Want CNET to notify you of price drops and the latest stories?

Judge will hear challenge to laptop border searches

Suit tests Obama administration's claim that agents may search laptops, cell phones, and other electronic devices at the border without evidence of illegal activity.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

A federal judge will hear arguments today in a lawsuit challenging the Obama administration's claim that it can search travelers' laptops, cell phones, and other electronic devices at the border and seize them indefinitely.

Civil liberties groups filed the suit in September, which challenges the Department of Homeland Security's policies on constitutional grounds and asks a federal district court in New York City to bar the agency from continuing its current practices.

In August 2009, Homeland Security announced that it would continue a Bush administration policy that allows laptops and electronic gear to be seized and held indefinitely even if there is no evidence of illegal activities. The complete contents of a hard drive or memory card can be shared with other government agencies and perused at length for evidence of lawbreaking.

Courts have generally upheld the ability of border agents to conduct searches, even relatively invasive ones. This legal challenge effectively says that the changes in technology -- mobile phones and PDAs are growing smaller and more capable and can carry the equivalent of entire libraries and filing cabinets of data -- require judges to craft a new rule limiting the scope of border searches that have become more invasive.

The ACLU, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers filed a lawsuit saying that the rules violate travelers' First Amendment right to free speech and the Fourth Amendment privacy right to be free from unreasonable government searches. Over 6,500 travelers were subjected to intrusive searches of their electronic devices between October 2008 and June 2010, the groups say.

In a legal brief (PDF) attempting to have the lawsuit dismissed, the Obama administration defended its policies as an extension of its traditional authority to search travelers at national borders:

Plaintiffs' claim that the suspicionless search of the contents of laptops and other electronic devices at the border violates the Fourth Amendment has no merit... Thousands of suitcases and other containers cross the border each day, and clearly many contain highly personal items such as photographs, medicines, underwear, contraceptive devices, and personal papers (e.g. diaries, letters, tax information). A rule requiring the government to have reasonable suspicion before conducting a border search of a container that may contain personal items of information would thus implicate such searches that have long been viewed as proper even though conducted without suspicion...

Plaintiffs' First Amendment challenge to the policies also fails as a matter of law. An otherwise valid search under the Fourth Amendment does not violate the First Amendment rights of an individual -- even a completely innocent individual -- simply because the search uncovers expressive materials.

Sen. Russ Feingold, a Wisconsin Democrat who lost his re-election bid last year, had previously introduced legislation that would require Homeland Security to demonstrate that it had reasonable suspicion of illegal activity before searching electronic devices carried by U.S. residents. To hold devices more than 24 hours, border agents would be required to prove probable cause and secure a warrant or court order.

In 2006, the Ninth Circuit Court of Appeals effectively blessed Homeland Security's practice, saying in a 3-0 ruling that border police may conduct random searches of laptops -- including extensive forensic analysis using the EnCase software -- without search warrants or probable cause. "Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant," the three-judge panel ruled.

Last year, however, a federal judge in California placed some modest limits on Homeland Security's border search authority. U.S. District Judge Jeffrey White in the Northern District of California said that border agents cannot seize the laptop of an American citizen, keep it locked up for months, and examine it for contraband files without a warrant half a year later.