September 8, 2010 - The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Layers (NACDL) on Tuesday filed a lawsuit challenging the Department of Homeland Security's (DHS) policy permitting border agents to search, copy and detain travelers' electronic devices without reasonable suspicion. All persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention.

This is because Custom Border Patrol (CBP) officers must determine the identity and citizenship of all persons seeking entry into the United States, determine the admissibility of foreign nationals, and deter the entry of possible terrorists, terrorist weapons, controlled substances, and a wide variety of other prohibited and restricted items.

"As an American, I've always been taught that the Constitution protects me against unreasonable searches and seizures. But having my laptop searched and then confiscated for no reason at all made me question how much privacy we actually have," said Abidor. "This has had an extreme chilling effect on my work, studies and private life ? now I will have to go to untenable lengths to assure that my academic sources remain confidential and my personal dignity is maintained when I travel." 

Members of both NACDL and NPPA have also been subjected to the DHS search policy, which interferes with their ability to do their work. NPPA members regularly travel abroad with cameras, laptops and media storage devices to cover global news stories, including wars, protests and foreign elections, and rely on the ability to communicate confidentially with sources. Many NACDL members travel abroad with laptops, blackberries and cell phones as part of their vigorous representation of their clients, and have an ethical duty to safeguard the confidentiality of their clients' information. 

"Unchecked government fishing expeditions into the constitutionally protected materials on an innocent traveler's laptop or cell phone interfere with the ability of many Americans to do their jobs and do nothing to make us safer," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Americans do not surrender their privacy and free speech rights when they travel abroad." 

Documents obtained by the ACLU in response to a separate Freedom of Information Act (FOIA) lawsuit for records related to the DHS policy reveal that more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches between October 1, 2008 and June 2, 2010. 

The ACLU, NYCLU and NACDL filed their complaint against Secretary of Homeland Security Janet Napolitano, U.S. Customs and Border Protection Commissioner Alan Bersin and Assistant Secretary of Homeland Security for Immigration and Customs Enforcement John T. Morton in the U.S. District Court for the Eastern District of New York.