It has been about a year since we first heralded the beginnings of laptop searches by Customs and Border Patrol (CBP) officers. The American Civil Liberties Union (ACLU) has just filed a Freedom of Information Act (FOIA) lawsuit to learn how the agency’s policy has impacted the civil liberties of travelers.
The ACLU made an initial FOIA request for the CBP’s records in June. Today’s lawsuit seeks to enforce that request. Among the documents being sought by the ACLU are records pertaining to the criteria used for selecting passengers for suspicionless searches, the number of people who have been subject to the searches, the number of devices and documents retained and the reasons for their retention.
The ACLU release on the lawsuit noted:
“Traveling with a laptop shouldn’t mean the government gets a free pass to rifle through your personal papers,” said Catherine Crump, staff attorney with the ACLU First Amendment Working Group. “This sort of broad and invasive search is exactly what the Fourth Amendment’s protections against unreasonable searches are designed to prevent.”
In its policy, CBP asserts it is free to read the information on travelers’ laptops “absent individualized suspicion.” CBP claims the right to search all files saved on laptops, including personal financial information, family photographs and lists of Web sites travelers have visited, without having reason to believe a traveler has broken the law. Additionally, CBP’s policy extends to suspicionless searches of “documents, books, pamphlets and other printed material, as well as computers, disks, hard drives and other electronic or digital storage devices.” The policy covers all persons, whether or not they are U.S. citizens, crossing the border.
Consumer Traveler has been at the forefront of efforts to publicize these extraordinary CBP powers. We have published articles regularly regarding the lack of constraints on the CBP when it comes to seizing and searching personal information.
We wrote about the upcoming Senate bill and its ramifications.
We have analyzed the Travelers’ Privacy Protection Act of 2008.
Here’s a warning of the coming laptop seizures.
Here the head of the Department of Homeland Security defends the practice.
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Charlie …This will be an interesting case to watch. Especially since CBP basically has the right to search anything crossing the border or deny entry.
Just because the CBP believe they have “the right” to sieze and search electronic devices from travelers coming into the country doesn’t make it legal. As a US citizen, entering the US should automatically protect me from unreasonable search and siezure as per the 4th amendment. Either they have a warrant or keep their rubber gloved hands off my notebook.
My father is a recently retired CBP officer working at a land border. I asked him about this.
He says that the law is clear: when you cross the border to enter the US, or land at an airport or seaport after an international plane or boat trip, you have not been admitted to the US yet. The Fourth Amendment does not apply completely, specifically the agent does not need a warrant or probable cause to search you or your belongings accompanying you (luggage, car, etc.). However, the search must be “reasonable”, and any search of your person (i.e. body search) must be based on “reasonable suspicion”. This is not mearly CPB policy or opinon, but in fact settled law based on U.S. Supreme Court rulings (this last part, I looked up myself).
Lyn Greenhill, you are correct that when you cross the border you are protected from “unreasonable” search and seizure, but the agents are simply not legally required to have a warrant. They must mearly conduct “reasonable” searches (if you’re saying that any such search is not reasonable without a warrant or probable cause, it suffices to say that the courts disagree).
Now, with respect to laptops, the legal question is whether searching electronic materials requires “reasonable suspicion” (as distinct from mearly a reasonably initiated and conducted search, which is always required), that is, should such searches be regarded as invasive enough to be treated as equivalent to a body search. That is, can CPB agents search your laptop without “reasonable suspicion” (i.e. without any suspicion needed for justification). From what I’ve learned, no serious legal argument is being made that would require a warrant or probable cause to search laptops at a border crossing (at least no serious legal argument that has not already been rejected by the courts), notwithstanding the ACLU press release.
That’s why when I travel with my laptop, I make sure that my PGP whole disk encryption is enabled and my drive is fully encrypted with triple DES encryption! Plus, I will email myself a randomly generated password so that I will not have it until I arrive at my destination! This way there is no way *ANYONE* can search my computer! (the random passkey is a minimum of 64 random characters…no possible way to memorize)
The computer will boot, but only to the point of asking for the passkey, which I can honestly say I do not have! And won’t until I get to my email!
Not that I’m paranoid or nothing, but it’s nobody’s business what is on my computer…
Ed