The U.S. District Judge Edward Korman granted a government motion to dismiss a lawsuit filed by civil rights attorneys who claimed it would be unconstitutional for U.S. border agents to search laptop computers carried by news photographers and other travelers at international border crossings without reasonable suspicion.
Korman found that the plaintiffs hadn’t shown they suffered injury that gave them standing to bring the suit. He also cited previous rulings finding that the Fourth Amendment constitutional right against unreasonable searches doesn’t apply to the government’s efforts to secure international borders from outside threats.
The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers had filed the suit on behalf of the National Press Photographers Association, criminal defense lawyers and a college student: Pascal Abidor, a French American citizen attending McGill University in Montreal whole laptop computer was confiscated at the Canadian border.
In a statement, an ACLU attorney said the organization was considering an appeal.
“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,” said the lawyer, Catherine Crump.
The decision on Tuesday took sharp aim at claims by the photographers and the others that searches by the U.S. Immigration Customs and Enforcement and Customs and Border Protection could unmask confidential news sources or reveal sensitive professional or personal information. Abidor alleged that an inspection of a computer containing research he’d done abroad on the modern history of Shias “had an extreme chilling effect on my work, studies and private life.”
Abidor “cannot be so naive to expect that when he crosses into 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,” the judge said, referring to the president of Syria and the leader of Hezbollah.
The ACLU has charged that government officials take advantage of a suspicionless “back door” to search devices at the border. In September, the federal government released files as part of a lawsuit settlement showing that a supporter of WikiLeaks source Chelsea Manning was targeted for search at the border.
Judge Korman said he agreed with a March opinion in California’s 9th Circuit Court of Appeals that said “if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.” But he found that even “reasonable suspicion” wasn’t yet a necessary standard. In Abidor’s case, he said, the fact that his laptop computer held pictures of members of the extremist groups Hamas and Hezbollah was enough to constitute reasonable suspicion — a lower standard than the probable cause generally required for a warrant to search people’s possessions under the Fourth Amendment.
Journalists and photographers, Korman added, have no special standing as opposed to any other Americans who may have their laptops searched at the border.
“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,” he wrote.
