Two advocacy groups are pressing a federal appeals court to rule that government officials at U.S. borders are not allowed to search, download or seize information on travelers' laptop computers without reasonable suspicion.
Comment on this article in The Forum.The Electronic Frontier Foundation and the Association of Corporate Travel Executives filed amicus briefs with the 9th Circuit Court of Appeals this week, asking the court to rehear and reverse a decision by a three-judge panel in April that federal officials do not need reasonable suspicion to search laptops or other personal electronic storage devices at the border.
"What this case is doing is turning the whole area of the border into a Fourth Amendment-free zone," said Lee Tien, senior staff attorney for the Electronic Frontier Foundation, a nonprofit public interest group, referring to the part of the Constitution that protects Americans against unreasonable searches and seizures. Tien said under the court's ruling, border agents could search travelers' laptop computers at will, even copying the data or seizing the computer without reasonable suspicion.
"I personally know of situations where all of those have occurred, without any judicial oversight or significant justification," said Tien.
The briefs were filed in the case United States v. Arnold, which involves Michael Arnold, an American stopped at Los Angeles International Airport after returning from the Philippines on July 17, 2005. A U.S. Customs and Border Protection officer asked to look at Arnold's laptop, and found nude pictures and what were thought to be examples of child pornography.
At his trial, Arnold filed a motion to suppress the evidence. Government lawyers argued that officers had reasonable suspicion that a crime had been committed, but that even if they had not, the search was allowed because it took place at a border point of entry. District Judge Dean Pregerson ruled in favor of Arnold.
A three-judge panel of the 9th Circuit Court of Appeals reversed that decision, ruling that customs officials do not need reasonable suspicion to search individuals' laptops. Arnold is appealing that decision by asking a full panel of 11 judges to rehear the case and reverse the earlier decision.
Tien said Pregerson's initial decision noted the significant differences between laptops and other items such as briefcases or suitcases. Tien pointed out that computers and other electronic devices hold vast amounts of private information, including passwords, financial records, health information, business documents and communication records.
"You can't treat them like other devices," he said.
Tien said EFF wants the government to set standards regarding when and why customs agents may search a person's computer. "You have to have some level of suspicion in order to search," he said.
The two advocacy groups also are concerned that CBP lacks an established policy about when officials may seize information and what they then do with it. Susan Gurley, executive director of the Association of Corporate Travel Executives, said the issue first came to her attention when one of the organization's members had a laptop seized and all the information downloaded. No attempt was made to inform the individual as to what the information was used for or whether it was retained or destroyed.
CBP did not respond to a request for comment on Friday.