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Government Directive Addresses Traveler's Attempt To Prevent Search In A Timely Fashion
By Martin Hill
LibertyFight.com
8.29.09
After reading an excellent article by Scott M. Fulton, III entitled DHS: Expect your computer to be seized without suspicion, I clicked on one of the four links he included, Border Searches of Electronic Devices. Referred to as 'Directive No. 7-6.1" and issued on August 19, 2009, the ICE Immigrations & Customs Enforcement document contains some interesting info which deserves to be examined. Few people probably read such dry directives, so I read it and have posted a brief overview of the interesting and relevant sections of it.
Section 1.1 begins "This Directive provides legal guidance and establishes policy and procedures within U.S. Immigration and Customs Enforcement (ICE) with regard to border search authority to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border, the functional equivalent of the border"...
Let's stop right there. The term "functional equivalent of the border" is a tricky and subjective term, as evidenced by the great work of Terry Bressi of CheckpointUSA.org, and his refusal to answer questions at internal suspicionless checkpoints coducted by ICE. I highly recommend his videos to everyone as an excellent educational tool as to how to exert your rights.
Moving further into the document, once again the bugaboo of 'terr'ism' and drug smuggling are used as a pretext to seize computers and cell phones, cameras, and any other number of devices:
4. BACKGROUND. ICE is responsible for ensuring compliance with customs, immigration, and other Federal laws at the border. To that end, Special Agents may review and analyze computers, disks, hard drives, and other electronic or digital storage devices. These searches are part of ICE'S long-standing practice and are essential to enforcing the law at the United States border. Searches of electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography; laundering monetary instruments; violations of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.
5.2 Electronic Devices. Any item that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and any other electronic or digital devices.
"Individualized suspicion" is not required to seize property, according to ICE, although one sections pays lip service to "constitutional, privacy, civil rights, and civil liberties training":
6.1-6.3: ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth herein.
7.2 Special Agents in Charge (SACS) and Attaches are responsible for: Border Searches of Electronic Devices 1) Implementing the provisions of this Directive and ensuring that Special Agents in their area of responsibility (AOR) receive a copy of this Directive and are familiar with its contents; 2) Ensuring that Special Agents in their AOR have completed any training programs relevant to border searches of electronic devices, including constitutional, privacy, civil rights, and civil liberties training related to such searches, as may be required by ICE Headquarters;
Section 7.4 outlines how the status of a search analysis is to be given by ICE within 10 days of the seizure. Section 8.1 2) entitled "Knowledge and Presence of the Traveler", outlines "To the extent practicable, border searches should be conducted in the presence of, or with the knowledge of, the traveler". It goes on to state "Permitting an individual to be present in the room during a search does not necessarily mean that the individual will be permitted to witness the search itself", if doing so reveals the governments techniques or operational secrets. Section 8.1 3) is perhaps the most galling of all, stating "Consent Not Needed. At no point during a border search of electronic devices is it necessary to ask the traveler for consent to search."
Section 8.1 5) states "Devices will be returned to the traveler as expeditiously as possible at the conclusion of a negative border search". 8.2 4) titled "Notice to traveler" states "Whenever ICE detains, seizes, or retains original electronic devices, the Special Agent is to provide the traveler with a copy of the applicable chain of custody form or other appropriate documentation."
Section 8.3., entitled Duration of Border Search dicusses "reasonable time" and includes some interesting information regarding their views on a traveller's attempts to prevent the search of his property. They refer to the fact that "courts have reviewed" the issue, and although they don't reference any specific court cases,ICE seems to be aware of possible legal repercussions, specifically mentioning the traveller who "has taken affirmative steps to prevent the search of his or her property in a timely fashion". They reference this despite their earlier claim in section 8.1 3), where they contend that the traveler has no say in the matter and that consent is not needed. This serves as a good reminder that we should always invoke what I consider our God given right to privacy and exert our Constitutional protections.:
3) In determining "reasonable time," courts have reviewed the elapsed time between the detention and the completion of the border search, taking into account any additional facts and circumstances unique to the case. As such, ICE Special Agents are to document the progress of their searches, for devices and copies of information therefrom, and should consider the following factors: a) The amount of information needing review; b) Whether the traveler was deprived of his or her property and, if so, whether the traveler was given the option of continuing his or her journey with the understanding that ICE would return the property once its border search was complete or a copy could be made; c) Whether assistance was sought and the type of such assistance; d) Whether and when ICE followed up with the agency or entity providing assistance to ensure a timely review; e) Whether the traveler has taken affirmative steps to prevent the search of his or her property in a timely fashion; and f) Any unanticipated exigency that may arise.
Section 8.5. 1)a) is the first time the document mentions probable cause. So it seems that the government's contention is that seizure does not require probable cause, but retention of the device does:
8.5 Retention, Sharing, Safeguarding, And Destruction. 1) By ICE a) Seizure and Retention with Probable Cause. When Special Agents determine there is probable cause of unlawful activity-based on a review of information in electronic devices or on other facts and circumstances-they may seize and retain the electronic device or copies of information therefrom, or relevant portions thereof, as authorized by law.
Section 8.6 reiterates their claim that all electronic devices are subject to search, yet outline vague guidelines regarding legal confidentiality, trade secrets, and medical privacy:
8.6. Review, Handling, and Sharing of Certain Types of Information. 1) Border Search. All electronic devices crossing U.S. borders are subject to border search; a claim of privilege or personal information does not prevent the search of a traveler's information at the border. However, the nature of certain types of information are subject to special handling by Special Agents, whether through policy or laws such as the Privacy Act and the Trade Secrets Act.
The document is signed by "John Morton" Assistant Secretary U.S. Immigration and Customs Enforcement. I noticed one odd thing about this; when you copy paste the name "J6hn Morton" from the ICD PDF document,the letter "o" in the name John appears as a number 6.
The original document, ICE Directive 7-6.1 can be found here: click here
