Bill Would Limit Customs's Power to Seize and Search Laptops

Democrats offer measure to require border agents to establish a "reasonable suspicion" before search.

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Democrats in Congress are proposing legislation to limit the authority of customs agents to search and duplicate Americans' laptops, PDAs, and other electronic devices at border crossings.

The move follows the release of documents showing that the U.S. Customs and Border Protection agency broadly expanded the authority of agents to search and duplicate materials from travelers entering the country without the requirement of reasonable suspicion.

Two Democratic senators, Russ Feingold of Wisconsin and Maria Cantwell of Washington, have cosponsored a bill that would require customs agents to establish a "reasonable suspicion of illegal activity" before searching the contents of laptops or other devices carried by U.S. citizens entering the country. The measure would also limit the amount of time that officials can detain laptops and other devices without a court order and forbids the use of race, ethnicity, religion, or national origin in search selection. A similar bill has been introduced in the House of Representatives.

The legislative move comes on the heels of documents released this month under the Freedom of Information Act that revealed how customs quietly changed its policy guidelines this year. A series of news reports documented the practice.

In June, U.S. News described the case of a freelance journalist who had his laptop seized by customs.

According to documents obtained by the Electronic Frontier Foundation, customs loosened restrictions on the examination of travelers' documents and papers that had existed since 1986. At that time, customs agents had the authority to read a traveler's documents only if they had a reasonable suspicion that the material would reveal violations of the law.

In 2007, however, customs agents were given far greater latitude to "review and analyze" papers without a particular reason for suspicion. Moreover, agents, who were previously limited to copying documents only when they had probable cause, were given broader authority to copy travelers' papers and to retain the papers for a "reasonable period of time" to conduct a more detailed search. The new bill specifies that materials held for longer than 24 hours require a warrant or court order.

The practice of customs officials searching and, in some instances, duplicating electronic materials at the border came in the wake of several federal court decisions that found that agents do not require a reasonable suspicion. "Border searches also have been helpful in limiting the movement of terrorists, individuals who support their activities, and threats to national security," Jayson Ahern, a deputy commissioner at customs, told lawmakers this summer.

Department of Homeland Security Secretary Michael Chertoff, who oversees customs, wrote in defense of the program that it has netted child pornography and terrorist propaganda. "Legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed," Chertoff wrote.