Ruling Upholds Border Patrol’s Rights to Search Electronics

An association-backed lawsuit against the search and seizure of electronics at border crossings was dismissed this week in a critical ruling. The dismissal conflicts with a recent appeals court decision.

Crossing the border into the U.S. anytime soon? You may want to keep an eye on this case.

This week, Eastern District of New York Judge Edward R. Korman dismissed a lawsuit that questioned U.S. Customs and Border Protection’s authority to search electronic devices at the border, allowing such searches to continue. More details:

About the case: The suit stemmed from the detainment of Pascal Abidor, a Islamic studies graduate student who was held at the U.S. border while aboard an Amtrak train crossing from Canada. Abidor, whose laptop was confiscated for 11 days, sued the government  (opens in a new tab) with the help of the American Civil Liberties Union. The ACLU alleged that data searches of electronic devices are unconstitutional, going beyond what would be allowed for traditional materials. The National Association of Criminal Defense Lawyers and the National Press Photographers Association joined the suit, saying, respectively, that the searches may violate attorney-client privilege and the confidentiality of news sources.

A multi-tiered denial: Korman’s decision  (opens in a new tab) [PDF] to dismiss the case went beyond denying the plaintiffs’ standing to challenge the search. The judge questioned the case on its merits, noting, among other things, existing protections for lawyers and members of the press; the rarity of such seizures; the “foolish” expectation that electronics are a secure mechanism for protecting data taken overseas; and last year’s detainment  (opens in a new tab) of David Miranda, the partner of journalist Glenn Greenwald who was held at London’s Heathrow Airport. Miranda’s case, Korman argued, showed that privacy expectations are lower in other countries. “There’s no silver lining to this decision,” ACLU lawyer Catherine Crump told The New York Times  (opens in a new tab). “It’s not just that we lost the case. It’s that the judge decided against us on multiple alternative grounds.”

The reaction: The ACLU is considering an appeal  (opens in a new tab), a step the NPPA encouraged in a statement. The photographers’ group raised concerns about the nearly two-year wait for Korman’s ruling. “Aside from the injustice of the decision, how long it took the judge—you know the old saying, ‘justice delayed is justice denied’—they are giving the government a huge latitude,” NPPA’s general counsel, Mickey H. Osterreicher, said  (opens in a new tab). “In our case it’s both justice delayed and justice denied.”

Another case to watch: Korman’s decision applies only to Abidor’s case, but an appeals court decision last year could take the issue to the U.S. Supreme Court  (opens in a new tab). The Ninth Circuit’s ruling  (opens in a new tab) in United States v. Cotterman last March limited the government’s authority to search electronic devices at the border, holding that suspicion of criminal activity is required before deep forensic searches may be conducted.