The National Association of Criminal Defense Lawyers is among the plaintiffs in a new lawsuit that seeks to restrict airport searches of laptops and other electronic devices.
The association — as well as a group of photographers and a doctoral student — says the searches as they are done now violate the Fourth Amendment because customs officials are not required to have suspicion of wrongdoing before searching and copying electronic information. Some of the information is also protected by the First Amendment or by attorney-client privilege, the plaintiffs argue in their complaint.
Lisa Wayne, the president-elect of the National Association of Criminal Defense Lawyers, is among the lawyers whose laptop has been searched without cause, according to the complaint.
Wayne, of Denver, Colo., was searched in August 2008 while traveling home from Mexico after attending a program sponsored by the National Institute for Trial Advocacy, the complaint says. At the Houston airport, a customs official asked her to turn on and log in to her laptop, which the official then took out of her sight for 30 minutes.
In the future, the complaint says, Wayne plans to refuse to log in to her laptop and cite attorney-client privilege. But she fears customs officials “may nonetheless detain her laptop and ultimately gain unauthorized access to its contents.”
The American Civil Liberties Union is representing the defense lawyers and other plaintiffs. In a news release, the ACLU said it filed the lawsuit today in the Eastern District of New York. Click here (PDF) for a copy.
Matthew Chandler, a spokesman for the Department of Homeland Security, declined to comment on the details of the complaint. But, he wrote in an e-mail, electronics searches "are a targeted tool" that customs officials use "in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country. The Department has been transparent about these searches — the policies themselves, as well as a privacy impact assessment of the policies, are available on DHS.gov.”
The complaint asks a federal judge to stop the U.S. Department of Homeland Security and its components from enforcing their current policies on electronic searches.
“Electronic devices like laptops, ‘smart’ phones, and external data storage devices hold vast amounts of personal and sensitive information that reveals a vivid picture of travelers’ personal and professional lives, including their intimate thoughts, private communications, expressive choices, and privileged or confidential work product,” the complaint reads.
According to the complaint, more than 6,500 people were subjected to a search of electronic devices as they crossed U.S. borders from October 2008 to June 2010. Almost 3,000 of them were U.S. citizens, and some of them were members of the National Association of Criminal Defense Lawyers and the National Press Photographers Association. Pascal Abidor, the doctoral student and third plaintiff, was searched and held at the U.S.-Canadian border in May.
Updated at 4:43 p.m. with Chandler's comment.