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.

The Plaintiffs, on the other hand, take the position that electronic devices are so ubiquitous nowadays. They contain people’s most personal thoughts, intimate and proprietary business communications, and confidential work or trade secrets to the extent that people have an expectation of privacy that surpasses any interests they would have as in the items in their suitcase, not to mention a First Amendment right to freedom of expression. In addition, the ACLU lawsuit challenges DHS’ practice of retaining the devices they confiscate long after the person has been admitted to the U.S. Current DHS policies provide no limits on how long devices can be held, the scope of investigation of the data, the criteria needed to search the data in the first place, or limits on copying the data.

Most of the reported litigated cases on this topic have been criminal cases involving motions to suppress evidence, usually involving pornography or drug smuggling or and other contraband – i.e., individuals traveling after a conviction, individuals already under investigation before travel, and individuals exhibiting signs of nervousness or other evasion or profile factors at the border. The Fourth Amendment to the U.S. Constitution prohibits government searches without probable cause and a warrant. There are exceptions, one of which is a border search, in which “routine” searches do not require suspicion of wrongdoing. Most people think that when asked to turn their device on and off, that should suffice as “routine.” However, just when more invasive searches become “non-routine” requiring a “reasonable suspicion” of wrongdoing is still unsettled, such as when being asked for a password, clicking on an icon, or opening a file or directory. The U.S. Supreme Court has not yet addressed the limits of routine and non-routine media searches, when they occur or where. For a good summary of cases, see the Congressional Research Service Report of November 2009 entitled “Border Searches of Laptop Computers and Other Electronic Storage Devices.” (No. RL 34404)

An interesting “extended border search” case is United States v. Hanson, No. CR 09-00946 JSW (June 2010), in which a U.S. District Court judge granted in part and denied in part a motion to suppress evidence of pornography obtained from Mr. Hanson’s laptop. In this unreported case, the border agent had confiscated the laptop upon Mr. Hanson’s arrival in the U.S. in January 2009 when a suspicious photo was found on his laptop. The laptop was sent for forensics in February, but it was not thoroughly searched until June 2009 when 1,000 illicit photos were found.

The judge held that in January the border officer found “one questionable image,” which was not enough along with the officer’s other observations to justify the initial seizure of the laptop, on the theory that there still was a reasonable expectation of privacy at that point. But, the judge held the evidence found in February was part of an “extended border search” based on a totality of the circumstances that amounted to a “reasonable suspicion” that a crime had been committed, though there was still not enough evidence to support probable cause for an arrest. The June search, however, was too attenuated in time and distance to be an extended border search. It was not a search incident to arrest; nor was a warrant obtained. Therefore, the evidence found in June was suppressed.

The government’s electronic search policies put travelers in a difficult position: provide the password when asked and get on with the search, or not provide the password and get detained with the possibility of litigation to challenge the personal and/or property detention, search or seizure. There is always the option of not travelling with gear in the first place. Or one can buy an extra set of everything and bring formatted, blank gadgets and spend time erasing devices between trips. Even using a Virtual Private Network (VPN) from abroad can have its pros and cons for border searches and work. Meanwhile, cloud computing presents the next frontier of privacy invasion.

The Canadian Bar Association has an excellent list of precautions to take when traveling with electronic gear. Two of the simplest ideas are 1) backup, backup, backup before you leave OR 2) don’t bring your laptop at all. For a more technical approach, see this C-NET article. For a good Q&A on border searches, see Book Brief from the American Bar Association