On September 7, 2010, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association (NPPA), and Pascal Abidor, a dual French-American citizen, sued the U.S. Department of Homeland Security (DHS) challenging as unconstitutional DHS policy that allows border agents to search electronic media without suspicion or warrants. The case is Abidor, et al v. Napolitano, No. 1:2010cv0405, filed in the United States District Court for the Eastern District of New York. The Plaintiffs seek declaratory and injunctive relief.
Through the Freedom of Information Act (FOIA), the ACLU was able to obtain records from 2008 to 2010 showing over 6700 travelers had their electronic devices such as laptops, digital and video cameras, external drives, and PDAs searched by border officials. At least half were U.S. citizens. A summary of the disclosed DHS data can be found on the ACLU’s webpage. The majority of electronics searches conducted involved white U.S. Citizen males followed by Canadians, Mexicans, and the British. A substantial number of searches were not identified as to sex, race or nationality.
The ACLU’s complaint itself is an interesting read because it discusses the plight of two trade organizations and three individuals engaged in education/research, photojournalism, and international criminal defense work, and their need to preserve client and source confidences required by their professions. Access to laptops and other electronic gadgets is essential to their work, as it is in many professions. The complaint discusses the precautions they now have to take, which complicate their work and personal lives. The expectation and experience to date is that once in the government’s database system, they will continue to be harassed during future travel.
In the complaint, Mr. Abidor’s laptop and external drive were searched after he was taken off a train and handcuffed. He spent hours in a cell. Charges were never brought against him. He was never arrested. No warrant issued for his arrest or search of his electronic gear. He is an Islamic studies student in Canada who needed to travel internationally and frequently to work on his dissertation. His laptop and external gear were seized and not returned to him for weeks after he was admitted into the U.S. Mr. Abidor’s laptop and drive contained the only copies of his dissertation and supporting materials. Meanwhile, photojournalists have their gear frequently searched after covering wars, demonstrations, calamities, political interviews and events. Reporters and photojournalists are bound by their duty to protect the confidentiality of their sources. Likewise, criminal defense attorneys often travel abroad to interview witnesses, obtain evidence and participate in depositions or trials. Client confidentiality is essential, and there are penalties for certain types of international communications if made across the Internet. In addition, they need their gear all the time to do their work.
DHS takes the position that electronic devices are containers like suitcases at the border that can be searched without a warrant, with or without suspicion. They are like extensions of people. Current DHS policy and directives from August 2009 allow, among other things, for data searches away from the owner’s presence under the extended border exception to the warrant requirements under the Fourth Amendment to the Constitution. In addition, DHS policy allows for disclosure of this data to other government agencies. Earlier, Customs and Border Protection (CBP), a division of DHS, issued a press release about how rare laptop searches are. Specific forms to complete and CBP advisories are part of the ACLU’s FOIA response.