Lawyers from the American Civil Liberties Union and its co-counsels, the National Press Photographer's Association and the National Association of Criminal Defense Lawyers filed a legal challenge Tuesday to a U.S. Department of Homeland Security policy allowing any search and seizure of laptops, mobile devices and other electronics at U.S. borders.
In a complaint filed in a U.S. District Court in Brooklyn, N.Y., the plaintiffs argued that digital devices contain increasingly personal information, making the current policy a violation of the Fourth Amendment guarantee against unreasonable search and seizure.
They also argued that data contained in electronic and computing devices should be considered as speech protected under the First Amendment, especially as knowledge of the border policy would oblige photographers and researchers to warn their sources of possible seizure, making it harder to obtain information, the plaintiffs said.
In the last two years, some 6,500 individuals have had their devices searched under this policy, the ACLU said in a statement. The lawsuit does not involve monetary damages. Instead, plaintiffs are requesting a court order putting an immediate end to arbitrary border searches of personal devices.
The ACLU claims the policies place no restrictions on either the duration or the extent of information which can legally be searched, copied or kept.
The plaintiffs argue that laptops and smartphones contain highly personal information, and the government should at least have some "reasonable suspicion” before searching and seizing personal material. The ACLU is also challenging the right of agencies to share travelers' data under certain circumstances, citing hundreds of cases over a one-year period.
Searches of computers and other devices were authorized without need for suspicion under the Bush Administration in 2008. The Obama administration has maintained the same stance, the plaintiffs said, under DHS policies issued by U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement in August 2009.
Two federal appeals courts have already ruled in favor of the government, which contends that its unlimited authority to protect the border is necessary for national security, even in cases that do not necessarily fall under "reasonable suspicion."
The San Francisco-based 9th U.S. Circuit Court of Appeals originally approved the Bush policy in 2008. The most recent lawsuit, however, is under the separate jurisdiction of the New York-based 2nd U.S. Circuit Court of Appeals, and may therefore result in an entirely different ruling from its precedent.
The case was brought on behalf of 26-year-old Brooklyn resident Pascal Abidor, whose laptop and external hard-drive were seized as he was traveling from Montreal to New York by train last May.
Despite holding a U.S. passport, Abidor was ordered to move to another car, open his laptop and enter the password, according to the lawsuit. Briefly handcuffed, jailed and interrogated before his release, it took eleven days, and a complaint from Abidor's lawyer, to recover the hardware, the plaintiffs said.
A doctoral student in Islamic Studies at McGill University in Montreal, Abidor travels frequently to the Middle East.
When agents asked him about pictures they found on his laptop, including images from Hamas and Hezbollah rallies, he explained that he was studying the modern history of Shiites in Lebanon for his degree.
Abidor was later able to determine from checking his most recently opened documents that officers had examined folders on his laptop as well as backup documents on his hard drive. With the current policies in place, personal security and fear of authoritative seizure, could provide yet another incentive for individuals and companies looking to move their applications to the cloud.