ACLU Lawsuit Challenges Search of Electronic Devices at U.S. Border

It doesn’t happen all that often, but often enough to warrant caution among travelers to the United States: Homeland Security officials seizing laptops, smart phones, and other electronic devices at the border and searching their contents – documents, photos, call logs, and the like – without needing to suspect that the travelers carrying these devices have done anything wrong. (See New Lawsuit to Challenge Laptop Searches at U.S. Border, by Ellen Nakashima, Washington Post, 07.Sep.2010.)

According to the Washington Post, the Obama administration announced in August 2009 that it would continue the Department of Homeland Security’s policy of conducting “suspicionless searches at the border,” continuing the security measures established by the Bush administration in the wake of the September 11, 2001 terrorist attacks. As the Post observed, the government does not see any difference between searching an electronic device, and searching a traveler’s suitcase. The American Civil Liberties Union (ACLU), however, sees things differently, the Post reports, and “argues that laptops and smartphones, unlike a suitcase of clothes and toiletries, contain highly personal information, from financial records to family photos,” and calls for stricter standards to apply to these searches; in the ACLU’s view, government agents should not be allowed to search these devices at will, but should be required to have “reasonable suspicion” that a crime has been or is about to be committed.

According to the Post article, the plaintiffs include the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association, and a graduate student in Islamic Studies whose laptop was seized on a train trip between the U.S. and Canada, and returned 11 days later with evidence of having been examined in detail by immigration officials, including several personal documents and photos.

The likelihood of this happening to any particular traveler is relatively small. Citing ACLU statistics, the Washington Post reports that 6,671 travelers had their electronic devices searched at the border from October 2008 to June 2010. Nonetheless, the mere possibility of such a search can be anxiety-inducing for international travelers who depend on their laptops and smartphones, and cannot afford to be without them. Business travelers often carry sensitive data on their laptops – proprietary information on product designs, pricing, and marketing strategy, trade secrets or other confidential business information – not to mention private eMails, text messages, or other personal information they might prefer to shield from prying eyes. Perhaps the most frustrating is the sense that, at the border, you have no rights: if a government official decides s/he wants to search your electronic devices, there is nothing you can do to prevent it; a clean conscience, the best of intentions, and a spotless criminal record are not proof against it.

It is too early to tell what might happen in the ACLU’s lawsuit, but in the meantime, at least one thing is certain: people entering the United States, whether citizens or noncitizens, have no expectation of privacy with respect to their electronic devices, any more than to their person or their other belongings. Until this gets sorted out in court, perhaps most people will respond as did the young graduate student – a plaintiff in the ACLU suit – who, according to the Washington Post: now “travels with less information on his computer,” and “self-censors” the content he stores there.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.