Judge Hears Arguments in Case Challenging Search of Electronic Devices at Borders

In the past three years, nearly 12,000 people have had their electronic devices searched when crossing international borders into the United States. These searches are being challenged in Abidor v. Napolitano, a case that could have repercussions for anyone carrying electronic devices when crossing international borders into the United States.

The case sheds light on the border search issues that CBLDF has been tracking and about which we issued an advisory last spring. Abidor v. Napolitano pertains specifically to the search and seizure of Pascal Abidor’s laptop when he traveled by train from Canada to New York. Upon learning that Abidor, an American and French citizen and Islamic Studies graduate student, had traveled in the Middle East, US Customs and Border patrol agents pulled Abidor aside and ordered him to log into his laptop. They proceeded to examine the contents of his laptop, which included images of Islamic militants that Abidor was using for research purposes. Abidor was then handcuffed, placed in a jail cell, and interrogated for several hours by Department of Homeland Security agents. Abidor was released that night, but the DHS held onto his laptop for a further 11 days, returning it only after the ACLU inquired after it on Abidor’s behalf.

On September 10, 2010, the ACLU filed a lawsuit on behalf of Abidor, the National Association of Criminal Defense Lawyers (NACDL), and the National Press Photographers Association (NPPA), arguing that DHS’s practice of searching personal electronic devices is unconstitutional, violating both the First and Fourth Amendments.

On Friday, July 8, 2011, US District Judge Edward Korman heard arguments in the case. Mickey Osterreicher with the NPPA Advocacy Committee blog covered the arguments, noting the allegations of the complaint:

Specifically the complaint alleges that policies of the Department of Homeland Security (DHS) that “authorize the suspicionless search of the contents of Americans’ laptops, cell phones, cameras and other electronic devices at the international border . . . violates the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny.”

The US government moved to dismiss the case. From Osterreicher:

Not surprisingly the government moved to dismiss on the grounds that the plaintiffs lacked standing to challenge the policies because they could not demonstrate the likelihood of future harm along with being the specifically subject to the government policy. The government also argued that the policies do not violate either the Fourth Amendment, which protects citizens against unreasonable search and seizure, or the First Amendment, protecting free speech.

The blog goes on to point out that several cases have supported the broader scope of the searches and seizures that take place at borders. Osterreicher expressed concern over Judge Korman’s interpretation of the arguments in the case:

Judge Korman, who seemed to embrace the government argument, repeatedly asked ACLU attorney Catherine Crump to justify why electronic devices should have greater protection than confidential information found in a briefcase or luggage. In requesting that Judge Korman “do something that other judges haven’t done,” Ms. Crump asserted that the incredible amount of personal information stored on these devices and used on a daily basis by the public should afford them such increased protection.

Despite those assertions the judge appeared to retain an anachronistic approach to the question and did not seem inclined to distinguish current technology and data storage from searches of papers and other tangible possessions at the border. He also articulated a somewhat flawed analogy when he said that if he didn’t want to go through security when flying domestically he could take another mode of transportation, thus overlooking the fact that all those wishing to return to/enter the U.S. have to go through customs and be subject to search. The judge also expressed the unrealistic view that if people didn’t want the government to search their devices they should travel without them.

CBS News also covered the story, investigating the number of searches that led to seizures and prosecution:

Of those nearly 12,000 people whose devices were searched, only 308 persons’ computers, cell phones, and Blackberries were sent to the Immigration and Customs Enforcement forensics lab in Fairfax, Virginia, for further examination. Most frequently the investigations focused on child pornography, but cases also concerned weapons exports, money laundering, drug smuggling, intellectual property rights, and potential ties to terrorism.

Homeland security officials could not say how many searches led to criminal prosecutions.

When asked by Judge Korman why electronic devices differed from the confidential papers and materials otherwise carried by travelers, ACLU attorney Catherine Crump pointed out the following (from CBS News):

Crump said the sheer volume of personal information on a laptop was one difference. In addition to his photos, border agents looked at Abidor’s letters to his girlfriend, his tax returns, and his class notes. His hard drive was copied and could have been shared with local and international law enforcement agencies.

Crump also said device searches could have a “severe chill on free speech” and the number of people directly affected did not matter when it came to a violation of constitutional rights.

You can view video of CBS News coverage of the story, including an interview with Abidor, here.

Abidor, like many people who have had their electronic devices searched at borders, now takes profound precautions when crossing borders. He deletes all images from his laptop, a practice that seems to be distressingly common now. Even in its own advisory for individuals crossing borders, CBLDF recommends that people travel with as little data as possible on their electronic devices. If the ACLU’s efforts on behalf of Abidor, NACDL, and NPPA succeed, everyone should enjoy greater freedom in what content they carry on their electronic devices. However, Judge Korman’s response to the government’s motion to dismiss Abidor v. Napolitano is worrisome. A decision is expected in the next few months.

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