The two organizations filed an amicus brief with the court arguing that the broad powers supported by the earlier appeals panel decision in United States v. Arnold represent a violation of the Fourth Amendment protection against unreasonable search and seizure.
The Fourth Amendment of the U.S. Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The federal courts have held that searches of laptops and other electronics devices belonging to people entering or leaving the country qualify as a permissible exception to the Fourth Amendment. But case law related to the issue supports a distinction between two types of searches -- routine and nonroutine.
Nonroutine searches, such as a strip search, are distinguished by their invasiveness and require a "reasonable suspicion" that the person searched is involved in an illegal activity.
A Congressional Research Service report in March noted, "The issue that the federal courts have been confronting recently is whether the border search exception [to the Fourth Amendment] applies to electronic storage devices and, if it does, whether a laptop border search is routine or non-routine, and if found to be non-routine, what degree of suspicion or cause is needed to justify the search to satisfy the Fourth Amendment."
The ACTE and the EFF argue that the blanket right to seize, copy, and store information on electronic devices threatens the ability of businesses to protect confidential information and establishes an end-run around the Constitution. They argue that the contents of an electronic device are particularly personal and that such devices should be viewed differently than suitcases to be opened.
"In essence, a search of the contents of a laptop computer achieves electronics surveillance of a person's life," the amicus brief states. "Only an extensive search of a person's home could be expected to provide the government with as much private information about a person as a search of [his or her] laptop computer could provide."
Susan Gurley, executive director of ACTE, said that her organization wants to see the rules about data clarified so that businesses know where they stand and can take appropriate precautions. "It's a huge economic issue for businesses," she said.
"Once the information has been downloaded and it turns out you're not a criminal, what happens to your data?" Gurley asked. "How can you be assured that your information is destroyed?"
Gurley said ACTE has sought information about how the government deals with data it retains through a Freedom of Information Act request and that the government was unresponsive.
"We believe that it is not enough to say, 'We're the government; trust us,' " said Gurley. "Our position is people should know what the rules and regulations are so you can adjust your business practices to what happens at the back end."
The issue isn't black and white, however. As the CRS report observes, "Laptops can present a problem to the national interest in controlling what enters the country because the vast and compact storage capacity of laptops can be used to smuggle illegal materials." Child pornography, unauthorized copies of copyrighted material, and military secrets represent examples of such materials.
The fact that such content can travel more or less unhindered over the Internet can be seen either as ironic or as a sign that the Internet will eventually be subjected to the same broad scrutiny (if it isn't already).
Further complicating matters is the outrage expressed by U.S. officials over a report on Chinese cyberespionage in the National Journal that said several senior executives of U.S. corporations have "had their electronics 'slurped' while on business in China." The government's stance appears to be that it wants unhindered access to people's data but doesn't appreciate it when other nations take similar liberties.
Chances are this is an issue that will ultimately be decided by the Supreme Court.