On 18 August 2009, the Obama Administration issued new directives about the inspection, search, and even seizure of electronic media belonging to travelers passing through border checkpoints. This set of policies and practices has concerned immigration lawyers, constitutional attorneys, and other civil rights advocates, including the immigration attorneys at Fong & Aquino in Los Angeles.
All electronic media devices are susceptible to search: computers, hard drives, thumb-nail drives, mp3 players, iPods, mobile phones, CDs, DVDs, Blackberrys, etc.
This practice of inspecting, detaining, and even copying travelers' electronic media -- without a warrant or even suspicion -- began before the Bush Administration's so-called "war on terrorism." Given the amount personal information that people keep on their digital devices, attorneys and constitutional advocates have worried that such searches and seizures can be potentially more intrusive than having a border guard riffling through one's luggage.
In some cases, victims of these searches have suspected that the border guards had cracked password-protected files and were copying and keeping information from these devices, which were detained for periods of time ranging from minutes to weeks.
The new directives continue the Bush Administration practices, with some (in this author's view, small) degree of oversight:
- Supervisors must be present during the search,
- Border guards may still keep your electronic media device, but only if there is "probable cause" that it is connected to some illegal activity,
- If there is no reason to hold the information, it must be destroyed within 7 days,
- The traveler may ask to be in the room when the search takes place,
- Border guards are expected to consult Homeland Security attorneys if they wish to view voyagers' medical, legal, or medical records, or journalists' work, and
- there is a 30-day limit for the detention of media and devices.
If you would like to read the directive for yourself, it can be found here. --jcf