by Peter Quinter, guest columnist
I have been writing for years about US court decisions regarding the inspection of the contents of laptops, mobile phones, and other digital devices by officers of US Customs and Border Protection (CBP), US Department of Homeland Security (DHS).
CBP has long maintained that there is a “border search exception” to Fourth Amendment prohibitions against unreasonable searches and seizures by the government – and, for the most part, the US courts, up to and including the Supreme Court, have agreed.
On New Year’s Eve, 2013, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York upheld the right of CBP and Immigration and Customs Enforcement (ICE) officers “to stop, detain, conduct a brief examination, take from the owner/traveler for further examination, and thereafter conduct a forensic, comprehensive examination of the contents of the digital device, including copying all its contents, and sharing those contents with other Federal agencies” without reasonable suspicion.
Here are the facts of Pascal Abidor, National Association of Criminal Defense Lawyers, National Press Photographers Association v. Janet Napolitano, Alan Bersin, John T. Morton [Case No. 1:10-cv-04059-ERK]:
Pascal Abidor was on an Amtrak train that crossed into the US from Canada at Port Champlain. A CBP officer examined Abidor’s customs declaration and US passport. Abidor told the officer that he had briefly lived in Jordan and recently visited Lebanon. The CBP officer demanded to view the contents of Abidor’s laptop, and discovered pictures of rallies of Hamas and Hezbollah, both designated terrorist organizations by the US Department of State. Abidor explained that he was a student in the Institute of Islamic Studies at McGill University in Montreal, and that his specific area of Ph.D. research is the modern history of Lebanon’s Shiites. Abidor was detained and questioned by CBP for five hours before being released. His laptop was retained for further inspection, and returned to him 11 days later by CBP by mail.
Abidor was joined in his suit against the government by the National Association of Criminal Defense Lawyers and National Press Photographers Association, who argued that their members’ electronic devices contain privileged and confidential information that should be protected from government scrutiny.
In his decision Judge Korman stated: “[A] careful reading of the CBP and ICE directives indicates that these agencies are sensitive to the privacy and confidentiality issues posed by border searches of electronic devices … [D]eclaratory relief is not appropriate because it is 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.”
Judge Korman cited the US Supreme Court case of United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985), which stated, in relevant part:
“Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause.”
Judge Korman also cited cases in the Third and Fourth Circuit Courts of Appeals that concluded that searches of electronic devices constitute routine border searches. Further, while stating that the two associations did not have standing to request declaratory relief, and that there was no requirement for the government to establish reasonable suspicion, Judge Korman added: “The agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices.” Based on these multiple findings, he dismissed the case.
In my opinion, we have not heard the last word about what is and is not an unreasonable search by CBP officials at the border. The law is always being interpreted and is always changing. Judges and lawyers have a responsibility to protect the people from the world described in George Orwell’s 1984.
If you have questions about searches by US CBP or DHS officers, please post your comments below or contact me directly at [email protected] or (954) 270-1864.
Copyright © 2014 GrayRobinson
This column is based on material that originally appeared in the GrayRobinson Customs and International Law Blog, which is edited by Peter Quinter and covers a range of legal and regulatory issues related to trade. Subscribe at http://www.grcustomslaw.com/
About Peter Quinter
The Datamyne Blog’s legal contributor is a shareholder in GrayRobinson’s Miami and Ft. Lauderdale offices, and chair of the firm’s Customs & International Trade Law Group. Appointed by the Secretary of Commerce to the Florida District Export Council, Quinter is a recognized expert in international and trade law, and has been listed in “Best Lawyers in America” in the area of FDA Law each year since 2009. Learn more about GrayRobinson here; learn more about Peter Quinter here.
The opinions expressed in this article are those of its author and do not purport to reflect the opinions or views or Descartes Datamyne. In addition, this article is for general information purposes only and it’s not intended to provide legal advice or opinions of any kind and my not be used for professional or commercial purposes. No one should act, or refrain from acting, based solely on this article without first seeking appropriate legal or other professional advice.