Baseless Searches of Laptops and Cell Phones Pose Privacy Threats to Travelers

Documents
obtained by the American Civil Liberties Union as part of a Freedom of
Information Act (FOIA) lawsuit show that Customs and Border Protection
(CBP) agents searched over 1,500 electronic devices belonging to
international travelers in airports and at the U.S. border over a
period of nine months. Under the current policy, agents were not
required to justify these searches. The documents include complaints by
travelers that CBP agents embarrassed and inconvenienced them by
baselessly accusing them of wrongdoing and intrusively reviewing their
personal files.

"These documents show that the
constitutional rights of thousands of travelers were put at risk and
violated by the CBP's policy," said Catherine Crump, staff attorney
with the ACLU First Amendment Working Group. "The CBP's ability to take
and view the personal files of anyone passing through U.S. borders
without any suspicion not only presents an inconvenience to travelers,
but also fails to protect sensitive personal information that is
commonly stored in laptops and cell phones. Fundamental constitutional
problems with this policy exist, and must be addressed."

In July 2008, the CBP published a
policy that allows agents to subject travelers to suspicionless
searches of information contained in documents and electronic devices -
including laptops and cell phones. The policy applies to all travelers,
including U.S. citizens as well as travelers from other countries, who
pass through U.S. borders or who go through international customs at
airports. Last June, the ACLU filed a FOIA request for records showing
how the policy has impacted travelers. In August, after not receiving
the requested information, the ACLU filed a lawsuit to enforce the
request. The documents include CBP records of devices searched between
October 2008 and June 2009, letters written by travelers to the CBP
complaining of mistreatment by border agents and letters from members
of Congress to the CBP expressing the concerns of their constituents.

Some of the letters from individuals
describe instances in which travelers were humiliated by agents who
searched through their personal computer files and digital photos
before letting them go. The documents also show that CBP agents
transferred electronic files found on travelers' devices to third-party
agencies almost 300 times.

"The government has a legitimate
interest in searching electronic devices where there is individualized
suspicion of wrongdoing, but CBP's policy allows officials to exercise
their power arbitrarily," said Crump. "People should be able to travel
without having to choose between the inconvenience of leaving their
cell phones and laptops at home and having to open up their medical
records, financial information and photographs for government
inspection."

Last August, the Obama
administration announced it would continue the Bush administration's
policy of allowing agents to search devices absent individualized
suspicion. CBP promised to issue a civil liberties assessment of the
policy within 120 days, but it missed that deadline and has yet to
issue a report.

"Because the CBP's policy increases
the possibility of individuals being selected for scrutiny on the basis
of their race or ethnicity rather than any legitimate criteria, it is
important that the government provide a civil liberties assessment
including data on the racial and ethnic breakdown of those subjected to
suspicionless searches, as well as data on the results of these
searches," said Crump. "To date, none of the documents we've received
address the effectiveness of these intrusive searches or the potential
for racial profiling."

The documents obtained from the FOIA can be found here: www.aclu.org/national-security/customs-and-border-protection-cbp-first-production-documents