Last week, the American Civil Liberties Union challenged in court the Department of Homeland Security's policy of allowing customs agents to seize and view the contents of laptops and other electronic devices without reasonable suspicion of wrongdoing. The lawsuit is a worthy attempt to close a gaping loophole in the protection of personal privacy. But courts so far have been inhospitable to such claims, which is why Congress must act.
According to the ACLU's complaint, between Oct. 1, 2008, and June 2, 2010, more than 6,500 travelers — nearly 3,000 of them U.S. citizens — had their electronic devices searched as they crossed U.S. borders under policies promulgated by two Homeland Security agencies: U.S. Customs and Border Protection, and Immigration and Customs Enforcement.
The lead plaintiff is Pascal Abidor, a U.S.-French dual citizen and doctoral student at McGill University in Montreal. Returning to the United States by train in May, Abidor had his laptop seized. After a customs agent found images related to Islamic studies, Abidor's academic specialty, he was handcuffed and detained. His laptop was finally returned to him 11 days later, after agents viewed several personal files, including the transcript of a chat with his girlfriend.
Two federal appeals courts — in cases involving child pornography found on computers — have ruled that border searches, even without a warrant or reasonable suspicion of wrongdoing, are broadly permissible under the government's sovereign right to secure the borders.