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Judge Rules U.S. Homeland Security Can Search Laptops at Airports

Jan 01, 2014 6:00 am

Skift Take

How this is not seen as invasive is rather astounding, especially when you consider the time it takes to inspect the trickles and the requests they make of owners to access them — all based on assumptions about guilt.

— Jason Clampet

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A lawsuit challenging government policy on searching laptops at U.S. borders was dismissed by a federal judge who cited past rulings that authorities need not show “reasonable suspicion” when they inspect computers.

U.S. District Judge Robert Korman in Brooklyn, New York, today said that Pascal Abidor, a U.S.-French dual citizen and graduate student who was represented by the American Civil Liberties Union, lacked standing to bring the lawsuit because he didn’t seek damages based on his claim that he was subject to an unreasonable search. Korman also said there was reason for agents to be suspicious of Abidor when an initial search of his laptop turned up photos of rallies by Hamas and Hezbollah as he sought to cross the border from Canada in 2010.

Korman said he agreed with earlier court rulings that found no reasonable suspicion is needed to conduct a cursory manual search of an electronic device at a border. He also concurred with other rulings that said full forensic searches, which could invade privacy, require a different standard.

“If suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required,” Korman said. He said that because of limited resources, full forensic searches are currently limited to to situations where suspicion is present.

The National Association of Criminal Defense Lawyers and the National Press Photographers Association had joined Abidor’s lawsuit. The judge dismissed their claims as well, saying they couldn’t prove imminent or actual injury. The chances that a U.S. citizen’s computer will be searched at a border crossing is less than five in a million, Korman said.



Homeland Security

Abidor brought the case against the U.S. Department of Homeland Security and its secretary, Janet Napolitano, in 2010, saying such seizures violate the constitutional rights to free speech and to protection against improper searches.

Border laptop 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,” ACLU lawyer Catherine Crump said in a statement about today’s ruling.

The court’s decision “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,” she said.

The Supreme Court in 2004 found that the belongings of people entering the U.S. can be searched without “reasonable suspicion, probable cause or warrant,” lawyers for the U.S. said in court filings. Electronics such as laptop computers and mobile phones fall under that rule, the U.S. said.

Abidor, an Islamic studies graduate student at McGill University in Montreal, was taken aside by U.S. officials on a train on his way home to Brooklyn in May 2010.



French Passport

While he told officers he was living in Canada, he possessed a U.S. and a French passport and failed to immediately produce the passport that showed he had recently traveled to Lebanon and Jordan, factors which may have increased suspicion, Korman said.

There was reasonable suspicion for a fuller search of Abidor’s computer after agents found the images of Hamas and Hezbollah on his laptop in an initial search, Korman wrote. Both groups have been designated as foreign terrorist organizations by the U.S State Department.

Abidor told authorities he was working on a doctorate degree on the history of Shiites in Lebanon, potentially explaining the photos of Hezbollah, which is based in Lebanon and influences the Shia community, the judge said. It didn’t explain the pictures of Hamas, a terrorist organization not composed of Shiites and not based in Lebanon, Korman said.

The pictures were downloaded from the Internet as part of his research for his doctoral thesis, Abidor said he told the agents. Abidor said the government didn’t return his laptop, with the sole copy of his graduate work, for 11 days.

The case is Abidor v. Napolitano, 10-cv-04059, U.S. District Court, Eastern District of New York (Brooklyn).



Editors: Peter Blumberg, Charles Carter. To contact the reporter on this story: Tiffany Kary in New York at tkary@bloomberg.net. To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net



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