Judge Says Border Officials Can Search Your Laptop, Cellphone

A Border Patrol officer inspects vehicles at a checkpoint near the Mexican border at the town of Tombstone, Arizona on April 21, 2010.
National Journal
Aliya Sternstein, Nextgov
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Aliya Sternstein, Nextgov
Jan. 2, 2014, 7:21 a.m.

A fed­er­al court on Tues­day up­held a Home­land Se­cur­ity De­part­ment policy that al­lows au­thor­it­ies at bor­der check­points to search laptops and oth­er elec­tron­ic devices be­long­ing to U.S. cit­izens and for­eign­ers.

A gradu­ate stu­dent and sev­er­al civil liber­ties groups in 2010 sued the gov­ern­ment to stop a 2009 DHS dir­ect­ive au­thor­iz­ing the in­spec­tion of any elec­tron­ic devices trav­el­ers carry across an in­ter­na­tion­al bor­der in­to the United States. Pas­cal Abidor, a 26-year-old stu­dent at the Mc­Gill Uni­versity In­sti­tute of Is­lam­ic Stud­ies in Montreal, al­leged au­thor­it­ies searched his laptop for five hours, view­ing at least one doc­u­ment re­lated to his dis­ser­ta­tion. He was then ordered to write down his pass­word and hand over the device. Abidor’s laptop and ex­tern­al drive were re­turned to him 11 days later, after, ac­cord­ing to Abidor, they had been phys­ic­ally opened and vari­ous files on the laptop and ex­tern­al drive had been viewed.

He and fel­low plaintiffs ar­gued that Home­land Se­cur­ity’s policy on bor­der searches of elec­tron­ic devices vi­ol­ates Fourth Amend­ment pro­tec­tions against un­reas­on­able searches and seizures.

On Tues­day, the U.S. Dis­trict Court of the East­ern Dis­trict of New York ruled in a 32-page de­cision that au­thor­it­ies had reas­on­able sus­pi­cion to in­vest­ig­ate due to a com­bin­a­tion of sev­er­al factors, in­clud­ing wi­thold­ing in­form­a­tion about his visas.

Al­though Abidor told of­ficers he was liv­ing in Canada, he held both U.S. and French pass­ports, and ini­tially he did not pro­duce the pass­port con­tain­ing visas from Le­ban­on and Jordan, the opin­ion states. “The agents cer­tainly had reas­on­able sus­pi­cion sup­port­ing fur­ther in­spec­tion of Abidor’s elec­tron­ic devices,” U.S. Dis­trict Judge Ed­ward R. Kor­man wrote in the court de­cision.

The in­cid­ent began at an in­spec­tion point along an Amtrak route from Montreal to New York City. Abidor told an of­ficer that he had briefly lived in Jordan and vis­ited Le­ban­on in the pre­vi­ous year. The of­ficer asked him to turn on the laptop, after which the of­ficer ex­amined cer­tain pic­tures that de­pic­ted ral­lies of Hamas and Hezbol­lah, both of which were des­ig­nated by the State De­part­ment as ter­ror­ist or­gan­iz­a­tions. When Abidor was asked why he was in­ter­ested in these im­ages, he ex­plained that his re­search fo­cused on the mod­ern his­tory of Shiites in Le­ban­on. “Even if this may have ex­plained the pic­tures of Hezbol­lah, it did not ex­plain why Abidor saved the pic­tures of Hamas, a ter­ror­ist or­gan­iz­a­tion not com­posed of Shiites and not based in Le­ban­on,” Kor­man wrote.

The Justice De­part­ment moved to dis­miss the case on the grounds that, ac­cord­ing to a 2004 Su­preme Court de­cision, “searches made at the bor­der, pur­su­ant to the long­stand­ing right of the sov­er­eign to pro­tect it­self by stop­ping and ex­amin­ing per­sons and prop­erty cross­ing in­to this coun­try, are reas­on­able simply by vir­tue of the fact that they oc­cur at the bor­der.”

Quot­ing Mi­chael Cher­toff, who served as DHS sec­ret­ary when the laptop policy took ef­fect, the opin­ion stated, “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. This in­cludes ter­ror­ist ma­ter­i­als and despic­able im­ages of child por­no­graphy.”

Some files in­spec­ted re­vealed in­tim­ate de­tails about Abidor’s life, such as a tran­script of a chat with his girl­friend, cop­ies of email cor­res­pond­ence, class notes, journ­al art­icles, his tax re­turns, and his gradu­ate school tran­script, ac­cord­ing to court doc­u­ments.

The Amer­ic­an Civil Liber­ties Uni­on is con­sid­er­ing ap­peal­ing the rul­ing, Cath­er­ine Crump, an ACLU at­tor­ney who ar­gued the case, said in an email on Tues­day af­ter­noon.

“We’re dis­ap­poin­ted in today’s de­cision, which al­lows the gov­ern­ment to con­duct in­trus­ive searches of Amer­ic­ans’ laptops and oth­er elec­tron­ics at the bor­der without any sus­pi­cion that those devices con­tain evid­ence of wrong­do­ing,” Crump said in a state­ment. “Un­for­tu­nately, these searches are part of a broad­er pat­tern of ag­gress­ive gov­ern­ment sur­veil­lance that col­lects in­form­a­tion on too many in­no­cent people, un­der lax stand­ards, and without ad­equate over­sight.”

DHS and Justice De­part­ment of­fi­cials were un­able to im­me­di­ately com­ment on the rul­ing.

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