Oscar-nominated filmmaker detained at U.S. border sparks debate over searches of electronic devices

Rachel Bunn | Privacy | News | April 10, 2012

An Oscar and Emmy nominated filmmaker and journalist said she was detained by the Department of Homeland Security when trying to re-enter the United States last week after traveling in Great Britain, renewing the legal debate over electronic device searches at U.S. borders and their implications for newsgathering.

Laura Poitras, director of Oscar-nominated documentary “My Country, My Country,” was detained at Newark Liberty International Airport and questioned about her reasons for travel on April 5. Poitras told Salon.com that she was prohibited from taking notes during the questioning and that DHS agents threatened to place her in handcuffs if she did not quit taking notes.

Over the last six years, Poitras has been detained by DHS agents nearly every time she has returned to the United States from traveling abroad, having her electronic devices — including her laptop and camera — and reporter’s notebooks seized on several occasions, according to Salon.com. Poitras said she has stopped traveling with much of her equipment in order to protect it from searches and seizures.

One individual subjected to such a search has sued DHS, alleging that the agency's border search policies violate his First and Fourth Amendment rights. Pascal Abidor, an Islamic studies doctoral candidate, said he was detained by U.S. Customs and Border Patrol (CBP) at the Quebec-New York border crossing in 2010. According to a complaint filed on behalf of Abidor, his laptop, external hard drive and cell phones were searched and he was arrested for several hours while traveling between his college in Montreal and his home in New York City. The National Association of Criminal Defense Lawyers and National Press Photographers Association are also named plaintiffs in the suit. More than 6,500 people have been subjected to electronic device searches at U.S. borders in recent years, according to the complaint.

Border agents have the authority to search all baggage entering or leaving the country, and persons may be searched if they have incomplete documentation, violated a CBP-enforced law, share the name of a person of interest or is chosen at random. According to the CBP website, the agency “strictly adhere[s] to all constitutional and statutory requirements, including those that are applicable to privileged, personal, or business confidential information.” However, the constitutionality of these border searches has been called into question recently.

In addition to Abidor’s complaint, David House, founder of The Bradley Manning Support Network -- a support group for accused whistle-blower Bradley Manning -- alleged he was placed on a watch list that caused him to be detained and searched each time he enters the United States, according to a U.S. District Court opinion.

In 2010, House was detained by DHS agents when re-entering the United States from Mexico, and his laptop, USB storage device, video camera and cell phone were seized. He was questioned about his involvement in the Support Network as well as with Bradley Manning and WikiLeaks. Though all his devices were eventually returned, House filed a complaint alleging the information on his electronic devices had been “disclosed to and retained” by government agencies, violating his First and Fourth Amendment rights.

The court ruled on March 28 that though the search of electronic devices was not different from “the search of a suitcase and other closed containers,” House may have a First Amendment claim against the government stating that because "the initial search and seizure occurred at the border [it] does not strip House of his First Amendment rights.”

“Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border,” the opinion read.

There have been several attempts to curb these searches, including lawsuits and a legislative bill, though courts have ruled that electronic devices are equivalent to suitcases and subject to searches. Journalists who find themselves in this situation may let the agent or customs official know that he or she is a journalist and there is confidential information on his or her computer, according to the Digital Journalist's Legal Guide by The Reporters Committee for Freedom of the Press. Journalists may ask agents or official to contact the agency's lawyer.

Related Reporters Committee resources:

· News: Border searches of journalists raise First Amendment issues

· News: Democracy Now! host detained at Canadian border

· News: Homeland Security restricts laptop searches at border

· Dig.J.Leg.Gd.: Border searches of electronic devices