In 2010, a graduate student named Pascal Abidor was traveling from Canada to New York when he was removed from his train and detained by American border agents. In addition to being handcuffed and questioned, his laptop was also seized. Abidor brought suit on the grounds that the seizure of his laptop was an unreasonable search in violation of the Fourth Amendment.
Abidor, represented by an attorney from the American Civil Liberties Union, was also joined by the National Association of Criminal Defense Lawyers and the National Press Photographers Association as plaintiffs. In one of the last court decisions of 2013, the Federal District Court for the Eastern District of New York issued its decision and upheld the government’s right to perform laptop searches at the border.
This decision is so crushing because the judge upheld the decision on multiple grounds. Judge Korman found that the plaintiffs actually did not have standing for their lawsuit because of how rare these types of searches are. The judge believed that these laptop border searches happen so infrequently that there is not a “substantial risk” of being subjected to one of these searches. Judge Korman explained :
“While it is true that laptops may make overseas work more convenient,” he wrote, “the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.”
Alternatively, the Judge explained that even if the plaintiffs did have standing, he would have ruled that reasonable suspicion is not necessary to perform border searches on laptops, cell phones or other electronic devices. In United States v. Cotterman, the Ninth Circuit (which contains California, Washington, Oregon, Idaho, Montana, Nevada, Alaska, Arizonia and Hawaii) is the only part of the United States that has held that reasonable suspicion is necessary for laptop border searches.
At this time, the plaintiffs are still undecided as to whether they will attempt to file an appeal.
It seems that the judge in Abidor’s case may be out of touch. Laptop searches are on the rise, and many argue that the process may be abused. Further, the Ninth Circuit Court of Appeals limited electronic device searches in a decision made early last year. As seen in CBLDFs defense of Ryan Matheson, an American manga fan who was arrested by Canadian border authorities for constitutionally protected images on his laptop, searches of electronic devices at the border are unfortunately becoming more of a problem for travelers. CBLDF has issued an advisory to help explain these border searches and what you can do to protect yourself. Our recent FAQ on obscenity also helps people understand their rights.
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Eric Margolis is a 3L at St. John’s Law School who wishes to pursue a career in Entertainment / Intellectual Property law. You can contact him at EricMargolis310@gmail.com!