Groups Sue Over Suspicionless Laptop Search Policy At The Border
ACLU Says Government Must Have Reasonable Suspicion Before Looking Through Contents Of Travelers’ Electronic Devices
NEW YORK - The
American Civil Liberties Union, the New York Civil Liberties Union and
the National Association of Criminal Defense 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
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
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
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
"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-
The American Civil Liberties Union (ACLU) conserves America's original civic values working in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in the United States by the Constitution and the Bill of Rights.