On Friday, July 8, 2011, U.S. District Judge Edward Korman heard oral arguments on a motion to dismiss in the case of Abidor v. Napolitano. The lawsuit, filed by the ACLU on September 10, 2010, in U.S. District Court for the Eastern District of New York on behalf of Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL) and the National Press Photographers Association (NPPA) seeks declaratory and injunctive relief from what are alleged to be unconstitutional government policies.
Specifically the complaint alleges that policies of the Department of Homeland Security (DHS) that â€œauthorize the suspicionless search of the contents of Americansâ€™ laptops, cell phones, cameras and other electronic devices at the international border . . . violates the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny.â€
The lead plaintiff in the case, Pascal Abidor, is a 27-year-old U.S.-French dual citizen, residing in Brooklyn. He is a Ph.D. student at the Institute of Islamic Studies at McGill University in Montreal, Canada. On a train ride home from school in May 2010 he was questioned by agents of the U.S. Customs and Border Patrol (CBP) at the Quebec-New York border crossing. Because he admitted to having traveled in the Mideast agents requested that Mr. Abidor allow them to review the contents of his laptop computer. After he complied and some of the material he had collected had been reviewed he was frisked, handcuffed and taken to a nearby jail cell where he was interrogated. He was released a few hours later without his computer, which the government held for eleven days.
Both the NACDL and the NPPA joined in the suit because their respective members â€“ lawyers and photographers – routinely travel abroad for professional purposes and bring their electronic devices with them. The lawyers often need to gather confidential evidence and information critical to the defense of their clients. Photographers record and collect newsworthy interviews and stories, often promising anonymity to their sources in exchange for their cooperation. Both organizations each had a named member subject to similar searches at the border but also argued that many of their members could be at risk when re-entering the U.S.
Not surprisingly the government moved to dismiss on the grounds that the plaintiffs lacked standing to challenge the policies because they could not demonstrate the likelihood of future harm along with being the specifically subject to the government policy. The government also argued that the policies do not violate either the Fourth Amendment, which protects citizens against unreasonable search and seizure or the First Amendment, protecting free speech.
A long line of cases have held that border and customs agents have broader scope than police officers in searching people and their possessions; as well as to detain and seize them without probable cause, reasonable suspicion or a warrant. During the oral argument Department of Justice Senior Counsel Marcia Sowles argued that electronic devices are essentially no different than luggage or other tangible items. â€œJust because it’s on a computer, it shouldn’t be more protected,â€ she said. â€œTo carve out this exception would be creating a giant loophole.â€
Judge Korman, who seemed to embrace the government argument, repeatedly asked ACLU attorney Catherine Crump to justify why electronic devices should have greater protection than confidential information found in a briefcase or luggage. In requesting that Judge Korman â€œdo something that other judges havenâ€™t done,â€ Ms. Crump asserted that the incredible amount of personal information stored on these devices and used on a daily basis by the public should afford them such increased protection.
Despite those assertions the judge appeared to retain an anachronistic approach to the question and did not seem inclined to distinguish current technology and data storage from searches of papers and other tangible possessions at the border. He also articulated a somewhat flawed analogy when he said that if he didn’t want to go through security when flying domestically he could take another mode of transportation, thus overlooking the fact that all those wishing to return to/enter the U.S. have to go through customs and be subject to search. The judge also expressed the unrealistic view that if people didn’t want the government to search their devices they should travel without them.
Even if it were practical to leave electronic devices at home when traveling abroad some would argue that the press must still return with the materials they have gathered while out of the country. Additionally the judge failed to take notice that digital files are instantly viewable and can be copied easily & quickly whereas film and videotape could not be viewed or copied in the same manner. When asked, the government admitted that they had copied Mr. Abidorâ€™s drive under the pretext of not wanting to corrupt or delete any files, which reinforces the previous point.
A ruling on the motion to dismiss is expected in the next few months. Depending on the basis of the decision either party might appeal. For another story on the subject see: http://www.cbsnews.com/stories/2011/07/09/eveningnews/main20078170.shtml