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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

August 26, 2009 07:45 PM ET

Computerworld - 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.

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