For the last two years, the US Department of Homeland Security has claimed the right to seize and search your laptop on nothing more than a whim. Today, the American Civil Liberties Union and others have brought a lawsuit fixing to change that.
There's been some progress since the policy was put in place in August 2008. DHS volunteered to return laptops in a more timely fashion, and a judge decreed that they at least need a warrant if they're going to hold your property indefinitely.
But neither of those events attack the heart of the matter: the government can take your stuff for absolutely no reason. That's what the lawsuit - brought on behalf of the National Press Photographers Association - hopes to remedy. Already, the ACLU notes, more than 6600 travellers have been subject to electronic device searches between October 1, 2008, and June 2, 2010, nearly half of them American citizens.
These types of cases take an extremely long time to play out; just look at how long it took to bring forward. But in the best case, in due time, we'll get some much-needed sanity back to search and seizure procedures. And in the worst case, at least there will be more awareness that something's rotten at the border.
NEW YORK – The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal defence Layers (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 travelling, 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.
"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. "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."
Members of both NACDL and NPPA have also been subjected to the DHS search policy, which interferes with their ability to do their work. NPPA members regularly travel abroad with cameras, laptops and media storage devices to cover global news stories, including wars, protests and foreign elections, and rely on the ability to communicate confidentially with sources. Many NACDL members travel abroad with laptops, blackberries and cell phones as part of their vigorous representation of their clients, and have an ethical duty to safeguard the confidentiality of their clients' information.
"Unchecked government fishing expeditions into the constitutionally protected materials on an innocent traveler's laptop or cell phone interfere with the ability of many Americans to do their jobs and do nothing to make us safer," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Americans do not surrender their privacy and free speech rights when they travel abroad."
Documents obtained by the ACLU in response to a separate Freedom of Information Act (FOIA) lawsuit for records related to the DHS policy reveal that more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches at the border between October 1, 2008 and June 2, 2010.
The ACLU, NYCLU and NACDL filed today's complaint against Secretary of Homeland Security Janet Napolitano, U.S. Customs and Border Protection Commissioner Alan Bersin and Assistant Secretary of Homeland Security for Immigration and Customs Enforcement John T. Morton in the U.S. District Court for the Eastern District of New York.
Attorneys on the case are Crump and Goodman of the ACLU, Christopher Dunn and Arthur Eisenberg of the NYCLU and Michael Price of NACDL.
Materials related to the lawsuit, including the complaint and a video featuring ACLU lawyer Catherine Crump and client Pascal Abidor talking about the case, is online at: www.aclu.org/bordersearches
The documents released in the ACLU's FOIA lawsuit are available online at: www.aclu.org/free-speech/aclu-v-dhs