BOB GARFIELD: On Tuesday, the American Civil Liberties Union filed suit against the Department of Homeland Security, charging that the detention and search of laptops, cell phones and other electronic devices at the border, without reasonable suspicion, violates Constitutional rights to privacy and free speech, in addition to protection from unlawful search and seizure. It’s the latest attempt to challenge the government’s assertion that a laptop is no different than a suitcase, at least at the border. DHS Secretary Janet Napolitano backs this controversial Bush-era practice, saying that it is, quote, “consistent with the department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks at U.S. borders.” One of the three plaintiffs in this case is Pascal Abidor, a graduate student in Islamic studies at McGill University in Montreal. According to Catherine Crump of the ACLU, Abidor was searched on his way home to Brooklyn to visit his mom on Mother’s Day.
CATHERINE CRUMP: The agent asked him what he studied and where he had been in the last couple of years, and he had been to the Middle East. And on the basis of that information, the border agent required him to gather up his things, took him to the café car of the train, noticed he had a laptop, required him to enter his password into the laptop and then proceeded to start looking through his personal files. She noticed that he had pictures of Hamas rallies and other things in the Middle East and asked him about it, Pascal explained that he studied Shi'ite movements in modern Lebanon. And he ended up getting handcuffed, frisked, hauled off the train and held for three hours and questioned. He was ultimately allowed to leave the border, but the border agents kept his laptop and proceeded to search through it for another 11 days. And when he looked to see what the border agents had gone through, he was able to tell that they'd accessed things such as records of Internet conversations he'd had with his girlfriend.
BOB GARFIELD: It seems most likely that the suspicion was raised because of the nature of the photographs that Abidor had in his laptop. Suddenly this border agent was on, you know, a higher alert, and I guess his answers didn't satisfy her, which may or may not be disgraceful but certainly is understandable. Is your concern how much deeper they dug once they got the laptop in their hands?
CATHERINE CRUMP: We have a number of concerns. First of all, the mere fact that Mr. Abidor was studying Islamic studies and had traveled to the Middle East isn't reasonable suspicion that he was engaged in wrongdoing. And so the initial search of his laptop shouldn't have happened. What’s on your laptop is a great deal of sensitive information that’s generally protected by the First Amendment. In ordinary life, if the government wants to get access to your personal correspondence or your home office, they have to get a warrant based on probable cause because the information is so sensitive. And even at the border, we think, because of the sensitive nature of that information, the government needs to have at least reasonable suspicion before it can start reading through all of your personal papers.
BOB GARFIELD: The threshold for intrusion by federal agents at the border is much lower than it is within the country itself. How much lower is that?
CATHERINE CRUMP: The standards are lower at the border, but it’s not a Constitution-free zone. The court has held previously that where a search is particularly intrusive the government has to show reasonable suspicion. So our argument in this case is that because of the expressive nature of materials on laptops and cell phones, those searches are particularly intrusive and trigger the reasonable suspicion requirements. In addition, the government now asserts that the border extends 100 miles into the country and that it is free to conduct border searches in that area. Criminal defense lawyers cross the border all the time with sensitive attorney-client privileged information, and it really impedes their ability to do their job if they have to struggle between going overseas to gather facts that they need to conduct investigations on the one hand and maintaining attorney-client privilege on the other.
BOB GARFIELD: Matthew Chandler, the Deputy Press Secretary of the Department of Homeland Security, gave us a statement that read, in part, quote: “Searches of laptops and other electronic media during secondary inspection are a targeted tool that Customs and Border Protection uses in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country.”
CATHERINE CRUMP: No one is disputing that the government has the right to engage in border searches. The question here is whether they have the right to do so whenever they want, for any reason.
BOB GARFIELD: Now, the DHS spokesman, immediately after declining to discuss pending litigation, offered legal precedents [LAUGHING] for this litigation, ones that did uphold the government’s right to treat hard drive contents as if they were paper documents.
CATHERINE CRUMP: Those cases were litigated where criminal defendants were trying to suppress evidence that they possessed child pornography. And we're optimistic that in our case, where we represent journalists and criminal defense attorneys and other people who are very sympathetic and who have been really harmed by these searches, that courts will see things differently and recognize that searching through the contents of someone’s paper is fundamentally different than searching through someone’s shoes and their luggage.
BOB GARFIELD: Well, Catherine, thank you very much.
CATHERINE CRUMP: Well, thank you.
BOB GARFIELD: Catherine Crump is an attorney for the American Civil Liberties Union.