ACLU sues DHS over border laptop searches

Privacy advocates including the American Civil Liberties Union are mounting a legal challenge against the Department of Homeland Security's policy of searching travelers' laptops at the border without reasonable suspicion.

The ACLU announced Tuesday it has filed a lawsuit along with the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL) on behalf of the National Press Photographers Association (NPPA), alleging the policy violates Americans' First Amendment rights to privacy and free speech.

Privacy advocates have long argued the policy violates individuals' rights and may deter business travelers from visiting the U.S., lest they lose valuable corporate secrets. Sen. Russ Feingold (D-Wis.) has introduced a bill that would require a warrant before seizing a traveler's laptop.

“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's Speech, Privacy and Technology Project.

Customs and Border Protection began searching electronic devices at the border without reasonable suspicion under former President George W. Bush following the terrorist attacks of Sept. 11, 2001. The policy has survived two previous legal challenges, most notably a three-judge panel that upheld the practice in April 2008. Most challenges to the law have come from individuals accused of possessing child pornography on their hard drives.

“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,” Crump said.

The Obama administration disappointed privacy advocates last year by announcing it would continue the Bush policy of searching and sometimes seizing laptops without suspicion, even from U.S. citizens. The administration has argued that laptops and electronic devices entering the country exist in murky legal territory beyond the jurisdiction of the Fourth Amendment, which bars unlawful search and seizure.

The ACLU claims more than 6,600 travelers, almost half of which are American, had their devices searched between Oct. 1, 2008, and June 2 of this year. Members of the NPPA travel to cover news stories and claim the policy interferes with their ability to communicate confidentially with sources. Members of the NACDL argue the policy infringes on their clients' right to confidentiality.

Aside from the NPPA and NACDL, the other plaintiff in the case is Pascal Abidor, a 26-year-old French-American dual citizen who had his laptop confiscated at the border while traveling by train from Montreal to New York in May. Abidor, a graduate student in Islamic studies, was taken off the train, handcuffed, questioned and detained for several hours in a holding cell before being released without charge.

“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,” Abidor said.