The American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the National Association of Criminal Defense Lawyers (NACDL) have brought a federal lawsuit (.pdf; 868KB) against an Obama administration policy allowing suspicionless search and seizure of electronic devices—laptops, smart phones, digital cameras, etc.—by US border officials. The lawsuit claims the Department of Homeland Security’s (DHS) policy permitting border agents to search, copy, and confiscate electronic devices is unconstitutional.
The lawsuit was filed on behalf of the NACDL, the National Press Photographers Association (NPPA), and Pascal Abidor, a 26-year-old Islamic Studies PhD student with dual French-American citizenship whose laptop was searched and confiscated at the Canadian border.
Abidor was travelling from Montreal to New York on Amtrack when he was questioned, handcuffed, taken off the train, and kept in a holding cell before being released without charge several hours later. His laptop, the password for which he was forced to enter, was confiscated and when it was returned 11 days later, there was evidence that his personal files had been searched.
“As an American, I’ve always been taught that the Constitution protects me against unreasonable searches and seizures. But having my laptop searched and then confiscated for no reason at all made me question how much privacy we actually have,” said Abidor in an ACLU media release. “This has had an extreme chilling effect on my work, studies and private life –- now I will have to go to untenable lengths to assure that my academic sources remain confidential and my personal dignity is maintained when I travel.”
Documents provided by the US government in response to an ACLU Freedom of Information Act (FOIA) request for records related to the DHS policy reveal that more than 3,000 American citizens were subjected to electronic device searches at US borders between 1 October 2008 and 2 June 2010. US border agents transferred data found on electronic devices to other federal agencies more than 280 times.
“These days, almost everybody carries a cell phone or laptop when traveling, and almost everyone stores information they wouldn’t want to share with government officials –- from financial records to love letters to family photos,” said Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project.
Crump tells David Kravets, writing for Ars Technica, that the Fourth Amendment’s “border exception” sometimes requires the lower standard of “reasonable suspicion” to search someone at the border. But when it comes to electronic devices, the government’s “policy allows a purely suspicionless search of laptops, cell phones and other electronic devices.”
The George W. Bush administration introduced the suspicionless search policy for electronic devices in 2008. Later that year the 9th US Circuit Court of Appeals in San Francisco upheld the searches (.pdf; 66KB). Last year Obama retained the rules.
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