ACLU sues for information on laptop searches at U.S. borders

Data needed to determine how officials are implementing policies regarding such searches, ACLU lawyer says

The American Civil Liberties Union is suing the U.S. Department of Homeland Security (DHS)'s Customs and Border Protection (CBP) unit for information on its policies related to searches of laptops and other electronic devices at U.S. borders.

The lawsuit was filed today under the Freedom of Information Act (FOIA) in U.S. District Court for the Southern District of New York. In it, the ACLU asks the court to direct CBP to disclose records relating to the criteria it uses for selecting passengers for such searches, and the number of such searches it has carried out so far.

The lawsuit also seeks information on the number of devices and documents that have been retained by the DHS unit following such searches and the reasons for their retention.

The lawsuit stems from the Customs and Border Patrol's failure to respond to a FOIA request in which the ACLU had sought the same information in June, said Larry Schwartztol, an attorney for the civil rights group. The information is needed to understand how the agency has been implementing the policies it made public in July 2008 regarding searches of laptops, PDAs and other devices at U.S. borders, he said.

"We have serious concerns about the border searches as stated [by customs]," Schwartztol said. "We think the privacy impacts of searching a laptop without any suspicion are very serious."

The issue of laptop searches at U.S. borders has been a contentious one for some time now. The government has argued that customs agents at U.S. borders have the right to search through the contents of laptops, PDAs, digital cameras and other electronic devices belonging to passengers arriving at U.S borders. The agency has asserted its right to conduct such searches and even download or copy the contents on such devices, even in the absence of any reasonable cause or suspicion.

Civil liberties groups, privacy advocates and others have called such searches an egregious violation of privacy and constitutional rights. Groups such as the Association of Corporate Travel Executives, and others, have warned of potential security breaches when corporate data contained in a laptop or PDA is downloaded by a customs agent as part of a border search. Similar concerns have been raised about data involving client and lawyer privileges, intellectual property and other sensitive information.

The courts have appeared somewhat conflicted on the issue. In one instance, the U.S. Court of Appeals for the Ninth Circuit upheld the right of customs officials to conduct suspicion-less searches at U.S. borders. The case involved a man charged with transporting images of child pornography after such a border search.

The April 2008 ruling by the appellate court reversed an decision by the U.S. District Court for the Central District of California, which had held that border agents needed at least some reasonable suspicion before conducting such searches.

Today's lawsuit is not the first time the DHS has been pressed for more information on its policies relating to border laptop searches. The Electronic Frontier Foundation (EFF) and the Asian Law Caucus had filed a similar FOIA lawsuit in February 2008, in which they had sought similar data from the CBP.

In response to that lawsuit, the CBP released about 600 pages worth of information on its policies relating to border laptop searches, said Marcia Hoffman, an attorney for EFF. (The documents are available on EFF's site.)

"It gave us some insight into their policies and procedures around border searches," Hoffman said. What the documents showed was that until fairly recently DHS had not thought about how policies covering other forms of searches applied to digital information, she said. Following the EFF and Asian Law Caucus lawsuit, the CBP also published a formal note describing its policy regarding border searches.

The ACLU lawsuit seeks to gather information on the implementation of that policy, Schwartztol said. "We are particularly interested in seeing how CBP agents are deciding which travelers to subject to such suspicion-less searches," he said. "We want to see what happens when they encounter sensitive material, or material that would be subject to lawyer client privileges."

He said that the ACLU has heard anecdotal reports from several passengers who had been subject to such searches. Some had data copied from their devices while others had reported their devices being taken away without explanation sometimes for months, Schwarztol said.

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