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.