Commentary: Suspicion-less laptop searches at U.S. border are over the borderline

The American Civil Liberties UnionSeptember 13, 2010 

Like most Americans, when Pascal Abidor crossed the border to return home to the United States this spring he didn't anticipate that border agents would use the opportunity to search through the contents of his laptop. And he certainly didn't anticipate that the agents would confiscate the computer and continue to search through his most private files — including vacation photos, financial records and chats with his girlfriend — long after he was allowed to cross into the U.S.

Mr. Abidor seems to have drawn agents' attention solely because he is an Islamic Studies doctoral candidate who has traveled occasionally to the Middle East.

That wrongheaded and discriminatory basis was apparently reason enough under a Department of Homeland Security policy that permits border agents to search the contents of an international traveler's electronic devices, including laptops, cell phones and smart phones, even when they have no reason whatsoever to believe the traveler has done anything wrong or that the search will turn up evidence of wrongdoing.

This policy should alarm everyone.

Today, our laptops and cell phones function as extensions of our home offices and, in some sense, extensions of ourselves — repositories of our most personal photographs, financial and medical records, correspondence and even diaries.

When such information is kept inside the home, the government generally cannot look through it without first going to a judge and obtaining a warrant based on probable cause. But at the border, the government claims the power to rifle through this deeply personal and intimate information for any reason or no reason at all.

This is especially troubling for those of us whose professions require us to keep information in confidence. From clergy to journalists to lawyers to doctors, many who must travel internationally for work have records of deeply personal information, and fear that their sources will dry up, or that they will violate their professional obligations, if they are selected for a suspicion-less search.

The Department of Homeland Security's invasive policy reveals a growing pattern of the government using the border to evade the normal constitutional constraints on searches.

According to media reports, the government claims its border search authority extends 100 miles into the country – an area in which nearly two thirds of the U.S. population lives — and that it has even been using this authority to conduct suspicion-less and warrant-less "border" searches on trains that never cross the border.

Everyone has an interest in a secure border. But purely suspicion-less searches do nothing to make us safer — on the contrary, they waste limited national security resources. The government has never produced any data to prove that searches of people who are not suspected of any wrongdoing actually make us safer.

Merely studying about Islam and traveling to the Middle East is far from a sign of wrongdoing. In an era in which we recognize that it is more important than ever before for us to understand the Middle East, we should not be ostracizing those who choose to do so. Yet policies such as the governments suspicion-less laptop search policy leave all of us susceptible to invasive searches of our private and expressive material based on whatever criteria individual border agents may choose to deploy.

Earlier this month, the American Civil Liberties Union, the New York Civil Liberties Union, the National Press Photographers Association and the National Association of Criminal Defense Lawyers joined together to challenge the government's suspicion-less search policy. We hope the resulting lawsuit will establish the rule that the government cannot search through travelers' laptops and cell phones without a reasonable belief that the search will turn up evidence of wrongdoing.

ABOUT THE WRITER

Catherine Crump is a staff attorney with the ACLU Speech, Privacy and Technology Project.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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