Other Interested Parties
The FOIA request and lawsuit by the ALC and the EFF aren't the first attempt to get the DHS to disclose its policies regarding such border searches. The Association of Corporate Travel Executives (ACTE) filed a similar FOIA request last July, specifically looking for information about the government's policies on searching laptops and other electronic devices. The DHS did respond to that request, but the document that the ACTE received was heavily redacted.
The issue of searching electronic devices also has come up in at least two earlier legal cases. In July 2005, a laptop, compact disks and a memory stick belonging to an individual named Michael Arnold were searched by CBP officials in the Los Angeles airport. That search led to Arnold's subsequent indictment on child pornography charges after the agents allegedly found illegal images on his computer.
A federal judge in California later approved a motion by Arnold to suppress the evidence. The government appealed that ruling, but a U.S. Court of Appeals panel agreed with the judge's ruling and held that CBP agents at a minimum need to have a reasonable suspicion for conducting such searches.
In that case, the ACTE and the EFF jointly filed a friend-of-the-court brief asking the Court of Appeals to affirm the district court judge's ruling. They argued that searches of computers and electronic devices with no reasonable cause at the border "render meaningless the Fourth Amendment's prohibition against unreasonable searches and seizures."
They also claimed that by appealing the decision, the government was essentially "seeking blanket authority to read, seize, and store" all of the information that could be retrieved from the laptops of travelers entering the country. And they asserted that searching laptops was different from other types of searches because the systems often contain vast amounts of personal information, including privileged legal communications, official documents and other confidential data.
However, in a similar case in 2006 involving child pornography images that were discovered during a laptop search by officials at the Seattle airport, the Court of Appeals in San Francisco upheld the conviction of an individual named Stuart Romm. In that case, the court ruled that the search of Romm's computer was indeed permissible and didn't require either probable cause or a warrant.
The decision noted that Romm had been sent to Seattle after being denied entry into Canada. Romm, who had pleaded nolo contendere to two child pornography charges in a previous case in Florida, was stopped for questioning at an airport in British Columbia by a border patrol agent who "briefly examined" his laptop and found several child porn Web sites listed in its Internet history, the appeals court said.
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