ACLU sues over warrantless border laptop searches

An Obama administration policy allowing US border officials to seize and search laptops, smart phones and other electronic devices for any reason was challenged as unconstitutional in federal court Tuesday.

Citing the government’s own figures, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers claim about 6,500 persons had their electronic devices searched along the U.S. border since October 2008. In one instance, according to the lawsuit filed in New York, a computer laptop was seized from a New York man at the Canadian border and not returned for 11 days. The lawsuit seeks no monetary damages, but asks the court to order an end to the searches.

“All we want is that the government has to have some shred of evidence they can point to that may turn up some evidence of wrongdoing,” says ACLU attorney Catherine Crump.

The so-called “border exception” to the Fourth Amendment’s probable-cause standard sometimes requires the lower standard of “reasonable suspicion” to search a traveler’s person or physical property, says Crump. But when it comes to electronic devices, the government’s “policy allows a purely suspicionless search of laptops, cell phones and other electronic devices,” she says.

The lawsuit comes as laptops, and now smart phones, (.pdf) have become virtual extensions of ourselves, housing everything from e-mail to instant-message chats to our papers and effects.

The government maintains it needs the carte blanche authority to search electronics at the border to keep the United States safe. That’s what it told the San Francisco-based 9th US Circuit Court of Appeals, which approved the searches in 2008. Tuesday’s lawsuit is in the jurisdiction of the New York-based 2nd US Circuit Court of Appeals, which is not obliged to follow precedent in other circuits.

The Bush administration first announced the suspicionless laptop search rules in 2008. The Obama administration followed up with virtually the same rules last year.

The government, Crump said, “should at least have some reasonable suspicion” when it comes to searches and seizures of electronic devices at the border.

The case was brought on behalf of 26-year-old Pascal Abidor, whose laptop was seized for 11 days in May as he was traveling by rail from Canada to his parents’ New York residence. He is an Islamic studies graduate student in Canada.

At an Amtrak inspection point, he showed his US passport to an agent. He was ordered to move to the café car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.

Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained to the agent that he was earning a doctoral degree in the modern history of Shiites in Lebanon. He was handcuffed and then jailed for three hours while the authorities looked through his computer, according to the suit. Numerous agents questioned him, the suit said.

They released him and kept his laptop for 11 days, before his lawyer complained.

Plaintiffs in the suit also include the National Association of Criminal Defense Lawyers and the National Press Photographer’s Association. The lawyers group maintains search policy exposes privileged communications. The photographer’s association said the policy interferes “with their ability to do their work.”