Sales in Washington Post: Playing With Fire

Questions asked of U.S. citizens and others crossing the border to enter the U.S. have the potential to create problems, says Professor Nathan Sales in a Washington Post article looking at the government's expanded powers to search and seize travelers' personal items such as phones and laptops at border crossings. Sales said that while in some cases it might be appropriate to question an individual, when you do, "you're playing with fire."

Sales, a former Department of Homeland Security (DHS) deputy assistant secretary for policy development, said, "If you want to ask questions about a person's churchgoing or charitable contributions, you need to take steps to ensure it doesn't stray from legitimate questions to harassment. You need to have a clearly established policy that these sorts of questions are only asked in certain circumstances, and only when we have some indication to believe that a particular mosque or a particular charity might have some sort of terrorist tie."

The government's search authority at borders is now subject to the broadest policy to date, effectively extending the lowest legal standard to the retention, seizure and copying of documents and electronic devices without a requirement for suspected wrongdoing. Civil liberties groups have raised concern over the protection of travelers' constitutional rights under the First Amendment in the face of the government's increased powers at the borders.

Extended Powers to Search Travelers at Border Detailed, The Washington Post, September 23, 2008. By Ellen Nakashima. 

"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.

"'For 20 years the government has at least implicitly recognized there were some First Amendment restrictions on reading and copying documents,' said Shirin Sinnar, a staff attorney with the Asian Law Caucus, which along with the Electronic Frontier Foundation sued the government under the Freedom of Information Act for disclosure of border search policies. 'It's disturbing now that the government has jettisoned that policy in favor of one that violates First Amendment rights.'

"DHS spokeswoman Amy Kudwa said the updating of policies reflects an effort to be more transparent. In an e-mail, she wrote that the decision of U.S. Customs and Border Protection (CBP) 'to change some of the standards in its old policies reflects the realities of the post-9/11 environment, the agency's expanded mission and legal authorities, and developments in the law, including the Homeland Security Act of 2003. 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' without requiring suspicion of a particular traveler.

"The 1986 policy was issued after a lawsuit was filed by a group of activists returning from Nicaragua who had their diaries, datebooks and other personal papers seized and photocopied by customs officers and shared with the FBI. The government argued that the customs agency had the right to enforce a law against importing subversive literature.

"'Essentially they were using that as a pretext to do intelligence gathering on critics of our policies on Nicaragua,' said David D. Cole, a Georgetown University law professor who was then a lawyer at the Center for Constitutional Rights, representing the activists suing the government in Heidy v. U.S. Customs Service.

"To set guidelines on document searches, the agency issued the 1986 directive that made clear that its officers 'as a general rule ... should not read personal correspondence.' But, the policy noted, officers had the authority to scan material for evidence of violation of laws pertaining to copyright, sedition and contraband. With reasonable suspicion of a violation, they could detain the material. With probable cause of a violation, they could seize and copy it.

"In July 2007, the government dropped the requirement that there be reasonable suspicion to review material but specified that the review had to take place in connection with laws enforced by CBP, according to a copy of a policy the groups obtained.

"Then, this July, the government issued its broadest policy to date regarding information searches at the border, allowing documents and electronic devices to be detained for an unspecified period."

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