DHS Announces Guidance Regarding Computer Searches

Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced new guidance for searches of electronic devices at U.S. ports of entry. The guidance provides additional information regarding how DHS conducts searches and when travelers may expect return of their electronic property.

In the past, DHS searched a briefcase or backpack and examined photographs, work material, notes, or journals. With the advent of electronic media storage especially in laptop computers, the volume of information which a traveler frequently carries has dramatically increased. DHS searches of laptops have raised privacy concerns as to the policies governing searches of such devices. DHS has increasingly focused on electronic searches because, according to DHS, electronic storage devices have become the latest method of smuggling digital contraband into the U.S.

As background, U.S. laws authorize DHS to conduct searches for all travelers at U.S. ports of entry, including U.S. citizens. The searches may be conducted without a warrant and without suspicion.
DHS will follow certain principles in conducting electronic searches. It seeks to: (1) Be transparent in providing notice to the traveler of how it will handle personal identifiable information; (2) Gain participation of the traveler; (3) Provide the traveler with the authority which permits the collection of personally identifiable information; (4) Minimize both personally identifiable information and time which such DHS retains information; (5) Use the personally identifiable information only for purposes stated in the notice to the traveler; (6) Ensure that the personally identifiable information is accurate, relevant, timely and complete; (7) Secure personally identifiable information of the traveler; and (8) Remain accountable for complying with the foregoing principles.

In conducting inspections of travelers at U.S. ports of entry, DHS addresses any initial concerns regarding a traveler. If more resolution is needed, a DHS officer may refer the traveler and his or her possessions for a secondary inspection. At any point, DHS may elect to search the traveler’s belongings including electronic media devices.

Should DHS search an electronic device, once all concerns have been addressed, DHS returns the device to the traveler. Should DHS detain the device, typically it does so for up to 30 days unless extenuating circumstances exist. Note that DHS may copy the contents of electronic devices instead of detaining the device, with or without the traveler’s knowledge or consent. DHS policy is to detain no more than 30 days without supervisory approval. Should DHS establish probable cause, it can seize the device, and under some circumstances forfeit the device to the government.

DHS advises that between October 1, 2008, and August 11, 2009, it inspected approximately 221,000,000 people and searched approximately 1,000 laptops. Of the 1,000 laptop searches, only 46 DHS searched were in-depth.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com.