Americans have become accustomed to giving up a little privacy, and a lot of convenience, at the border in the name of national security. But when Customs and Border Patrol (CBP) releases a policy (PDF) , as they did in July 2008, which permits officials to subject travelers to suspicionless searches of their laptops, Blackberries, and other electronic devices, we believe that the line between routine and unconstitutional has clearly been crossed. In order to learn more about this alarming policy, the ACLU filed a Freedom of Information Act (FOIA) request today with CBP, a component of the Department of Homeland Security (DHS), to uncover how these suspicionless searches are threatening the constitutional rights of international travelers.
“Based on current CBP policy, we have reason to believe innumerable international travelers — including U.S. citizens — have their most personal information searched by government officials and retained by the government indefinitely,” said Larry Schwartztol, staff attorney with the ACLU National Security Project. “The disclosure of these records is necessary to better understand the extent to which U.S. border and customs officials may be violating the Constitution.”
Suspicionless searches of laptops and other storage devices raise grave constitutional concerns. For one thing, the sheer quantity of data contained on a laptop or on personal electronic devices means that these searches invade travelers’ most intimate personal documents — not to mention sensitive business information routinely transported by executives and lawyers. Do you know anyone whose laptop doesn’t contain at least some information they want to keep confidential? Furthermore, by exposing all this information to government review, the policy may deter some travelers from maintaining documents that reflect unpopular or dissenting views, thus chilling the exercise of core First Amendment activities. And removing the requirement that agents first identify a specific basis for suspicion before instituting a search gives border agents unfettered power, which may easily be wielded in a way that discriminates on the basis of national origin or religion.
We’ll keep you updated on what we learn, and please let us know if your laptop or electronic device has been seized or searched at the border.