Here’s a riddle: Why did the US customs agents search your laptop at the airport?
Answer: Oh, well, it’s hard to say. They just kind of had a hunch that you were suspicious, you know?
It sounds like a hyperbolically offhand rationale to justify disregarding travelers’ constitutional rights against unreasonable searches (at least, the rights of US citizens, supposedly guaranteed by the Fourth Amendment), but the glibness is barely exaggerated.
Here’s the actual wording used by the Department of Homeland Security (DHS) to explain why it can’t change its electronic device search policies:
...we have been presented with some noteworthy [Customs and Border Protection (CBP)] and [Immigration and Customs Enforcement (ICE)] success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment.
Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.
The quote comes from a statement [PDF] released by DHS on Wednesday.
The statement is in response to a Freedom of Information Act filed by the American Civil Liberties Union (ACLU). It includes a so-called complete version of its justification of warrantless border searches of laptops, of which it released an executive summary in February.
The executive summary [PDF] put out in February barely addressed questions of if and how warrantless searches violate First and Fourth Amendment rights.
Basically, DHS’s rationale for warrantless searches being Constitutionally OK amounted to “because we said so.”
An example of the executive summary’s “we don’t have to explain ourselves to you” style with regards to the First Amendment:
Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.
The statement released on Wednesday has constitutional analysis, but it’s largely redacted.
In some of its non-redacted reasoning, however, DHS says that border agents have to act fast. If the legal threshold to search device content were to be raised, resulting litigation would muck thinks up:
... commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search...
The litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches...
Although this Office does not advocate arbitrary decision-making, we understand that there may be occasions where officers have only a few seconds to make important decisions about admissions and searches, and where they lack the opportunity to use routine criminal investigative techniques to develop reasonable suspicion or probable cause to justify the inspection of containers.
Officers must therefore frequently make important choices based on inadequate and imperfect information.
The ACLU takes issue with this notion.
ACLU legal fellow Brian Hauss wrote in a blog posting on Wednesday that the government has plenty of ways to keep sensitive information from leaking out in court:
The government has numerous resources at its disposal to prevent the disclosure of sensitive information.
The "state secrets privilege," to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic.
Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built.
The Feds also nixed suggestions that ICE and CBP revert to a 1986 policy that allowed agents to “briefly peruse” a traveler’s possessions to determine if there was probable cause or a reasonable suspicion for a further seizure.
Such a policy is “not tenable” given the capacity of modern devices, DHS wrote:
Gigabytes of information may be stored in password-protected files, encrypted portions of hard drives, or in a manner intended to obscure information from observation.
An on-the-spot perusal of electronic devices following the procedures established in 1986 could well result in a delay of days or weeks; even a cursory examination of the contents of a laptop might require a team of officers to spend days or weeks skimming the voluminous contents of the device.
At the same time, a firm time limit for completing a search risks allowing a wrongdoer to “run out the clock” by encrypting and password-protecting his device, or traveling with voluminous amounts of documents, or other measures to make the search very time consuming.
None of this is surprising.
Civil liberties advocates have long referred to US ports of entry as “Constitution-free zones“.
The heavy black ink of redacted Constitutional analysis, to my mind, symbolizes the black hole where travelers’ Constitutional rights go to die.