The ACLU has decided to attack an area of eroding civil rights: the laptop search at borders. On September 7th, the ACLU and NACDL filed a lawsuit challenging the Department of Homeland Security's policy that permits Border Agents to search laptop computers whether or not there has been any arrest or even probable cause. The ACLU has published materials on their website including the results of a FOIA request on how electronic media searches were conducted on travelers' computers, phones, and other electronic devices as well as the results of those searches.
Case law thus far has supported the warrantless seizure and search of laptop computers at borders. In one case from the Ninth Circuit, United States v. Arnold, the Court held that at international airports border search of a computer can take place without even reasonable suspicion of the traveler. In Arnold, Mr. Arnold was returning to LAX from the Philippines and was ordered to start up his laptop. Border agents found two pictures of nude women which led to a more extensive search of the laptop, ultimately producing child porn. The District Court suppressed the evidence obtained on the laptop, however, the Ninth Circuit overturned the decision and found the search was permissible due to being at the border.
Searches like the one in this case impact both the Fourth Amendment and the First Amendment. People's entire lives are kept on their computers. The issue is far from over with this new challenge by the ACLU and NACDL. Interestingly, a United States District Judge for the Northern District of California rejected the Government's argument that no warrant was necessary to look through the electronic files of an American citizen who was returning home from a trip to South Korea in United States v. Hanson. The facts of this case also turned on the delay: the Government argued that a six month delay in searching the computer was permitted because the property had not yet cleared customs into the United States.
For more on the ACLU and NACDL's lawsuit, clickhere.
NEW YORK – The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL) today filed a lawsuit challenging the Department of Homeland Security's (DHS) policy permitting border agents to search, copy and detain travelers' electronic devices at the border without reasonable suspicion. DHS asserts the right to look though the contents of a traveler's electronic devices – including laptops, cameras and cell phones – and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.
"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. "Innocent Americans should not be made to feel like the personal information they store on their laptops and cell phones is vulnerable to searches by government officials any time they travel out of the country."
Today's lawsuit was filed on behalf of the National Press Photographers Association (NPPA), whose members include television and still photographers, editors, students and representatives of the photojournalism industry; NACDL, which is a plaintiff as well as counsel on the case; and Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border.
Abidor was travelling from Montreal to New York on an Amtrak train in May when he had his laptop searched and confiscated by Custom and Border Patrol officers. Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched.
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