DHS Clarifies Its Un-American Search and Seizure Policy

By Brandon Lovested | in Privacy/security | 11 Aug 2008 | No Comments

Remember this oldie?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

—  4th Amendment to the Constitution of the United States of America

What a quaint idea that was: to be safe from tyrannical excesses of government, which really is a major focus of the Constitution. It is all about placing limits on the power of government. The Department of Homeland Security (DHS) doesn’t seem to acknowledge this fundamental Constitutional right. Nor did the Ninth Circuit Court of Appeals, in a stunning decision in May that upheld the DHS’s violation of the 4th Amendment by asserting its policies are reasonable. The Ninth? The most liberal of all Circuit Courts? Go figure.

Agents of the Transportation Security Agency (TSA), which is a part of the DHS, or any federal agent, may seize a laptop or any other electronic doodad without probable cause. Furthermore, they make take that device someplace else for as much time as they want. Imagine coming into the US as a US citizen and being treated like a Cold War spy: having your laptop, cell phone, or MP3 player seized and held for hours or weeks just because you were cheeky enough to leave the country for whatever reason. Shame on you. We have such nice National Parks here.

Not only can these government agents share the data on your device with other federal agencies (God help us if the FDA gets a hold of your data; they might blame THAT for the salmonella outbreak), but according to US Customs and Border officials, they can farm it out to private entities for the purposes of translation, decryption, etc.

According to comments by Senator Russ Feingold, published in Wired’s Threat Level blog:

Secretary Chertoff’s description of the newly published DHS policy on laptop searches was not just misleading – it was flat-out wrong. In an interview with Wired.com, the Secretary stated that “[w]e only do [laptop searches] when we put you into secondary [screening] and we only put you into secondary [screening] … when there is a reason to suspect something.”

But the actual policy that DHS published says the exact opposite. It does not even mention secondary screening, let alone limit laptop searches to those cases, and it expressly states that Americans’ laptops may be searched “absent individualized suspicion.”

Secretary Chertoff’s blatant mischaracterization of the DHS policy contradicts his claim to be engaging in greater “openness and transparency” on this important issue. His statements make it clearer than ever that as we work to protect our national security, Congress must also act to protect law-abiding Americans against highly intrusive searches.

What about the data retention policies of the government, much less any unnamed third party? Compound that unknown with the known abysmal data security federal government agencies have, and you have to wonder if a more insecure scenario could have been engineered.

Shall we mention the CLEAR data that was mislaid in the San Francisco Airport last week? About 100,000 travelers’ personal information associated with membership in Verified Identity Pass, Inc’s (a private company) travel security service, such as name, address, and passport number, all just lying about unencrypted on a laptop at SFO.

Security is a very real and present concern. However, becoming the thing your fear is no solution. The issues here are the unconstitutionality of this policy and the utterly inept handling of data by both the government and their private contractors. Being tyrannical is bad enough, but being tyrannical and daft is just too much.