A little-known Homeland Security policy that allows agents to search any electronic device carried by international travelers recently snagged a cruise ship passenger here.
The policy has come under fire by civil libertarians and members of Congress. The Fourth Amendment to the U.S. Constitution forbids unlawful searches and seizures by the government.
Searches of electronic devices, without a warrant or probable cause that a crime has been committed, has been official DHS policy for less than a year. The policy is backed up by decades-old federal law that gives the government broad discretion to search anyone - U.S. citizen or not - entering the country.
Timothy David Webb, a 32-year-old convicted sex offender from Woodbridge, debarked Royal Caribbean's Grandeur of the Seas at the Norfolk cruise ship terminal next to Nauticus on May 21. The ship had just returned from a Caribbean cruise.
U.S. Customs and Border Protection agents pulled Webb from the passenger re-entry line and led him to an area for a follow-up inspection, according to court records filed later in his criminal case. The criminal affidavit does not provide an explanation why Webb was singled out, but according to the law, no reason is needed.
During an inspection of Webb's laptop, agents discovered child pornography photos and videos. A more extensive search revealed graphic pornography, some involving 8-year-old boys, according to court records.
Federal agents arrested Webb on June 8, charging him with possessing and transporting child pornography.
Webb appeared in U.S. District Court on Thursday but waived his right to a preliminary hearing and a bond hearing. A federal magistrate judge ordered him jailed pending grand jury action.
His attorney, Assistant Federal Public Defender Arenda Allen, declined to comment. Federal agents declined to say whether Webb's inspection at the cruise terminal was random or whether he was specifically targeted because of his prior sex offense. Any challenge to the search would come at a later court hearing.
Just this week, the American Civil Liberties Union announced that it might challenge the policy. Unrelated to the Webb case, the ACLU filed a Freedom of Information Act request seeking a wide range of documents pertaining to the policy, including statistics on how often it is used.
"These highly intrusive government searches into a traveler's most private information, without any reasonable suspicion, are a threat to the most basic privacy rights guaranteed in the Constitution," Catherine Crump, an ACLU attorney, said in a statement.
Meanwhile, Congress has been holding hearings on the issue. A group of Democratic senators introduced the Travelers Privacy Protection Act, a bill that seeks to require Customs agents to "have reasonable suspicion of illegal activity before searching the contents of laptops or other electronic devices carried by U.S. citizens and legal residents."
U.S. Sen. Russ Feingold, D-Wis., a bill sponsor, said in a statement:
"Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, e-mails, and photographs, and examine which Web sites they visited - all without any suggestion of wrong-doing."
Business travelers have been particularly outraged by the policy because it allows the federal government to seize proprietary and secret corporate information.
At a hearing last month on the issue before the Senate Judiciary Committee, DHS Secretary Janet Napolitano said her agency, which oversees Customs, would be revising its policy to address the privacy concerns. However, she told the committee that the relatively low number of laptop searches has uncovered significant criminal activity and that the practice would continue.
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