had embarrassing pics or videos on them, however.

Between Oct. 1, 2008, and Aug. 11 of this year, Customs and Border Protection officers processed more than 221 million travelers at U.S. borders and searched about 1,000 laptops, of which 46 were "in-depth" searches, the Homeland Security Department said.

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