Federal Judge Rules that Border Patrol Does Not Need Reasonable Suspicion to Confiscate Laptops and Phones

Thursday, January 02, 2014
Judge Edward Korman

The U.S. government can legally seize a person’s laptop, cell phone and other electronic devices without any reason of suspicion along the border, a federal judge ruled this week.


Judge Edward R. Korman in New York made the ruling (pdf) that upheld the Obama administration’s policy while dismissing a lawsuit challenging such seizures.


Korman threw out the case on two grounds: that seizures of personal electronic devices don’t occur often enough to be a concern; and that the government doesn’t need to have reasonable suspicion when it comes to taking away possessions at border checkpoints.


It is important to note that the government’s policy on border seizures covers an area within 100 miles of the actual border.


In his ruling, Korman seemed to trivialize the loss of computers and phones while entering the country.


“While it is true that laptops may make overseas work more convenient,” he wrote, “the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.”


The American Civil Liberties Union (ACLU) brought the lawsuit three years ago on behalf of Pascal Abidor, a graduate student in Islamic studies who was pulled off an Amtrak train crossing from Canada to New York by U.S. border agents. He was locked up, questioned for several hours, and had his laptop held for 11 days.


Korman’s argument that border seizures rarely occur seemed to be based on Customs and Border Protection (CBP) figures showing that agents conduct about 15 device searches a day at American entry points.


But this number may not be reliable or accurate, considering that the Department of Homeland Security (DHS), which oversees the border agency, cited problems with how these incidents are recorded.


A 2011 DHS report noted: “C.B.P.’s system for entering the results of electronic device searches did not allow analysts to accurately identify incidents and seizures related to electronic device search activity, thus hindering C.B.P.’s ability to monitor and evaluate performance and making it difficult to provide accurate operational data concerning searches of electronic devices.”


Catherine Crump, the ACLU attorney who argued the case, said the ruling “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.”


The government’s electronic-device search policy was instigated by the George W. Bush administration in 2008. That policy was retained by the Obama administration the following year.

-Noel Brinkerhoff


To Learn More:

District Judge Upholds Government’s Right to Search Electronics at Border (by Susan Stellin, New York Times)

Court Upholds Willy-Nilly Gadget Searches Along U.S. Border (by David Kravets, Wired)

Pascal Abidor, National Association of Criminal Defense Lawyers, National Press Photographers Association against Janet Napolitano, Alan Bersin, Johon T. Morton: Memorandum & Order (U.S. District Court) (pdf)

Border Agents’ Power to Search Devices Is Facing Increasing Challenges in Court (by Susan Stellin, New York Times)

Illegal Border Activity used by U.S. to Justify Warrantless Searches (by Noel Brinkerhoff, AllGov)

Federal Court Limits Cell Phone and Laptop Searches Near Border (by Matt Bewig, AllGov)

Homeland Security Approves Seizure of Cell Phones and Laptops within 100 Miles of Border; Report Remains Secret (by Matt Bewig, AllGov)


Calm down 10 years ago
Also it's not US Border Agents. Customs and Border Protection Officers would be who stopped the individual in the lawsuit. Border Patrol agents are the guys in green who work in between the US ports of entry. Fine piece of journalism there Lou.
Calm down 10 years ago
This is nothing new, for some reason people don't grasp this. For many many years there has been law known as the border exception. Basically you enter the U.S. the U.S. has a right to know what and who is entering. There is no room for reasonable cause at the border. This is not as some want to believe or say anyone within 100 miles of the border. There is case law to back this up, one must have border nexus. That is only a person who is entering the country. No one can just stop someone within 100 miles of the border they must have crossed. http://en.wikipedia.org/wiki/Border_search_exception
V 10 years ago
This "judge" is nothing more or less, than any other rubber stamp World Government a@@hole that Washington loves to stick its Obama in.
psunami 10 years ago
so what this judge has ruled is that anyone who ventures within 100 miles of the border has automatically forfeited all of their rights. How many people are within that 100 miles every day? what percentage of the u.s. population has this judge just eliminated the U.S. constitution for? What percentage of the land mass is no longer enjoys the freedoms guaranteed by it? I guess the borders need to be redrawn?
DDearborn 10 years ago
Hmmm When a Judge is appointed he swears under oath to uphold the Constitution. Here is what the Constitution specifically and directly says about unwarranted search and seizure. Please take note of the fact that there is no mechanism to waive the requirements and burdens on the government with regard to search and seizure. Here it is and I quote "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Now I am going to take a wild leap of faith here and assume that Judge Korman can actually read. Given that fact the only conclusion any sane rational citizen can make of this ruling is that this man is a treasonous SOB. He should be immediately arrested for said treason. Held without bail until his trial. And then if found guilty he should face the maximum penalty for treason.

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