Group sues Department of Homeland Security to stop laptop searches

Law currently allows U.S. customs and border agents to search any laptop, smartphone, or storage device without suspicion

What's the difference between the contents of a briefcase and a laptop? To U.S. Customs and Border Protection agents, absolutely nothing.

The lack of differentiation is a major sticking point for a variety of groups that may carry sensitive or confidential business files internationally, such as business travelers, lawyers, journalists, and researchers. A case filed on Tuesday hopes to limit searches in the future: The National Association of Criminal Defense Lawyers has sued the Department of Homeland Security, asking for the searches to stop unless the agents have suspicions that a crime is occurring.

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"It is not a lot to require reasonable suspicion," says Michael Price, the NACDL's national security coordinator and an attorney on the case. "It is showing that there is some connection between the person that you want to search and your stated goal."

As it currently stands, case law has supported the power of border agents to search, without suspicion, any laptop, smartphone, or storage device. Most cases that made it to court involved either pornography or copyright violations, resulting in little sympathy from the courts for the plaintiffs.

The NACDL lawsuit, however, involves professionals: a postgraduate student in Islamic studies, press photographers, and the NACDL itself. The aim is to convince the courts to recognize the difference between briefcases and laptops or other electronic devices, which "hold vast amounts of personal and sensitive information that reveal a vivid picture of travelers personal and professional lives, including their intimate thoughts, private communications, expressive choices and privileged or confidential work product."

Giving agents the power to search through those records and, in most cases, copy the files and store them indefinitely violates the constitution, says Price. In the past two years, more than 6,500 people -- among them about 3,000 U.S. citizens -- had their electronic devices searched at the border.

"There is a border search exception that has been in place for a long time," Price says. "But when those cases where decided, we were talking about suitcases or the gas tank of a car ... It has become clear very quickly that there is a quantitative and a qualitative difference between a suitcase and your laptop."

In July, U.S. customs officials detained security research Jacob Appelbaum at the border. The officials inspected his laptop and seized three mobile phones, searching for any information on Wikileaks, according to media reports. Wikileaks angered U.S. government officials earlier this year when it leaked a video of U.S. soldiers shooting civilians in Iraq and when it published more than 70,000 intelligence reports relating to Afghanistan.

The primary plaintiff in the NACDL case is Pascal Abidor, a 26-year-old postgraduate student holding citizenship both in France and the United States. While traveling back to his home in New York City from studying at McGill University in Montreal, border agents took his laptop and, using a password he provided, searched through his data. Needless to say, as a student of Islamic studies, Abidor had files that interested the casual searchers, such as photos of Hamas and Hezbollah rallies. The agents then searched and handcuffed Abidor, detaining him for about three hours, as well as fingerprinting and photographing him during the process.

The officers returned Abidor's laptop and hard drive 11 days later.

In discussing the impact on the postgraduate student, the lawsuit claims:

Mr. Abidor has already started traveling with less information on his computer. Given his area of study, Mr. Abidor is particularly concerned about having information on his laptop that could be misconstrued by border officials. He now self-censors what types of photographs he downloads to his computer.

The lawsuit does not have an easy road ahead. Legal precedent has, so far, found in favor of the U.S. government, says Marcia Hoffman, a senior staff attorney with the Electronic Frontier Foundation.

"Folks have tried to argue that a search of a laptop is invasive, that there is a lot of material on a laptop -- it is not like the search of a briefcase," Hoffman says. "The courts, so far, have not bought that argument."

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