US judge dismisses ACLU challenge to border laptop searches

In its suit, the American Civil Liberties Union had argued that having border officials search the contents of a laptop violated the U.S Constitution unless the officials had a reasonable suspicion that the contents related to a crime. Judge Edward Korman of the U.S. District Court for the Eastern District of New York, in Brooklyn, disagreed and threw out the suit. The ACLU said an appeal is being considered.

“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,” ACLU attorney Catherine Crump said. Crump argued the case in 2011.

The American Civil Liberties Union (ACLU) filed the suit on behalf of Pascal Abidor, a student with dual French and U.S. citizenship, and of the National Association of Criminal Defense Lawyers and the National Press Photographers Association. In 2010, customs officials confiscated Abidor’s laptop as he entered the country from Canada on a train trip from Montreal to New York. They searched the computer while detaining Abidor for several hours, then released him without charges.

Abidor, who said he was studying the modern history of Shiites in Lebanon, had downloaded photos of the militant groups Hamas and Hezbollah on his computer. He let CBP conduct the search and provided his computer password. The government searched private material, including messages between Abidor and his girlfriend, and kept his data for further searches after giving back his laptop, the suit alleged.

Such searches are a particular concern for defense lawyers and journalists because they rely on the confidentiality of information to represent clients and to protect sources, the suit said.

In dismissing the suit, Judge Korman said CBP already has special procedures for those types of privileged content that require a show of suspicion. Border searches of electronic devices are rare, and many of them already are done with a show of reasonable suspicion, Judge Korman said.

“In sum, declaratory relief is not appropriate because it is unlikely that a member of the association plaintiffs will have his electronic device searched at the border, and it is far less likely that a forensic search would occur without reasonable suspicion,” Korman said.

The suit had alleged 6,500 people’s electronic devices were searched at U.S. borders between October 2008 and June 2010, out of 1.1 million people processed daily, according to CBP. “Stated another way, there is less than a one in a million chance that a computer carried by an inbound international traveler will be detained,” Korman said.

Korman also said border crossings are a special case for search protections because travellers can decide when and where they cross borders and what they are carrying when they do.