US District Court Judge Edward Korman of the US District Court for the Eastern District of New York ruled that US border patrol officers have the legal right to inspect and copy files from travelers’ laptops and other electronic devices without reasonable suspicion of illegal activity.
Korman surmised that because there is “about a 10 in a million chance” that a passenger would have their devices confiscated, “there is not a substantial risk” to their “laptop, cellphone or other device will be searched and seized at the nation’s borders, including at airports and on trains.”
The district judge made clear that “for people whose devices do get searched, the government doesn’t need reasonable suspicion to examine or confiscate them . . . at our borders without probable cause and without a warrant are nonetheless ‘reasonable.’”
Korman wrote: “While it is true that laptops may make overseas work more convenient, 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.”
This decision centers on Pascal Abidor, an American student, who was “ordered to come to the train’s café car for further questioning and searches.”
Abidor was a dual US-French citizen who was obtaining a doctoral degree in Islamic Studies in Cananda, where he was questions by border patrol officers because Abidor had previously traveled to Lebanon.
The authorities forced Abidor to put his user name and password into his laptop.
Once they had access, officers found images of Hamas and Hezbollah which were part of a paper being written by Abidor for classes.
Abidor recalled: “They say things that on their own would be innocent can together become suspicious. I don’t buy that. I didn’t break any laws. I didn’t hide anything.”
Korman claimed that Abidor did not have legal standing because he failed to show “a cause of action for damages based on his claim that he was subject to an unreasonable search.”
Abidor’s dual citizenship was an issue for Korman who stated: “Although Abidor told officers he was living in Canada, he possessed both a U.S. and French passport, Compl. ¶¶ 26, 28, a circumstance which, while perhaps innocent in itself, in combination with other factors may have increased the level of suspicion, especially as the passport containing the visas from Lebanon and Jordan was not produced initially. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (several factors which by themselves are ‘consistent with innocent travel’ may, taken together, “amount to reasonable suspicion”). The agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices.”
Korman’s prediction that since “reasonable suspicion” would have failed in this case, the “plantiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to ‘guarantee’ confidentiality to their sources. The United States border is not the only border that must be crossed by those engaging in international travel. ‘Carrying an electronic device outside the United States almost always entails carrying it into another country, making it subject to search under that country’s laws.’ Surely, Pascal Abidor cannot be so naïve to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah.”