The American Civil Liberties Union said Wednesday that it had filed a lawsuit under the Freedom of Information Act (FOIA), demanding records from the U.S. Customs and Border Protection’s (CBP) policy of searching laptops at border crossings without any suspicion of wrongdoing.
CBP instituted the policy last year, saying it had the right to look at the contents of traveler’s laptops without any need for a warrant. Obviously, the agency is framing this as an anti-terrorism measure, hoping to prevent terrorists and other criminals from entering the country.
However, the scope of what they can search is quite expansive. According to the ACLU, personal financial information, web site histories, and photgraphs are fair game, as well as “documents, books, pamphlets and other printed material, as well as computers, disks, hard drives and other electronic or digital storage devices.”
It is irrelevant whether or not the traveler is a US citizen or not: everyone is subject to search at the CBP’s discretion. The ACLU argues that this is a violation of the Fourth Amendment, which reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“Under CBP’s policy, innumerable international travelers have had their most personal information searched by government officials and retained by the government indefinitely,” ACLU attorney Larry Schwartztol said. He said the group was using the lawsuit to see if the CBP may be violating the Constitution under this policy.
While I can understand the Border Patrol’s desire to use this policy as an anti-terrorism tool, its expansiveness as to what it can include makes me leery. There is too much of an opportunity here for abuse, and it seems to violate in some way our rights to privacy, especially for American citizens that may have been subjected to these searches.
The CBP did not respond to requests for comment on the ACLU’s action.
#1 by Ed Oswald on August 27, 2009 - 2:21 am
I have been reading through the comments on Slashdot.. which seem to suggest that a fourth amendment argument here is not in play. I should add that the government CAN RETAIN this information. So essentially, wouldn’t that make it a fact-finding mission, which in turn a warrant should be issued for? Point to ponder…
#2 by Jack on August 27, 2009 - 2:48 am
What is sad is that any person bringing information over the border connected to illegal activities / terrorism / etc who is remotely knowledgeable about the law is capable of bypassing this. As a result this ends up being a way to exploit the uneducated travelers. While some criminals may get entangled in this it is likely those who honestly believe they have done nothing wrong. At the end of the day it is a huge expense to our privacy and completely unethical.
#3 by Jean-François on August 27, 2009 - 4:43 am
Good luck with your FOIA request! As someone who crosses the US border a couple of times a year, I’m happy to see that someone else is also thinking that border searches of laptops is frankly unreasonable and is doing something about it.
#4 by Mike Waters on August 27, 2009 - 6:08 am
I have to wonder about material that is covered by attorney client privilege. As a Patent Agent (in both Canada and the US) I often cross the border with highly sensitive client information on my laptop. Does the CBP accept responsibility for any compromise of this data due to their intrusion? The bill could run into the billions of dollars!
#5 by Treris on August 27, 2009 - 6:40 am
To me its incomprehensible that the CBP actually believes that they will catch any terrorist or major criminal this way. Anybody with even half a (criminal) brain wil just upload all data to an online secure server in the home country and the enter the US without even a laptop.
Honestly, how expensive are laptops anymore? Certainly when running an international criminal or terrorist organization you can spend about 350 dollars on a netbook or budget notebook upon entering the US?
Either the CBP therefore consists out of people who have no imagination or creativity, or the CBP and the US govt were just looking for a way to invade the privacy of their citizens and get away with it, take your pick……
#6 by Vince Klortho on August 27, 2009 - 7:04 am
Howzabout a linkie to the complaint, eh?
#7 by George Walters on August 27, 2009 - 7:54 am
I used to haul my laptop back and forth across the US/Canada border, containing a copy of virtually everything on my main desktop at home. No longer. I bought a cheapie little netbook with WiFi, that contains little more than a browser and some remote access software. I can log into my desktop remotely and do what I need, and don’t run the risk of every piece of information I own being handed over indiscriminately to the CBP.
#8 by Marc C on August 27, 2009 - 9:10 am
Just wondering, not being aware of all the laws myself, when you are entering the country, before they pass you through, are you technically in the US, or are you in e.g., Canada, or are you in some twilight international zone? If the second or third, do your 4th amendment rights apply? If you’re not a citizen, does the 4th amendment apply? If you are not technically in country yet, what laws prevent the government from simply saying “OK, we won’t force you to show us your laptop, but if you do not, you shall remain a displaced person”? I was just thinking about that movie Terminal with Tom Hanks where he is a foreign national who cannot be admitted to the US and who cannot return to his country because they are at war, so he basically lives inside the “international” terminal of a US airport. What are the rights afforded to such a person (assuming that situation is plausible)?
#9 by saris on August 27, 2009 - 1:42 pm
Re; Mark C.
I am not sure what the laws are either, however, I am not sure they can reject a confirmed US citizen from re-entering the US. Sure, they can detain you and harass you. I thing they are just going to far with this stuff, especially at the Canadian border. As mentioned before, the real criminals get around this stuff, or find another way to cross the border.
Also, I believe the border stations are owned by the country they represent, so when you are at a US border patrol station, you are on US soil. (at least those not at airports).
#10 by John C on August 28, 2009 - 2:33 am
A lot of these routines aren’t necessarily there to be effective but to be visible. As long as the border patrol *appears* to be working hard at securing their country, that’s enough to justify their present and future budget.
In fact, you can probably apply this to a lot of government official’s actions. Take for example how effective it is to bar felons or registered sex offenders from using social networks *only in Illinois*?
“Perception is reality.”
#11 by Mark Z on August 28, 2009 - 11:45 am
I’m a Canadian truck driver and I have had my laptop seized and searched for child porn. They also searched the truck and removed any and all USB keys, portable hard dives, etc. that I had and had a look at them too.
I have been crossing the boarder carrying loads to and from the US for over 7 years, 5 of those years with a laptop. That was the first, and only (so far) time I have been searched like that. Generally, I have nothing to hide, but that felt like getting it with sand in the lube.
Now I’m not stupid enough to keep my most sensitive data on my latop (like banking and credit card info) as if it was stolen (been there) I don’t need the hastle of calling everyone to change stuff. However, the issue of lawyer / client confidenciality would be a great one to investigate and start a class action suit over. Publicity alone would increase busness I’d imagine.
#12 by joe z on August 28, 2009 - 6:27 pm
Only an idiot would think the govnt would find anything useful from terrorists this way.
Terrorists are most likely remove all traces of their activities from their computers when crossing borders.. the only thing the govnt is going to find with this is your average joe and his porn collection.