JUDGE UPHOLDS GOVERNMENT'S RIGHT TO SEARCH ELECTRONIC DEVICES AT BORDER

c.2014 New York Times News Service

The government’s right to search travelers’ electronic devices at the border was upheld in a ruling released Tuesday by a federal judge who dismissed a lawsuit challenging this policy.

In his opinion, Judge Edward R. Korman of the Eastern District of New York found that the plaintiffs did not have standing for their lawsuit because such searches occur so rarely that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”

Even if the plaintiffs did have standing, Korman found, 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, cellphone or other device at the border.

“There’s no silver lining to this decision,” said Catherine Crump, a lawyer for the American Civil Liberties Union, which represented the plaintiffs. “It’s not just that we lost the case. It’s that the judge decided against us on multiple alternative grounds.”

The lawsuit was filed in 2010 by Pascal Abidor, a graduate student in Islamic studies, who sued the government after U.S. border agents removed him from an Amtrak train crossing from Canada to New York. He was handcuffed, placed in a cell and questioned for several hours, then his laptop was seized and kept for 11 days.

The National Association of Criminal Defense Lawyers and the National Press Photographers Association were also plaintiffs in the case, arguing that their members travel with confidential information that should be protected from government scrutiny.

In rejecting this argument, Korman cited the rarity of electronic device searches and questioned whether travelers need to carry computers containing sensitive data when they travel abroad.

“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.”

Abidor said he was disappointed but not entirely surprised by the ruling.

“I can’t say it wasn’t foreseeable based on the line of questioning by the judge during the initial hearing,” Abidor said. “He just seemed so skeptical of the basic premise that people need to travel with devices.”

“These checks are essential to enforcing the law and protecting national security and public safety,” Peter Boogaard, a spokesman for the Department of Homeland Security, said in a statement, “always with the shared goals of protecting the American people while respecting civil rights and civil liberties.”

In his opinion, Korman emphasized how infrequently border agents search or detain electronic devices, but it is unclear how accurately the government tracks these statistics.

According to Customs and Border Protection, the agency conducts about 15 device searches a day at U.S. entry points. But a 2011 assessment of this practice by the Department of Homeland Security, which oversees the border agency, cited problems with how these incidents are counted.

The report noted: “CBP’s system for entering the results of electronic device searches did not allow analysts to accurately identify incidents and seizures related to electronic device search activity, thus hindering CBP’s ability to monitor and evaluate performance and making it difficult to provide accurate operational data concerning searches of electronic devices.”

While the courts have generally supported the government’s authority to search travelers at the border, based on the government’s interest in combating crime and terrorism, a decision in 2013 placed some limits on more intrusive device searches.

The 9th U.S. Circuit Court of Appeals in California ruled in United States v. Cotterman that reasonable suspicion of criminal activity was required for a forensic search of a device confiscated at the border — a more extensive exam, as opposed to a cursory look at photos or other files.

That decision applies to states covered by the 9th Circuit, including California, Washington, Oregon, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii. Korman’s ruling will not have as much of an impact, since it comes from a district court rather than a circuit court.

“It maintains the status quo, which is that the government is free everywhere except in the 9th Circuit to conduct all types of electronic device searches without reasonable suspicion,” Crump from the ACLU said. “We are considering an appeal, but we haven’t made a decision one way or the other yet.”