Decision Dismisses ACLU Lawsuit Challenging DHS Search Policy as Unconstitutional

December 31, 2013

FOR IMMEDIATE RELEASE

CONTACT: 212-549-2666, media@aclu.org

BROOKLYN – A federal court today dismissed a lawsuit arguing that the government should not be able to search and copy people’s laptops, cell phones, and other devices at border checkpoints without reasonable suspicion. An appeal is being considered. Government documents show that thousands of innocent American citizens are searched when they return from trips abroad.

"We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing," said Catherine Crump, the American Civil Liberties Union attorney who argued the case in July 2011. "Suspicionless searches of devices containing vast amounts of personal information cannot meet the standard set by the Fourth Amendment, which prohibits unreasonable searches and seizures. Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight."

The ACLU, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers filed the lawsuit in September 2010 against the Department of Homeland Security. DHS asserts the right to look though the contents of a traveler's electronic devices, and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.

The lawsuit was filed on behalf of Pascal Abidor, a dual French-American citizen who had his laptop searched and confiscated at the Canadian border; the National Press Photographers Association, whose members include television and still photographers, editors, students and representatives of the photojournalism industry; and the NACDL, which has attorney members in 25 countries.

Abidor was travelling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by customs officers. Abidor, an Islamic Studies Ph.D. student at McGill University, was questioned, taken off the train in handcuffs, and held in a cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files had been searched, including photos and chats with his girlfriend.

In June, in response to an ACLU Freedom of Information Act request, DHS released its December 2011 Civil Rights/Civil Liberties Impact Assessment of its electronics search policy, concluding that suspicionless searches do not violate the First or Fourth Amendments. The report said that a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate "hunches," a method that it says has sometimes proved fruitful.