- 2:59 PM
A federal judge today upheld a President Barack Obama administration policy allowing authorities along the U.S. border to seize and search laptops, smartphones and other electronic devices for any reason.
The decision (.pdf) by U.S. District Judge Edward Korman in New York comes as laptops, and now smartphones, have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects.
The American Civil Liberties Union brought the challenge nearly three years ago, claiming U.S. border officials should have reasonable suspicion to search gadgets along the border because of the data they store. But Judge Korman said the so-called “border exemption,” in which people can be searched for no reason at all along the border, continues to apply in the digital age.
Alarmingly, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.
The judge said it “would be foolish, if not irresponsible” to store sensitive information on electronic devices while traveling internationally.
Laptops have only come into widespread use in the twenty-first century. Prior to that time, lawyers, photographers, and scholars managed to travel overseas and consult with clients, take photographs, and conduct scholarly research. No one ever suggested the possibility of a border search had a chilling effect on his or her First Amendment rights. While it is true that laptops may make overseas work more convenient, 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.The ACLU said it was mulling an appeal.
“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,” said Catherine Crump, the American Civil Liberties Union attorney who argued the case in July 2011. “Suspicionless searches of devices containing vast amounts of personal information cannot meet the standard set by the Fourth Amendment, which prohibits unreasonable searches and seizures. 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.”
The case was brought on behalf of 29-year-old Pascal Abidor, whose laptop was seized for 11 as he was traveling by rail from Canada to his parents’ New York residence in 2010. He was an Islamic studies graduate student in Canada.
At an Amtrak inspection point, he showed his U.S. passport to an agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.
Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained to the agent that he was earning a doctoral degree in the modern history of Shiites in Lebanon.
He was handcuffed and then jailed for three hours while the authorities looked through his computer, according to the suit. Numerous agents questioned him, the suit says.
They released him and kept his laptop, until his lawyer complained.
Plaintiffs in the suit also include the National Association of Criminal Defense Lawyers and the National Press Photographers Association. The lawyers’ group maintains search policy exposes privileged communications. The photographers say the policy interferes “with their ability to do their work.”
The decision supports a conclusion 10 months ago from the Department of Homeland Security’s civil rights watchdog that said that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.
The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.