SECTION 1: TO THE ADMINISTRATIVE AGENCIES DHS, ICE & CBP ON ILLEGAL SEARCH AND SEIZURE
The above issue is a right of property issue as it involves the seizure of the personal properties of Pascal Abidor. These include his laptop, cell phone and camera. The principals involved are the rights of due procedure and detention and review in contuationof border search of information of Mr. Abidor’s gadgets. The fact that he has pictures that are associated with the terrorist groups in his laptop and camera does not equate to him being associated with the terror groups. The CBP officers have been identified that they should protect the rights of individuals from unreasonable search and seizure of personal property. The directive requires that the members of Border Patrol obtain a warrant, consent or incident to arrest in a bid to ensure that the seizure of the property is lawful. The incident in Mr. Abidor’s case is seen to violate his rights as the officers seize his property for more than five days that is identified as the limit for the detention of devices.
The above issue is also a right of privacy issue as the personal documents and information of the individual are violated. The personal properties of the party in question will usually contain sensitive information. In this case, it is important that the information is handled appropriately as directed by a supervisor. The directive on the retention and sharing of information found within the borders requires that the copies of information found should not be copied. The individual in this case is seen to be violated by the CBP officials as they illegally take up personal information from his laptop, external hard drive and cell phones. Mr. Abidor is able to realize this as he sees that most of his documents on research have been copied including his interviews. The tax returns and transcripts of a chat with his girlfriend were also taken. The information clearly lacks the appropriate involvement with terror groups.
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SECTION 2: RULE or RULES
The border patrol officers are governed by the US Customs and Border Protection (CBP) Directive No. No. 3340-049, the Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement Directive No. 7-6-1. These principals are all governed and enforced by the US Constitution. In the above example, seizure of electronic devices, it is noted that supervisory approval is required when electronic devices are seized and reviewed for a continuation of border search of information. The border patrol officers have violated these directives stated in the US Customs and Border Protection (CBP) Directive No. No. 3340-049 Section 5.3.1.1. It is noted that there are specified time frames that the electronic devices containing suspicious information should be limited however approval by a supervisor from the location of detention is required for review beyond 5 days which has not been identified for Mr. Abidor’s case.
The border search of Mr. Abidor’s electronic devices did not follow the appropriate procedures identified in US Customs and Border Protection (CBP) Directive No. No. 3340-049 Section 5.3 whereby the notification of border search is required of the border patrol officers. The individual will be required to be informed why the search on the devices is necessary a practice that was not applied by the border patrol officials. The above case is an example of the border officers following rules that apply to U.S. Immigration and Customs Enforcement (ICE) Special Agents. The U.S. Immigration and Customs Enforcement (ICE) Directive No. 7-6.1 may approve the detention of electronic devices and continued search of information within a reasonable time of no more than 30 calendar days after the individual leaves the detention location this is in accordance to Section 8.3.1 of the directive. According to section 8.1.5 of the directive the Special agents should determine whether it is appropriate to make copies of information from the electronic devices.
SECTION 3: Application/Analysis
The issue that I identified in Section 1 was that border patrol officers should not perform an illegal seizure of electronic devices and invade the privacy of the individual without significant cause for taking action. The proponents of taking the aforementioned actions will identify the need to search the information on the electronic devices as a necessary measure for ensuring national security. On one hand, the group may claim that the individual despite being a citizen of America has a clear association with a location that is associated with terror groups that have actively been at war with the United States. This may be identified as probable cause for the seizure of the electronic devices that the traveler is carrying. However, it is seen as contradictory as according to the initial review of the information by the border patrol officers does not result in a probable cause for arrest of the individual. It is seen as discriminatory for the officers to seize his devices without a court ordered warrant.
On the other hand the opponents of this action may argue that the officers did not follow the appropriate procedures that are required in the seizure and review of information on electronic devices. It is identified that the rights of the traveler Mr. Abidor have been violated based on the US Customs and Border Protection (CBP) Directive No. 3340-049 Section 5.3.5 Detention and Review in Continuation of Border Search of information. It is required that a CBP officer fills out in full a custody receipt through the completion of Form 6051D and it is offered to the individual in question. This has not been conducted by the officers attending to Mr. Abidor and hence their action can be seen as unconstitutional. The officers of the Customs and Border Patrol also fail to follow the directive on review and handling of privileged or other sensitive information. Mr. Abidor a graduate student is required to carry out a research on a particular thesis which may include interviewing of various individuals. Through copying of his research documents it is noted that his interviewees may not feel free to speak their mind as they may be subject to monitoring from the Department of Homeland Security.
SECTION 4: CONCLUSION
To come up with the rules articulated above, it is required that the administration articulate clearly the directives that each officer involved in Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) are clearly outlined to ensure that the different officers in each post understand the nature and procedures of their work. Hereby, the CBP officers will understand that they can only retain the electronic devices of the individual that for beyond five days with the approval of their supervisors. This is contrary to the ICE Special Agents who have the directive to make a decision to retain the devices up to a maximum of30 Calendar days. The contradiction within these directives has been identified as a cause for officers violating their jurisdiction and objectives to ensure freedom of the citizens. The one hundred and fourteenth Congress of the USA through its revision of the USA Freedom Act (H.R. 2048) should ensure that the directives of TITLE VII-ENHANCED NATIONAL SECURITY PROVISIONS Sec. 701 Emergencies involving non-United States persons and Sec. 702 Preservation of Treatment of non-United States persons travelling outside the United States as agents of foreign powers are enacted by the CBP officers. Hereby, the fact that Mr. Abidor has a second French passport that he used to travel to Jordan and Lebanon and not in the US passport were seen as a cause for further suspicion on the individual.
The officers of border patrol are also required to perform their duties as directed in the procedural directive of the US Customs and Border Protection (CBP) Directive No. 3340-049 Section 5. This is in terms of border searches, review and handling of privileged information and the detention and review in continuation of border search. The failure to articulately follow these procedural directives will result in the violation of the constitutional rights of the involved party. The information of the individual that is considered private should be clearly identified within the directive where the USA FREEDOM Act (H.R. 2048) is also considered in ensuring that the officers continue in their objective of maintaining national security of the US citizens. The USA Patriot Act: Preserving Life and Liberty should be instituted in the directives of the CBP officers’ procedures whereby information is monitored in a bid to counter terrorism to ensure that the events of September 11, 2001 are not repeated.
SECTION 5: OPINION
Through the process of acting in accordance to the National Security and protection of the individual rights, it is necessary that the officers involved in border patrol receive the appropriate approval from their supervisors to ensure that procedures are followed to the letter. The various CBP officers will seek assistance from other customs agencies such as the ICE Special Agents as a means of following the US Customs and Border Protection (CBP) Directive No. 3340-049 Section 5.3.2 Assistance by other Federal Agencies. This will ensure that the CBP officers have followed the various procedural directives stipulated in the subject of border search of electronic devices containing information.
