MR. KOJO NNAMDIMost of us are used to sacrificing some privacy at the airport. You've got the indignity of removing your shoes and putting everything you're carrying through an x-ray, having bottles of water and toothpaste confiscated, and you know your luggage can be searched item by item. It's part of the broad authority the government has to protect the border. But should everything you're carrying be subject to search and seizure? A new lawsuit argues that a laptop is different than a toiletries case and that laptop is much more personal because it can contain private and even confidential information. We'll explore that debate.

MR. KOJO NNAMDIArt Spitzer is still with us. He's legal director of the ACLU'S National Capital Area. David Cole joins us in studio. He's a professor of constitutional law and criminal justice at Georgetown Law. David Cole, thank you very much for joining us.

MR. DAVID COLEThanks for having me.

NNAMDIArt, what's the basic case that the ACLU is laying out here?

MR. ART SPITZERWe filed this case this morning, Kojo, so you're right on top of the breaking news. In recent months, we've become aware that the government is seizing people's laptops at the border and, in fact, it turns out they've seized thousands of laptops at the border. It's proceeding at a rate of about ten a day for people coming into the United States, including U.S. citizens as well as non-citizens and they're checking out the contents of those laptops at their leisure. The individual plaintiff in this lawsuit had his laptop taken for, I think, 11 days.

NNAMDIHe was on an Amtrak train crossing from Canada to the U.S.

SPITZERFrom Canada, right. He was not exactly flying in from Yemen. And they searched his laptop, including communications that he'd had with his girlfriend, including photographs with her, communications with other people who he knew. He's a graduate student at a university in Canada.

NNAMDIPascal Abidor, a 26-year-old doctoral student and dual U.S. French citizen.

SPITZERRight. And as far as the government was concerned, his laptop was open game. That's a very alarming thought, I think, to many completely innocent people. Businessmen and non-businessmen travel with their personal lives on their laptops. And the idea that the government, without any reason whatsoever, can go through your laptop e-mail by e-mail and letter by letter, is very scary. And we don't think that's appropriate to be the same, as you say, as your toiletry case.

NNAMDIDavid Cole, we're used to being searched when we get to the airport for all kinds of things. Why are laptops different?

COLEWell, I think laptops are different because they contain so much private information and it's virtually impossible to take that private information out. So, you know, if you're traveling internationally and you don't want customs or other law enforcement officers to read your diary or read your love letters or have access to photos -- personal photos, you can just leave them at home. But if they're on your computer, it's much more difficult to leave them at home. And so it's just another sort of realm of magnitude for the government to be able to search this kind of object without any basis or suspicion whatsoever.

COLEAnd the lawsuit doesn't say customs should never be able to search these items. It just says that when you're -- when it comes to a laptop, the government should at least have or be required to have reasonable suspicion that a crime is afoot or that the individual may have evidence of a crime. That's a very low standard. That's the standard that police officers employ to do a short stop and frisk on the street. It's not full-level probable cause. It's not guilt beyond a reasonable doubt. It's just some evidence that there's some concern about criminal activity.

NNAMDIWhat are the limits of the searches we can be subject to?

COLEWell, it depends on where you are. So I teach an entire course on this at the law center for first year law students. But the basic idea is that the Fourth Amendment protects us from searches and seizures that are unreasonable. And in most instances, that means that there -- that they are required to be predicated on probable cause that a crime has occurred and that evidence of a crime will be found and in most instances, predicated on a warrant. But at the border, the court has long held -- the Supreme Court has long held that the border is a categorical exception to the warrant and probably cause requirement.

COLEThat it's reasonable for customs officers to do sort of customary searches of anybody coming across the border because you can't really expect customs to develop suspicion when someone's -- all they see is someone walking from the -- from the pick-up -- luggage pick-up to the customs line. They can't develop suspicion in that short order. And so the court has said, you can search anybody for no reason at all, but only for customary searches. So you can't strip search people simply because they're walking across the border. And the same claim is here. You shouldn't be able to search a laptop that has so much private information, unless you've developed, through your other searches, some concern that there might be evidence of crime to be found.

NNAMDIBecause you are warned that you could be searched, does that mean implicitly that you are agreeing to a search when you cross the border, Art Spitzer?

SPITZERIt doesn't any more than if the government posted a sign at the door of the motor vehicle department that said, by entering here, you agree to be strip searched. That wouldn't mean that they could lawfully strip search everybody who's going in for a driver's license. It seems to me this case presents a very interesting analogy to a case that was decided recently. I don't know if you discussed it on this show, involving the use of GPS tracking devices...

NNAMDIYes.

SPITZER...to follow a person around where he or she moves.

NNAMDIMm-hmm.

SPITZERAnd the Court of Appeals here ruled last month that the government did need a warrant for that because the amount and kind of information that was disclosed by a GPS tracker on your car everywhere you go, 24 hours a day, was so different in quality, not just quantity, from following somebody, you know, with a tail -- a police car behind him on the street, that it made a difference to the Fourth Amendment. And I think that's basically the same argument that's being made here. A search of your laptop is just different in quality, not just quantity, from going through all your dirty laundry and your toilet case.

NNAMDILet's see what members of our audience think. Would you leave your laptop at home if you knew there was a possibility that it could be taken away from you for purposes of going over it when you were returning to the country? 800-433-8850. Would you object to it? 800-422-8850. I was about to say, David, New York City's got the subway search laws Can anyone getting on a bus or a train be searched if they've been warned? Art suggests no, not necessarily.

COLENo. Not necessarily. What the court has said, that in certain areas outside of the border or inside the border, I should say, like airports, the government is permitted to engage in what are called administrative searches, which are sort of across the board searches of everybody who comes into -- gets on a plane, for example, or gets on a train, minimal searches -- the x-ray machine that you put your luggage through. They don't have to have any probable cause for that. And one of the reasons that they don't have to have probable cause for that, the court has said, is because you know in advance that you're going to be subject to that x-ray machine when you go to the airport.

COLEAnother reason is that there's heightened concern about safety in the air. Another reason is that it's a minimally intrusive search. It just identifies whether there's a weapon there or an explosive. It doesn't read your letters. It doesn't read your e-mails and the like. So consent is -- can be relevant in certain contexts, but it certainly doesn't decide the matter as to whether or not a search is reasonable or not.

NNAMDIIf these searches are related to border security, what does that mean? What does that tell us about a case last year involving a laptop where agents found what appeared to be child porn?

COLEWell, you know, the doctrine actually permitting border searches without suspicion is not predicated on border security as such. It's really predicated on the notion that customs, in order to do its job, which is to make sure contraband doesn't come into the United States, to make sure people don't bring stuff in without paying appropriate taxes and to make sure that we are secure at our borders, it has to be able to conduct sort of routine searches of anybody that it pleases. So that's the theory. It's not predicated on security. I think the increased level of laptop searches that we have seen in the last decade is driven by the reaction to 9/11 to be sure. But it's not limited. It can be for -- it could be for child pornography. It could be to determine that a business man is not paying taxes on imports.

NNAMDIWe got an e-mail from somebody in D.C. who says, "Transportation Security Administration is also going through people's laptops, Blackberries, iPods and cameras at airports during internal domestic travel. The National Press Photographers Association, among others, is pursuing these issues." Please comment regarding TSA and domestic travel, Art Spitzer.

SPITZERWe had a case against TSA, maybe it's two years ago now, when they stopped and searched and eventually arrested someone because he was carrying $4,000 and change in cash. And TSA eventually, very quickly actually, settled that lawsuit. They agreed with us that carrying $4,000 and change in cash does not have any relationship to flight security. It's not a bomb. It's not a gun. You can't bring down an airplane with $4,000 in cash and that this was not the business of their agents to be concerned about. Their mission is airline security -- aviation security.

SPITZERAnd so I hadn't heard actually that they're examining the contents of laptops and Blackberries at the airline. Unless they have some very good reason to think that that is related to aviation security, they ought to stop and I think we'd be interested in finding out more.

NNAMDIDavid Cole, if the authorities were investigating a crime and wanted to search my home where most of my private belongings are, they would have to get a search warrant in advance in order to do that. Are you suggesting that if I am coming in across a border and the authorities want to search on my laptop, that even if they kept the laptop, that they should get at least a search warrant indicating a reason for suspicion before they are allowed to go through my laptop?

COLEWell, that's one approach that one could take and indeed...

NNAMDIBecause they keep some of these things for months, don't they?

COLEThey do. And in general, there are -- there is a doctrine that allows the government, when it has a basis for suspicion, probable cause, it allows the government to seize that without getting a warrant, if it needs to do because it will be gone by the time they get a warrant. But then, they have to go to a judge after the fact, promptly, to make sure that there is probable cause. And if not, return it. But I think -- I don't even think the ACLU lawsuit is asking for that, namely a warrant. All they're saying is that before customs agents can search a laptop -- read the contents of a laptop, they ought to have reasonable suspicion. They don't have to go to a judge and get a warrant saying they have reasonable suspicion. They just have to have reasonable suspicion so that if they don't, then someone could sue them after the fact. Or if they don't, then they would not be able use that...

NNAMDIHow do you demonstrate reasonable suspicion, Art Spitzer?

SPITZERWell, ordinarily, you have to show some articulable facts that give you some reason, as David said -- not probably cause, not 51 percent, but some suspicion, some reason to believe that this person is involved in unlawful conduct.

NNAMDIArt Spitzer is the legal director for the ACLU's National Capital Area. Art, thank you very much for joining us.

SPITZERThank you, Kojo.

NNAMDIDavid Cole is a professor of constitutional law and criminal justice at Georgetown Law. David Cole, thank you for joining us.

COLEThanks for having me.

NNAMDIThank you all for listening. I'm Kojo Nnamdi.