Lawsuit Seeks to End Border Searches of Electronic Devices

When the President of the National Association of Criminal Defense Lawyers (NACDL) is forced to log in to her laptop at an airport and a customs official disappears for 30 minutes with the computer, it’s probably a safe bet that some form of litigation will emerge from the encounter.

This is exactly what happened to Lisa Wayne as she was traveling home from Mexico in August of 2008. The incident, according to the National Law Journal, took place at the Houston, Texas airport and eventually resulted in her organization joining a lawsuit against the U.S. Department of Homeland Security, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement officials.

The NACDL, the National Press Photographers Association (NPPA) and Pascal Abidor, a student, and NPAA member whose laptop was seized and searched during a May U.S. and Canadian border stop, are the lawsuit’s plaintiffs. Abidor was jailed briefly and his laptop was returned to him eleven days later. His email and research were among the items accessed on his hard drive by authorities.

The American Civil Liberties Union is representing the plaintiffs in the suit, which seeks to constitutionally challenge (leveraging the Fourth Amendment) the “suspicionless search of the contents of Americans’ laptops, cell phones, cameras and other electronic devices at the international border.”

DHX spokesman Matthew Chandler called the searches a “targeted tool” for customs officials.

In the complaint it’s alleged that Customs officials can undertake a search “with or without individualized suspicion," and that over 6,500 people were subjected to such searches of their electronic devices from October, 2008 through June of this year. Of the 6,500, nearly 3,000 were U.S. citizens.

For her part, Wayne plans to claim attorney/client privilege and refuse to log in to her laptop if asked to do so in the future. She still worries that custom officials will seize her computer and ultimately gain access though.

The full complaint can be accessed on the ACLU website here (in PDF form).

Earlier this year, the ACLU claimed that customs officials were making copies and backups of information seized off the electronic devices of travelers.