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