Homeland Security restricts laptop searches at border

The Obama Administration has taken a first step toward restricting the laptop search policy that subjected journalists’ confidential information to scrutiny by border officials, but in the end still defends the practice.

The Department of Homeland Security announced a new policy that will, among other things, require the authorization by a supervisor before a border agent can confiscate an electronic device for a more thorough search. But agents will still be able to search any such devices, and will be able to keep them for five days, even if there is no suspicion they contain evidence of a crime.

The new directives mention the interests of journalists in keeping confidential information out of government hands only once. One section notes:

Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate CBP systems of records.

The section is purposely vague, although it does allow for review by an agency attorney (no word on how long that will extend the confiscation). Presumably, the "any applicable federal law" would include the Privacy Protection Act of 1980, which forbids the search and seizure of a journalist’s work product unless there is reason to believe the materials are related to a crime committed by the person, or to otherwise avert death or serious bodily harm to another.

The search practice was examined by a Senate subcommittee last year, which held a hearing that included testimony from reporters who had been subject to searches.