The government has historically 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 Korman, who is writing the opinion for the U.S. District Court for the Eastern District of New York.
In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip 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, these types of searches are rare: About 36,000 people are referred to secondary screening by United States Customs and Border Protection daily, and roughly a dozen of those travelers are subject to a search of their electronic devices.
Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.
“We’re getting more into whether this is targeting political speech," Crump said.
In another case the ACLU is arguing, House v. Napolitano, border officials at Chicago O’Hare Airport confiscated a laptop, camera and USB drive belonging to David House, a computer programmer, and kept his devices for seven weeks.
The lawsuit charges that 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 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 House of his First Amendment rights. 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 Corbett, a professor of criminal law and procedure at Thomas M. Cooley Law School in Lansing, Mich. “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 email: “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. We are committed to ensuring the rights and privacies of all people while making certain that DHS can take the lawful actions necessary to secure our borders."
The statement also referred to the agency’s policy on border searches of electronic devices, which says that officers can keep these devices for a “reasonable period of time," including at an off-site location, and seek help from other government agencies to decrypt, translate or interpret the information they contain. If travelers choose not to share a password for a device, the government may hold it in order to find a way to gain access to the data.
The agency did provide recent statistics on how many travelers this policy affects. From Oct. 1, 2011, through Aug. 31, 2012, 11.9 million travelers were referred to secondary screening after entering the United States. Of those searches, 4,898 included an electronic device. In the prior year, 12.1 million people underwent additional screening, with 4,782 searches of electronic devices.
While there is little public information about who is pulled aside for extra scrutiny, some people who have had their laptops searched say they feel they were selected based on their academic, journalistic or political pursuits.
Laura Poitras, a documentary filmmaker and the recipient of a 2012 MacArthur Fellowship, estimates that she has been detained more than 40 times upon returning to the United States. She has been questioned for hours about her meetings abroad, her credit cards and notes have been copied, and after one trip her laptop, camera and cellphone were seized for 41 days.
Poitras said these interrogations largely subsided after a Salon article describing her experiences was published in April, but she is editing her latest film in Europe to avoid crossing the border with her research and interviews. (The film, the third in a series about the war on terror, focuses on domestic surveillance.)
“I’m taking more and more extreme measures, to the point where I’m actually editing outside the country," she said. “They use the border as a way to get around the law."
In other cases, travelers say they have no idea why they were singled out. Lisa Wayne, a criminal defense lawyer, had her laptop searched after returning from a trip to Mexico.
Wayne said her main concern was the information about clients’ cases stored on her laptop: She is a past president of the National Association of Criminal Defense Lawyers, which is a co-plaintiff in the Abidor suit, along with the National Press Photographers Association. But at the time of the search, she was unaware of her rights and felt pressured to hand over her computer.
“It was very clear to me that the longer I objected or interrogated them, the longer I was going to be detained, and I had a connecting flight," she said. “It’s an intimidating experience. It was not consensual other than, you comply with the rules."