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:
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“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”:
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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.:
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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:
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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:
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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 following are various excerpts of ICE Directive 7-6.1 which I referred to in this article.:
http://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf
DISTRIBUTION: ICE DIRECTIVE NO.: 7-6.1 ISSUE DATE: August 18,2009 EFFECTIVE DATE: August 18,2009 REVIEW DATE: August 18,2012
SUPERSEDES: See Section 3 Below.
DIRECTIVE TITLE: BORDER SEARCHES OF ELECTRONIC DEVICES
Border Searches of Electronic Devices
1.1. 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, and the extended border to ensure compliance with customs, immigration, and other laws enforced by ICE. This Directive applies to searches of electronic devices of all persons arriving in, departing from, or transiting through the United States, unless specified otherwise. 1.2. This Directive applies to border search authority only. Nothing in this Directive limits the authority of ICE Special Agents to act pursuant to other authorities such as a warrant, a search incident to arrest, or a routine inspection of an applicant for admission.
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.
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. Assistance to complete a border search may be sought from other Federal agencies and non-Federal entities, on a case by case basis, as appropriate. When U.S. Customs and Border Protection (CBP) detains, seizes, or retains electronic devices, or copies of information therefrom, and turns such over to ICE for analysis and investigation (with appropriate documentation), ICE policy will apply once it is received by ICE. Nothing in this policy limits the authority of Special Agents to make written notes or reports or to document impressions relating to a border encounter in ICE’S paper or electronic recordkeeping systems.
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; and
7.4 When ICE receives electronic devices, or copies of information therefrom, from CBP for analysis and investigation, ICE Special Agents are responsible for advising CBP of the status of any such analysis within 10 calendar days, and periodically thereafter, so that CBP records may be updated as appropriate. For example, “search ongoing”; “completed with negative results”; “returned to traveler”; or “seized as evidence of a crime.”
8.1 2) Knowledge and Presence of the Traveler. To the extent practicable, border searches should be conducted in the presence of, or with the knowledge of, the traveler. When not practicable due to law enforcement, national security, or other operational concerns, such circumstances are to be noted by the Special Agent in appropriate ICE systems. 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 permitting an individual to witness the search itself could reveal law enforcement Border Searches of Electronic Devices techniques or potentially compromise other operational concerns, the individual will not be permitted to observe the search. 3) Consent Not Needed. At no point during a border search of electronic devices is it necessary to ask the traveler for consent to search.
8.1 5) Originals. In the event electronic devices are detained, the Special Agent should consider whether it is appropriate to copy the information therefrom and return the device. When appropriate, given the facts and circumstances of the matter, any such device should be returned to the traveler as soon as practicable. Consultation with the Office of the Chief Counsel is recommended when determining whether to retain a device in an administrative immigration proceeding. Devices will be returned to the traveler as expeditiously as possible at the conclusion of a negative border search.
8.2 4) Notice to traveler. 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 ————- 8.3. Duration of Border Search. 1) Special Agents are to complete the search of detained electronic devices, or copies of information therefrom, in a reasonable time given the facts and circumstances of the particular search. Searches are generally to be completed within 30 calendar days of Border Searches of Electronic Devices the date of detention, unless circumstances exist that warrant more time. Such circumstances must be documented in the appropriate ICE systems. Any detention exceeding 30 calendar days must be approved by a Group Supervisor or equivalent, and approved again every 15 calendar days thereafter, and the specific justification for additional time documented in the appropriate ICE systems. 2) Special Agents seeking assistance from other Federal agencies or non-Federal entities are responsible for ensuring that the results of the assistance are received in a reasonable time (see Section 8.4(5)). 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.
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.
8.5 1) e) Destruction. Copies of information from electronic devices, or portions thereof, determined to be of no relevance to ICE will be destroyed in accordance with ICE policy governing the particular form of information. Such destruction must be accomplished by the responsible Special Agent within seven business days after conclusion of the border search unless circumstances require additional time, which must be approved by a supervisor and documented in appropriate ICE systems. All destructions must be accomplished no later than 21 calendar days after conclusion of the border search.
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.
8.6 2) b) Leaal Information. Special Agents may encounter information that appears to be legal in nature, or an individual may assert that certain information is protected by the attorney-client or attorney work product privilege. If Special Agents suspect that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of ICE, the ICE Office of the Chief Counsel or the appropriate U.S. Attorney’s Office must be contacted before beginning or continuing a search of the document and this consultation shall be noted in appropriate ICE systems. c) Other Sensitive Information. Other possibly sensitive information, such as medical records and work-related information carried by journalists shall be handled in accordance with all applicable federal law and ICE policy. Although there is no Federal legal privilege pertaining to the doctor-patient relationship, the inherent nature of medical information warrants special care for such records. Questions regarding the review of these materials shall be directed to the ICE Office of the Chief Counsel and this consultation shall be noted in appropriate ICE systems.
10. NO PRIVATE RIGHT STATEMENT. This Directive is an internal policy statement of ICE. It is not intended to, and does not create any rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United States, its departments, agencies, or other entities, its officers or employees; or any other person. Approve d – J6hn Morton Assistant Secretary U.S. Immigration and Customs Enforcement J6hn Morton
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