A federal judge on Friday heard a lawsuit filed by the ACLU, the New York Civil Liberties Union (NYCLU), and the National Association of Criminal Defense Lawyers (NACDL) against the government’s assertion that it has the authority to search, seize and copy laptops, cell phones, cameras and other devices of people at America’s borders even if there is no suspicion of wrongdoing.
District Judge Edward Korman weakly defended a person’s right to not be subjected to unreasonable searches or seizures, suggesting, according to Reuters, “Travelers who want to keep U.S. border agents from seeing sensitive documents on their laptops and cell phones may be better off leaving those devices at home.”
He added, “There are lots of burdens people are subject to in order to protect their security and the security of others.” And, “It may become impossible to conduct such searches if you’re going to set up evidentiary standards.”
Not only does this indicate contempt for the notion of privacy but it also shows an appalling acceptance of warrantless searches of people’s personal property.
The government’s attorney, Marcia Sowles, argued, “Border searches are reasonable by nature, because you’re protecting the borders.” In essence, whatever rights you think you have do not exist at America’s borders.
After maintaining that carrying confidential documents on personal devices was “risky business,” after citing TSA pat-down searches in airports to further justify his deference to power, Judge Korman did not rule on the motion to dismiss.
The case, filed in 2010, deals specifically with an incident that happened on May 1, 2010. Twenty-six year old US-French dual citizen Pascal Abidor, then a graduate student in Islamic Studies at McGill University in Montreal, Canada, boarded an Amtrak train to New York City to visit family. He didn’t realize that he would be refused the right to keep the contents of his electronic devices private and was carrying his laptop, digital camera, two cell phones and an external hard drive.
As the ACLU lawsuit describes, at 11 am, the train reached the inspection point at the border of Quebec and New York. US Customs and Border Protection(CBP) Officer Tulip boarded the train. Abidor gave the officer “his customs declaration and US passport,” explained why he was living in Canada, answered the officer’s question when asked where he had traveled last year (Jordan and Lebanon) and showed his French passport to the officer.
Abidor’s cooperation wasn’t good enough. Officer Tulip directed Abidor to go to “the café car of the train for further inspection.”
In the café car, the officer removed Abidor’s laptop from his bag, turned it on and began to browse the contents. He was asked about personal pictures and images of Hamas and Hezbollah rallies he had for research purposes, as he was writing a paper on the modern history of Shiites in Lebanon for his Ph. D degree.
A few more questions were asked of him before he was patted down by a male officer, who had him put his hands against the wall and then proceeded to apply “a strong amount of pressure to his groin and genitals in various angles.” He was put in handcuffs and carried off the train and put in a detention cell for further questioning.
Abidor was detained for three hours. An FBI agent (also with the CBP) asked him to further explain why he was interested in the modern history of Shiites in Lebanon. Meanwhile, “officers from CBP and/or other government agencies searched through various files on his laptop” and looked at an iMovie Project of his entitled, “My Great Movie” and an Adobe PDF document that contained “citations for his dissertation.”
He was released five hours after being detained at the border. His laptop was not returned. He was not allowed to take his external hard drive with him. The sole copies of his academic work, which he had worked on throughout the past years, were in the possession of government agents. When he told officers he would be traveling to the UK and France to do more research and needed access to the devices, they didn’t care. So, Abidor left, “frightened, disturbed and severely upset” and spent the next ten days struggling to sleep, experiencing panic attacks from the state of anxiety he had plunged into as a result of this incident.
A key reason for opposing any justification for this new claimed government authority to search and seize property without suspicion is that people like Abidor will likely spend the rest of their lives being stopped and harassed at airports. On July 8, 2010, after returning from his research trip in the UK and France, Abidor was pulled aside and asked about what happened last time he was stopped by a CBP officer at the Newark airport. He was asked how he paid for traveling, about his girlfriend, whether he was a Muslim and what languages he spoke, all information that he should not be asked to give unless it can help with a criminal investigation.
This is what has happened with Jacob Appelbaum, who works on the Tor Project and was a volunteer for WikiLeaks. Appelbaum now sends messages on Twitter ahead of his travel to let people know he is looking forward to more harassment.
It’s also what has happened with David House, co-founder of the Bradley Manning Support Network. In November 2010, Department of Homeland Security agents stopped House at O’Hare International airport as he was returning from Mexico.
The agents asked House about his political activities and beliefs. His laptop computer, camera and a USB drive were all seized. The ACLU came to House’s defense, sent a letter to the Department of Homeland Security and managed to get House his seized laptop, camera and USB drive returned to him but not until the government authorities had seven weeks to browse through, copy and share whatever they wanted to from the devices with anyone in any agency in government.
As Salon.com blogger Glenn Greenwald has said, “Without any form of judicial oversight or search warrant,” authorities literally go through and do this routinely. “It’s a form of pure harassment.”
Attorney for the ACLU, Catherine Crump, represented Abidor in court arguing, “lawyers, journalists and other professionals often carry ‘their whole lives’ on their laptops” and the unreasonable searches and seizures can “violate protected professional information, such as the names of news sources or notes from attorney-client meetings.”
I spoke with Crump at a Netroots Nation 2011 conference in Minneapolis, Minnesota in June and this is what she had to say about the government’s new claimed authority to seize laptops: