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Government Claims Unlimited Discretion to Look Through Your Laptop at the Border

Ben Siracusa Hillman,
Speech, Privacy and Technology Project
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March 9, 2011

Last May, U.S. Customs and Border Patrol agents searched and took Pascal Abidor's laptop and external hard drive when he was returning home to New York City from Montreal, Canada, where he attends graduate school. When his laptop and hard drive were returned to him 11 days later, Abidor discovered agents had opened numerous files, including personal photographs, a transcript of a chat with his girlfriend, copies of email correspondence, class notes, journal articles, tax returns, his graduate school transcript, and his resume.

This past fall, we, the New York Civil Liberties Union, and the National Association of Criminal Defense Attorneys (NACDL) filed a suit on behalf of Abidor, the NACDL, and the National Press Photographers Association, challenging the government's policy of searching and keeping laptops, cell phones, and other electronic devices at the border in the absence of any suspicion of wrongdoing. Today, we filed a brief asking the court to reject the government's attempt to dismiss our suit.

As Abidor's situation makes all too clear, in today's world, the search of a computer or phone is akin to — if not more invasive than — the search of a home or office. But while the government ordinarily needs probable cause and a warrant issued by a judge to search a home or office, it claims the authority to look through your laptop or phone simply because you choose to cross the international border with them, and to keep them after you leave so it can continue searching them.

According to the government, a computer or phone should be treated just like any other baggage one chooses to bring across the border, subject to search without any specific justification. The government's policies on these searches set no limitations on what the government may search or how long it may keep your devices.

But electronic devices are very different than suitcases. Laptops and phones hold an incredible amount of personal and private information. As Abidor was reminded all too well when he saw which files the government had reviewed, our electronic devices maintain a nearly indelible record of what we research, read, or say to others, and of the people with whom we associate.

Of course, searching an electronic device at the border may sometimes be justified. But the government's interests can be adequately accommodated by requiring some justification for the searches. The courts already require a showing of "reasonable suspicion" for some other types of border searches, and our suit asks that the law afford this protection to electronic devices as well.

The alternative — allowing the government to search our laptops and cell phones in the absence of any suspicion, as if they were suitcases — is simply too invasive of our privacy and does not reflect the reality of the role that these devices now play in our everyday lives.

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