ACLU files suit against suspicionless laptop searches at U.S. borders

The constitutionality of suspicionless searches of electronic devices at border crossings came under fire Sept. 7 with a lawsuit seeking their enjoinment filed by the American Civil Liberties Union.

The ACLU filed suit in the federal eastern district of New York, contending that the searches violate the First and Fourth amendments.  

The Homeland Security Department has claimed the authority to search electronic devices carried in and out of the country since the Bush administration. In August 2009, DHS issued revised directives on the search power of Customs and Border Protection and Immigration and Customs Enforcement agents. Both CBP and ICE retain the ability to search electronic devices "with or without individualized suspicion" and to copy the data that resides on them.

The revised directives "contain no meaningful limits on what information gleaned from a search can be retained and with whom that information can be shared," the lawsuit contends.

Sharing in the lawsuit's plaintiff duties is Pascal Abidor, a 26-year old U.S. and French dual citizen and doctoral student whose laptop and external hard drive were searched last May after Abidor crossed back into the United States on a train from Canada.

A CBP official named "Officer Tulip" had her interest piqued in Abidor when he told the agent that he is a student of Islamic studies at McGill University in Montreal, and that he had traveled to Jordan and Lebanon on his French passport, the lawsuit states. Tulip became more suspicious when Abidor voluntarily turned on his laptop to reveal stored images that included pictures of Hamas and Hezbollah rallies.

Abidor was ordered off the train and kept in detention for three hours, but his laptop and external hard drive were denied to him for 11 days and came back showing obvious signs of searching.

Between October 1, 2008 and June 2, 2010, more than 6,500 people--nearly 3,000 of them U.S. citizens--were subjected to a search of their electronic devices as they crossed U.S. borders, the lawsuit contends.

Other plaintiffs include the National Association of Criminal Defense Lawyers and the National Press photographers Association, whose members have also had their laptops searched while crossing the U.S. border.  

In a blog post, the ACLU says it doesn't seek to halt all electronic device searches at border crossings, "but only that border agents should have some suspicion that the search will turn up evidence of wrongdoing."

Previous challenges to the laptop search policy have failed, however. In 2008, the Ninth Circuit Court of Appeals upheld the right of officials to search the laptops of travelers after such a search uncovered child pornography on the laptop of a man returning from the Philippines.

For more:
- download the ACLU complaint, read their blog, watch an ACLU video featuring Pascal Abidor
- download the Ninth Circuit Court of Appeals 2008 decision upholding border crossing electronic device searches (.pdf)

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