A federal judge dismissed a lawsuit filed by the American Civil Liberties Union, which challenged the constitutionality of suspicionless searches and seizures of laptops and other electronics at the United States border.
Those challenging the United States government’s policy for border searches of electronics included the National Association of Criminal Defense Lawyers, the National Press Photographers Association and Pascal Abidor, a dual French-American citizen whose laptop was searched and confiscated at the Canadian border.
The ACLU claimed, “While traveling home to New York on an Amtrak train in May 2010, Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos, and chats with his girlfriend, had been searched.”
As described in Reagan-nominated Judge Edward R. Korman’s ruling, a Customs and Border Patrol officer “removed Abidor’s laptop computer from one of his bags, turned it on, and ordered Abidor to enter his password, which he did without objection. The officer inspected the laptop, focusing apparently on certain pictures Abidor had saved that depicted rallies of Hamas and Hezbollah, both of which were designated by the State Department as terrorist organizations.”
Abidor told the officer “his specific area of research for his Ph.D. degree” was “the modern history of Shiites in Lebanon.” That was not a good enough explanation.
Korman found the CBP officer had “reasonable suspicion” to conduct both types of searches being challenged by the ACLU—a “quick look” and a “comprehensive forensic examination.” A “quick look” is a “cursory search” performed manually while a “comprehensive forensic examination” involves an “exhaustive search of a computer’s hard drive.”
He was not convinced that Abidor’s explanation for why he had photos of Hamas was reasonable enough to remove the officer’s suspicion. Hamas, Korman wrote, is a “terrorist organization not composed of Shiites and not based in Lebanon.” Photos of rallies of Hamas and Hezbollah were enough to give CBP “reasonable suspicion.”
The ruling to dismiss the lawsuit featured statistics on how frequently CBP or Immigration and Customs Enforcement officers conduct searches and seizures and how often they are suspicionless. Korman focused on this to make the following argument:
…[D]eclaratory relief is not appropriate because is it 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 comprehensive forensic search would occur without reasonable suspicion. This is particularly true with respect to electronic devices of lawyers and journalists, among others, who have been singled out for special protection. Indeed, Pascal Abidor, the only individual plaintiff in the case, who claims to have had his computer subject to a forensic search upon his entry into the United States from Canada, by his own admission travels frequently between the United States and Canada, was stopped two more times at the border. His was not computer subject to a search of any kind on either occasion. [emphasis added]
This is how state-sanctioned oppression becomes legal. It makes it permissible for government to target dissenters. A judge finds it is improbable that it will happen to more than a few people, and then the low probability excuses the cases where individuals have their privacy violated.
Korman suggested, based on reading agency directives or policies, that CBP and ICE are “sensitive to the privacy and confidentiality issues posed by border searches of electronic devices.”
He also defended the government’s claimed authority to search electronics at the border without reasonable suspicion, noting the agencies may do such searches if “electronic devices contain materials that fall within the jurisdiction of CBP or ICE.”
ACLU attorney Catherine Crump, who argued the case in July 2011, reacted, “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.”
“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,” she added.
Earlier this year, the Ninth Circuit Court of Appeals ruled suspicionless searches do not violate the Fourth Amendment but border patrol agents do need “reasonable suspicion” in order to conduct forensic examinations of a person’s devices. The government agreed to destroy information it obtained from seizing electronics from Private Manning Support Network co-founder David House.
Also, citing the same directives that Korman cited, the Department of Homeland Security issued an “impact assessment” that found, “ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.”
Unfortunately for the ACLU, the judge who decided to dismiss the lawsuit was apparently fond of an op-ed written by former DHS chief Michael Chertoff. He has a consulting group, the Chertoff Group, that profits off of fear of terrorism and government adoption of increasingly authoritarian policies, which narrow the scope of constitutional rights.
Korman’s decision opened with this quote from Chertoff:
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.
Later in the ruling, he also highlighted Chertoff’s belief that “locking in a particular standard for searches would have a dangerous, chilling effect as officer’s often split-second assessments are second guessed.”
When judges are amplifying the voices of profiteers who have committed themselves to being lifelong servants of the national security state, there is not much hope for decisions that will protect a person’s rights.
Photo by Lisa Brewster, used under Creative Commons license