DHS and ACLU Dispute Electronic Border Searches in Court

The Homeland Security Department will defend border agents' unlimited authority to search U.S. citizens' laptops, digital cameras and other electronic devices in a federal courthouse in Brooklyn this afternoon.

The lawsuit, brought by the American Civil Liberties Union in 2010, charges that such unlimited search authority violates citizens' Fourth Amendment protections against unreasonable searches and violates their First Amendment rights by allowing border guards to detain "expressive materials," such as photos, emails and text messages for days at a time

The lawsuit argues Customs and Border Protection agents should only be allowed to search an electronic device if they have reasonable suspicion its owner has committed a crime.

The plaintiffs in the case are the National Association of Criminal Defense Lawyers, the National Press Photographers Association and Pascal Abidor, a dual French-American citizen whose laptop was held by U.S. border agents for 11 days after he returned to the U.S. from a train trip to Montreal.

After he got his laptop back, scans revealed officials had searched through Abidor's personal photos and online chats with his girlfriend, according to the complaint in the case.

"Allowing government officials to look through Americans' most personal materials -- the things we store on our laptops, cameras and cell phones -- without reasonable suspicion is unconstitutional, inconsistent with American values and a waste of limited resources," Catherine Crump, the ACLU's lead attorney on the case, said in a statement.

Friday's hearing is on a government motion to dismiss the case. The Homeland Security Department argued there's no legal precedent for electronic materials being treated differently under search and seizure laws than non-electronic items. The ACLU suit doesn't dispute the constitutionality of unlimited non-electronic border searches in this suit.

The government also argues, less convincingly, that the plaintiffs don't have legal standing to bring their suit because they can't prove their electronic devices are likely to be searched or detained by border guards in the future.