Lawsuit Challenges DHS Laptop Search Policy

The American Civil Liberties Union, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers on Tuesday filed a lawsuit against the Department of Homeland Security seeking a change in the DHS policy governing searches of laptops and other electronic devices at U.S. border crossings.

The organizations charge that the DHS policy permitting "suspicionless" searches of laptops and other electronic devices at border checkpoints violates Fourth Amendment protections against unreasonable searches and First Amendment speech guarantees.

Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project, said in a statement that almost everyone these days carries a laptop or cell phone when traveling and that innocent Americans shouldn't feel that their personal information may be copied by the government as a consequence of traveling aboard.

The lawsuit was filed on behalf of National Press Photographers Association, whose member photographers and journalists are obliged to turn over sensitive confidential material to the DHS on demand, and Pascal Abidor, a 26-year-old dual U.S.-French citizen whose laptop was searched and confiscated at the Canadian border when traveling back to his home in New York on an Amtrak train in May.

Last year, the Department of Homeland Security issued new rules pertaining to searches of laptops and other electronic devices at airports and other border crossings. Regarded as clearer than Bush administration policies, the rules nonetheless give government agents the right to search electronic devices as if they were suitcases or backpacks, without cause, in keeping with a February 2009 Supreme Court ruling.

According to DHS documents obtained through an ACLU Freedom of Information Act lawsuit, over 6,600 travelers, about half of whom hold American citizenship, had their electronic devices searched at border checkpoints between October 1, 2008 and June 2, 2010.

A DHS document titled "Foreign Travel Threat Assessment: Electronic Communications Vulnerabilities," published in June, 2008, recognizes that when other governments copy data from travelers, it's a threat to U.S. business leaders and officials.

"Foreign governments routinely target the computers and other electronic devices and media carried by U.S. corporate and government personnel traveling abroad to gather economic, military, and political information," the document warns. "Theft of sensitive information can occur in a foreign country at any point between a traveler's arrival and departure and can continue after returning home without the victim being aware."