Lawsuit filed over electronic searches, digital device inspections at border crossings

Two civil liberties groups Thursday filed a lawsuit in a federal court in California in response to complaints from travelers of excessive screenings at border-entry points, including inspections of the data on laptops, cell phones and other electronic devices.

The lawsuit was filed in U.S. District Court in San Francisco by the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF). In the legal filing, the two groups ask the court to order the U.S. Department of Homeland Security’s Customs and Border Protection (CBP) division to release records relating to its policies and procedures on the “questioning, search and inspection” of travelers entering or returning to the U.S. at various ports of entry.

The ALC and the EFF, which are both based in San Francisco, said in a joint statement that they filed the suit under the Freedom of Information Act after the DHS didn’t respond to a FOIA request the two groups submitted last October. They added that they had requested the information from the DHS in response to increasing allegations of “excessive or repeated” screenings by CBP agents.

For instance, the ALC received more than 20 complaints over the past year from individuals who said they had been “grilled about their families, religious practices, volunteer activities, political beliefs, or associations” when returning to the U.S. from trips overseas, according to the statement.

Some of the people also claimed that CBP staffers inspected and sometimes copied the contents of their laptop files and cell phone directories without providing any reason for doing so, the ALC and the EFF said. The groups are seeking the information about the screening policies so they can assess whether they should take any legal or legislative actions to try to force the CBP to change its procedures.

DHS officials referred an inquiry seeking comment about the lawsuit and the earlier FOIA request to the CBP’s press office, which didn’t immediately return a phone call placed late in the afternoon Eastern time.

In an interview, Shirin Sinnar, a staff attorney at the ALC, said that in all the cases of electronic devices being inspected that the group knows of, the searches appear to have been done with little obvious cause and very little explanation from the CBP.

“In one case, an individual told us his computer was taken for about 45 minutes,” Sinnar said. “They told him that was how long it took to download the files from his computer.” Some people complained about CBP agents looking at their browser caches to see which Web sites they had visited recently, she added. Others said they weren’t told what information, if any, was being copied and for what purpose.

One of the people who complained to the ALC was Kamran Habib, a software engineer who lives in San Jose and works for a technology vendor that he asked not be identified. Habib said he had been subject to such searches on three occasions last year. Two of the searches took place in the space of two weeks, when Habib was re-entering the U.S. from Canada after separate business trips.

On all three occasions, Habib said, CBP officials took his laptop and didn’t return it until the screening was completed — a process that typically took about two hours. “They haven’t informed me what they did [with the laptop], so I really don’t know,” he said.

He added that when he asked why his computer was being inspected, CBP officials told him it was because they wanted to make sure the laptop didn’t have any pirated content on it. Now, Habib said, he clears all of the personal information from his laptop before traveling outside of the U.S.

The FOIA request and lawsuit by the ALC and the EFF aren’t the first attempt to get the DHS to disclose its policies regarding such border searches. The Association of Corporate Travel Executives (ACTE) filed a similar FOIA request last July, specifically looking for information about the government’s policies on searching laptops and other electronic devices. The DHS did respond to that request, but the document that the ACTE received was heavily redacted.

The issue of searching electronic devices also has come up in at least two earlier legal cases. In July 2005, a laptop, compact disks and a memory stick belonging to an individual named Michael Arnold were searched by CBP officials in the Los Angeles airport. That search led to Arnold’s subsequent indictment on child pornography charges after the agents allegedly found illegal images on his computer.

A federal judge in California later approved a motion by Arnold to suppress the evidence. The government appealed that ruling, but a U.S. Court of Appeals panel agreed with the judge’s ruling and held that CBP agents at a minimum need to have a reasonable suspicion for conducting such searches.

In that case, the ACTE and the EFF jointly filed a friend-of-the-court brief asking the Court of Appeals to affirm the district court judge’s ruling. They argued that searches of computers and electronic devices with no reasonable cause at the border “render meaningless the Fourth Amendment’s prohibition against unreasonable searches and seizures.”

They also claimed that by appealing the decision, the government was essentially “seeking blanket authority to read, seize, and store” all of the information that could be retrieved from the laptops of travelers entering the country. And they asserted that searching laptops was different from other types of searches because the systems often contain vast amounts of personal information, including privileged legal communications, official documents and other confidential data.

However, in a similar case in 2006 involving child pornography images that were discovered during a laptop search by officials at the Seattle airport, the Court of Appeals in San Francisco upheld the conviction of an individual named Stuart Romm. In that case, the court ruled that the search of Romm’s computer was indeed permissible and didn’t require either probable cause or a warrant.

The decision noted that Romm had been sent to Seattle after being denied entry into Canada. Romm, who had pleaded nolo contendere to two child pornography charges in a previous case in Florida, was stopped for questioning at an airport in British Columbia by a border patrol agent who “briefly examined” his laptop and found several child porn Web sites listed in its Internet history, the appeals court said.


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