Washington, DC (September 7, 2010) – Do you want the federal government to know all the details of your most personal affairs? Your internet browser history? Your confidential family matters? Your medical issues? Your divorce? Your workplace or auto accident? Your strategic business plans? Your tax analysis? Your will? The fact that you have consulted with a criminal defense lawyer?
Today, leading civil rights groups began a legal action seeking to put an end to suspicionless U.S. Customs searches of Americans’ personal and professional electronic data. This includes privileged information in your attorney’s files that may be stored on a laptop computer or other electronic storage device, such as a flash drive, camera, “smart” phone, or the like.
Between October 1, 2008 and June 2, 2010, over 6,500 people—nearly 3,000 of them U.S. citizens and some criminal defense lawyers—were subjected to a search of their electronic devices as they crossed U.S. borders. In the action filed today in U.S. District Court for the Eastern District of New York, the National Association of Criminal Defense Lawyers (NACDL), the American Civil Liberties Union (ACLU), and the New York Civil Liberties Union (NYCLU) are representing plaintiffs in a constitutional challenge to Department of Homeland Security (DHS) policies that authorize the suspicionless search of laptops and other electronic devices at the international border.
“This lawsuit will have significant implications for personal and privileged information, such as your legal and medical files and information in the possession of your minister, priest, imam, or rabbi,” explained NACDL President Jim E. Lavine, of Zimmermann, Lavine, Zimmermann & Sampson, PC, Houston, TX.
Plaintiffs in this case include a U.S. citizen, Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border as well as two U.S. professional associations whose members have been subjected to the challenged policies. They are NACDL, the nation’s preeminent criminal defense bar association, and the National Press Photographers Association (NPPA), whose membership includes television and still photographers, editors, students and representatives of the photojournalism industry.
NACDL is concerned about the constitutional rights of all people subject to these searches. “But where the target of these searches are attorneys, including criminal defense attorneys, information and communications protected by the attorney-client privilege and attorney work product doctrines are vulnerable, posing a serious and chilling threat to the fundamental right to counsel,” Lavine explained.
The Department of Homeland Security issued the challenged policies to the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), instructing those agencies to search any or all electronic devices that “contain information,” including laptops, cameras, iPods, mobile phones, “smart” phones, and information storage devices, according to the lawsuit. “The policies allow border agents to detain the devices even after a traveler has been permitted to enter the country so that they can continue their searches. The policies do not place any time limits on how long DHS can keep travelers’ devices, nor do they limit the scope of private information that may be searched, copied or detained,” according to the complaint.
Recent changes to electronic surveillance law already make it much easier for the government to intercept the international communications of criminal defense lawyers representing overseas clients or conducting investigations abroad. Accordingly, many attorneys, including NACDL members, view their ethical obligation to safeguard client confidences as requiring face-to-face meetings with clients and witnesses located abroad. Given the scope of what the challenged policies permit though, NACDL is extremely concerned about what Lavine calls “a dangerous chilling effect on the attorney-client relationship.” As Lavine points out, “Why would any client or witness outside the country want to talk to a criminal defense lawyer if they know the lawyer’s computer is subject to such a search on returning to the U.S.?”
Plaintiffs in this case are not seeking monetary damages for the harm done to them. Rather, they are simply asking the court to declare that defendants have violated their constitutional rights. In addition, plaintiffs seek an order preventing future such searches without a warrant and probable cause, or at least reasonable suspicion, and requiring defendants to return all information unlawfully obtained from plaintiffs and their members and to destroy all copies of it.
NACDL, the ACLU and the NYCLU filed today’s 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.
Attorneys on the case are Michael Price of NACDL, Catherine Crump and Melissa Goodman of the ACLU, and Christopher Dunn of the NYCLU.
The complaint is available here.
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