Civil Liberties Groups Sue DHS Over Searches and Harassment at U.S. Borders

On February 7, 2008, the Electronic Frontier Foundation and the Asian Law Caucus, both civil liberty groups based in San Francisco, filed suit against the U.S. Department of Homeland Security (DHS) for denying access to public records on the questioning and searches of travelers at U.S. borders. Filed under the Freedom of Information Act (FOIA), the suit claims to respond to growing complaints by U.S. citizens and immigrants of excessive or repeated screenings by U.S. Customs and Border Protection (CBP) agents. The complaint can be found here.

ALC states that it has received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, "This is the border, and you have no rights."

"When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep," said Shirin Sinnar, staff attorney at ALC. "The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."

ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, photocopying individuals' personal papers, and searching laptop computers and other electronic devices. The agency failed to meet the 20-day time limit that Congress has set for responding to public information requests, prompting the lawsuit.

"The public has the right to know what the government's standards are for border searches," said EFF Staff Attorney Marcia Hofmann. "Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America's travelers."

Interesting news articles on the suit have appeared in the Washington Post and the San Francisco Chronicle. Both of these articles regard the search and seizure of electronics. The search and possible seizure of laptops and other computer devices without suspicion or any articulated explanation is particularly troublesome to business travelers. The question of whether Customs inspectors have a right to search laptops and electronic devices without reasonable suspicion of a crime has already been under review in both the Fourth and Ninth Circuits. (See, United States v. Ickes, 393 F. 3d 501 (4th Cir. 2005) (did not directly address the level of suspicion required to search laptops but did rule that laptops fall within border search authority);United States v. Arnold, 454 F. Supp. 2d 999 (N.D. Cal. 2006) (reasonable suspicion required to search computers)). 

Border searches are a well-recognized and long established exception to the probable cause and warrant requirements of the Fourth Amendment. Even so, the conduct of such searches, as with any search, must be reasonable.  Sections 482 and section 1582, Title 19 of the United States Code authorize Customs officers to search and seize (detain) persons at the border. Removal of an outer coat such as a sport jacket or suit coat or the examination of a handbag are not considered searches of the person and are treated as searches of containers. Section 1496, Title 19 of the United States Code authorizes the examination of baggage of any person "arriving in the United States" without any suspicion.    

Reasonable suspicion means that the facts known to the customs agents at the time of the search, combined with the agent's reasonable inferences from those facts, provides the agent with a particularized and objective basis for suspecting that the search will reveal contraband or a crime.  (United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304 (1985)).

In recent years, CBP has argued that its authority to protect the country's border extends to looking at information stored on electronic devices such as laptops without any suspicion of a crime. CBP is taking the position that a laptop is the equivalent of a suitcase or container with the information stored on the laptop as the equivalent of physical merchandise packed in luggage. The question is whether the Courts will agree. We will follow this issue and keep you updated of any developments.