The Government’s Increasing Interest in Your Electronic Devices

December 7, 2012
By

The American Civil Liberties Union (ACLU) is currently challenging the United States government in two separate cases that seek to limit the powers of border patrol agents in regards to the search of electronic devices without any suspicion of illegal activity. Border agents have traditionally had greater leeway in regards to Fourth Amendment issues due to national security issues, but there is growing concern that travelers are being targeted for political reasons and that agents are stretching their traditional leeway to unreasonable lengths.

On behalf of its clients, the ACLU has taken the government to court over border incidents in both New York and Illinois. Abidor v. Napolitano concerns Pascal Abidor, a Ph.D. student in Islamic studies, who sued the government “after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days. [...] Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches.” (CBLDF.org previously discussed the Abidor case here.)

In House v. Napolitano, computer programmer David House had his laptop, camera, and a USB drive confiscated by border agents at Chicago’s O’Hare Airport, and authorities kept these items for seven weeks before returning them to Mr. House. The ACLU’s lawsuit charges that Mr. House was targeted due to his association with the Bradley Manning Support Network. According to The New York Times, “Pfc. Bradley Manning is a former military intelligence analyst accused of leaking thousands of military and diplomatic documents to the antisecrecy group WikiLeaks.”

Searches and confiscations like those experienced by Mr. Abidor and House are not common (the New York Times cites government data which indicates around a dozen travelers a day have their electronic devices searched), but the rarity of an occurrence is not justification for questionable behavior. There has been some indication that the federal courts agree that border agents may be stepping out of bounds in cases like these:

In March, Judge Denise J. Casper of Federal District Court in Massachusetts denied the government’s motion to dismiss the suit, saying that although the government did not need reasonable suspicion to search someone’s laptop at the border, that power did not strip Mr. House of his First Amendment rights. Legal scholars say this ruling could set the stage for the courts to place some limits on how the government conducts digital searches. “The District Court basically said you don’t need individualized suspicion to search an electronic device at the border,” said Patrick E. Corbett, a professor of criminal law and procedure at Thomas M. Cooley Law School in Lansing, Mich. “What they were troubled with was the fact that the government held these devices for 49 days.”

David House is not the only traveler who feels he was targeted due to political motivations. The New York Times discusses the case of documentary filmmaker (and 2012 MacArthur Fellowship recipient) Laura Poitras, who “estimates that she has been detained more than 40 times upon returning to the United States. She has been questioned for hours about her meetings abroad, her credit cards and notes have been copied, and after one trip her laptop, camera and cellphone were seized for 41 days.”

Ms. Poitras contends that border agents have shown less interest in her after a April 2012 article at Salon.com discussed her plight, but she has still decided to edit her current documentary in Europe, and does not mince words when it comes to what’s happening, accusing the government of using “the border as a way to get around the law.”

A similar experience happened to comics fan Ryan Matheson in 2010, when he faced criminal charges in Canada for digitized comic books that he had on his computer. As the CBLDF reported earlier this year:

After a search of his laptop in 2010, Matheson was wrongfully accused of possessing and importing child pornography because of constitutionally protected comic book images on that device. He was subjected to abusive treatment by police and a disruption in his life that included a two-year period during which he was unable to use computers or the internet outside of his job, severely limiting opportunities to advance his employment and education. Mr. Matheson has agreed to plead to a non-criminal code regulatory offense under the Customs Act of Canada. As a result of the agreement, Matheson will not stand trial.

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Although the outcome of this case is ultimately positive, comic book readers should be aware that there are still dangers for traveling with comics in Canada. Edelson says, “Aside from the very positive outcome to this story, your members should be cautioned concerning the search and seizure regime here in Canada exercised by the Canadian Border Services Agency. Moreover, they should also be aware that although anime and manga is legal in many areas of the United States and Japan, etc., to possess and utilize, the Canadian authorities may take a different view if this material is found on any laptops or mobile devices when you enter the country. Many of the issues that arise in similar circumstances are thoroughly addressed in our comprehensive Notice of Application.”

Edelson’s firm has created a new advisory on traveling with comics and manga in Canada that is available here: CBLDF – Legal Memorandum – Canada Issues. The CBLDF’s previous advisory, which addresses the issues of traveling with comics through international borders is located here: CBLDF Advisory – Comic Book Art at Intl Borders.

Even though he was innocent of any wrongdoing, Matheson was searched and detained by Canadian authorities for the contents of his electronic devices. U.S. border agents have committed similar acts. The outcomes of Abidor v. Napolitano and House v. Napolitano could have a profound impact on the search of digital devices at border checkpoints. Should the cases be decided for the plaintiffs, then there should be fewer victims of draconian and questionably legal border searches.

This holiday season, The Will & Ann Eisner Family Foundation is encouraging everyone who believes in the CBLDF’s important work protecting the freedom to read comics to become a member or give a gift membership in the organization. When you do, they will contribute $10 for each new membership and $5 for every renewing membership made from now until December 31, so join today!

Mark Bousquet is the Assistant Director of Core Writing at the University of Nevada, Reno, and reviews movies and television programs at Atomic Anxiety.