The Constitution Project (TCP) characterized DHS policy to seize and search electronic devices without reasonable suspicion as an infringement on the rights of American citizens.
"Searches of our laptops and smart phones -- without reasonable suspicion -- can easily result in a breach of our privacy rights, given the amount of personal information we carry on those devices," Sharon Bradford Franklin, TCP senior policy counsel, said in a statement.
"Courts have historically recognized a limited exception to the Fourth Amendment permitting routine searches at the border, but the scope of those searches has vastly expanded given the storage capacity of electronic devices today. It's a classic example of technology outpacing our legal system, and the government must reform its policy to restore Fourth Amendment protections," she added.
In its report Suspicionless Border Searches of Electronic Devices: Legal and Privacy Concerns with The Department of Homeland Security's Policy, a TCP task force determined that DHS searched the electronic devices of more than 6,500 people, about half of whom were US citizens, between Oct. 1, 2008, and June 2, 2010, at US border ports of entry.
Calling this a violation of Fourth Amendment rights, TCP recommended that US Customs and Border Protection (CBP) and US Immigration and Customs Enforcement (ICE) change directives to its agents to prohibit search of information in the personal devices of American citizens without reasonable suspicion or evidence of a crime.
The think tank further called on limiting "suspicionless" searches of the devices of foreign travelers to the United States as well. However, the TCP report noted that a search of device to ensure that it was functional and not disguising a bomb would be justified.
The TCP report further recommended a clear rebuke of racial or religious profiling in border searches.
Moreover, for US citizens, CBP and ICE agents should require a warrant based o probable cause to continue search electronic devices beyond 24 hours in the case of reasonable suspicion, the report stated. Should authorities require a warrant from a court under the Foreign Intelligence Surveillance Act (FISA), they could extend that time period to seven days to account for the longer period of time required to obtain a FISA warrant, the report acknowledged.
CBP and ICE also should synchronize their policies to remove any differences between them, the report suggested. The agencies should regularly audit border searches of electronic data and cite statistics on "the number of people whose devices are searched, the number of devices detained beyond 24 hours, and the number of devices from which data was retained," the report added.
In some cases, DHS agents kept electronic devices for up to a year, which was unjustified, the report said. CBP and ICE also would search through data unrelated to any cause for which they might retain devices, looking through personal e-mail accounts, photographs, calendars, and other files not related to any cause for retaining the electronic device. CBP and ICE directives should limit such searches, the report demanded.
While courts have recognized an exception to Fourth Amendment protection against searches at US borders, much of the rationale beyond such exemption is unjustified, the report said. The searches have expanded beyond the original interpretation of the exception to stop illegal goods or people from entering the country to invasive searches of personal information contained in electronic devices, the report argued.
"Historically, the scope of what was covered by the border search exception was fairly limited, since the exception is confined to the items a traveler carries across the border," the report read. "As a practical matter, most private documents, letters, photographs, and other personal effects would remain in an individual's home, safeguarded by full Fourth Amendment protections and the warrant requirement.
"With today's technology, however, people can and do travel with vast quantities of private, personal information stored on their laptops and other electronic devices," it added.
The TCP report was developed by a 19-member task force, which included William Sessions, former FBI director; Asa Hutchinson, former DHS official in charge of border and transportation security; and Mary McCarthy, a former CIA official.