Court Upholds Government Right to Search Laptops and Phones at Border Crossings

By Paul Riegler on 1 January 2014
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U.S. border crossing in Washington

U.S. border crossing in Washington

A federal judge said Tuesday that the government has an unfettered right to search the portable electronic devices of travelers crossing an international border, and dismissed a lawsuit that challenged the policy.

The decision has the potential to impact travelers entering the U.S. by air and other means, including automobile and train.

The suit was brought by the American Civil Liberties Union on behalf of a graduate student, Pascal Abidor, a U.S.-French dual citizen, who was detained by U.S. Customs and Border Patrol agents in May 2010 after a brief interview revealed he had lived in Jordan and visited Lebanon the previous year.  Abidor’s laptop was searched, after he provided the agents with the password to the device, and was held by the agents for 11 days.

Two groups, the National Association of Criminal Defense Lawyers and the National Press Photographers Association, joined in the suit on behalf of their members, who frequently travel carrying confidential information.

The case directly challenged a 2009 directive by the Department of Homeland Security that allows immigration and customs agents to search any electronic device, including laptops, tablets, and mobile phones, that an individual is in possession of while traveling across an international border into the U.S.

Citing a ruling that a “threatened injury must be certainly impending to constitute injury” and that a potential future injury would not be sufficient, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York found for the defendants, holding that the plaintiffs lacked standing because the actual number of border searches is so small – one in ten million, according to the judge – that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”

The judge also found that, even if the plaintiffs had had standing, they would lose on the merits of the case, ruling that the government does not need reasonable suspicion to examine or confiscate a traveler’s laptop computer, mobile phone, or other electronic device at the U.S. border, although he noted “special protections” afforded to lawyers and journalists that make it “impossible to determine whether, or to what extent, the directives on their face will actually result in any search.”

In his opinion, Korman cited as partial justification for his ruling a comment by former Secretary of Homeland Security Michael Chertoff, who in 2008, wrote that, “Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper.”

In examining the actions of customs agents in assessing Abidor’s circumstances, which included having U.S. and French passports but living in Canada while studying for a degree in Islamic Studies, visas from Lebanon and Jordan, and pictures of Hamas rallies, the judge nonetheless noted that “agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices.”

The judge also openly questioned whether travelers need to take laptops containing sensitive data with them on trips out of the country, wryly noting that, prior to the advent of the laptop, “lawyers, photographers, and scholars managed to travel overseas and consult with clients, take photographs, and conduct scholarly research” without them.

“While it is true that laptops may make overseas work more convenient,” he wrote in his ruling, “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.”

(Photo: Accura Media Group)

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