ACLU mounts legal challenge to border searches of electronic devices

The American Civil Liberties Union (ACLU), joined by national associations representing defense lawyers and press photographers, filed a lawsuit in federal court this week challenging the U.S. Custom and Border Protection (CBP) policy on border searches of information in the possession of travelers, particularly including information stored on electronic devices such as laptop computers. The CBP policy, issued in July 2008, asserts the right of CBP personnel to examine computers, hard drives, and other electronic storage devices (as well as hard-copy material), without any need to show probable cause, suspicion, or justification of any kind. The policy also describes circumstances and operational guidelines under which CBP officers may take and hold information-containing devices in order to conduct thorough reviews of the information, potentially including using expert assistance to translate, interpret, or even break encryption if it has been used. Such detention is temporary (which legally apparently distinguishes it from seizure of the information), and the policy requires any copies of the information to be destroyed if, after review, no probable cause exists to seize it, but there are virtually no limitations on the type of information that may be reviewed.

The complaint filed by the ACLU challenges the CBP policy on Constitutional grounds, claiming causes of action under the Fourth Amendment because the border search policy and the searches performed under its authority allow warrantless, and in fact suspicionless, searches, copying, and detention of electronic devices and the data they contain, and under the First Amendment because the information reviewed by CBP includes expressive material protected by the free speech clause. The lead plaintiffs in the case include a doctoral student, a defense attorney, and a freelance photojournalist, all of whom have been detained on one or more occasions when traveling into the United States, and all of whom were subjected to searches of electronic devices in their possession when they passed through customs. The pending legal debate on this issue seems likely — as is often the case where homeland security is involved — to boil down to whether the government’s interest in ensuring compliance with and enforcing customs laws trumps reasonable expectations of privacy held by individuals traveling into or out of the United States.