Pushing Back on Border Searches ; Lawsuits Seek to Limit Power of U.S. Authorities to See Content on Devices

Article excerpt

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers' laptops, cameras and phones without suspicion of illegal activity.

The U.S. government historically has had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers' laptops, cameras and phones without suspicion of illegal activity.

"What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices," said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for a U.S. District Court in New York.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after being handcuffed and detained at the border during a train trip on Amtrak from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

According to government data, such searches are relatively rare. About 36,000 people are referred to secondary screening by the U.S. Customs and Border Protection agency daily, and about a dozen of those travelers are subject to a search of their electronic devices.

Courts have long held that protections against unreasonable searches and seizures -- specified in the Fourth Amendment to the U.S. Constitution -- do not apply at the border, based on the government's interest in fighting crime and terrorism. But Mr. Pascal's lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond typical border searches. They also depart from the justification -- possession of child pornography -- cited in other digital searches.

"We're getting more into whether this is targeting political speech," Ms. Crump said.

In another case the A.C.L.U. is arguing, House v. Napolitano, border officials at Chicago O'Hare International Airport confiscated a laptop, a camera and a USB drive belonging to David House, a computer programmer, and kept his devices for seven weeks.

The lawsuit charges that Mr. House was singled out because of his association with the Bradley Manning Support Network. Pfc. Bradley Manning is a former military intelligence analyst accused of leaking thousands of military and diplomatic documents to the anti-secrecy group WikiLeaks.

In March, Judge Denise J. Casper of U.S. District Court in Massachusetts denied the government's motion to dismiss the suit, saying that although the government did not need reasonable suspicion to search someone's laptop at the border, that power did not strip Mr. House of his rights under the First Amendment to the Constitution, which protects freedom of speech. Legal scholars say this ruling could set the stage for the courts to place some limits on how the government conducts digital searches.

"The District Court basically said you don't need individualized suspicion to search an electronic device at the border," said Patrick E. Corbett, a professor of criminal law and procedure at Thomas M. Cooley Law School in Lansing, Michigan. "What they were troubled with was the fact that the government held these devices for 49 days."

Customs and Border Protection, part of the Department of Homeland Security, declined to discuss the policy in an interview, but a spokeswoman for the agency said in an e-mail: "Keeping Americans safe and enforcing our nation's laws in an increasingly digital world depends on our ability to lawfully screen all materials -- electronic or otherwise -- entering the United States. …