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    Update: District Judge Upholds Government’s Right to Search Electronics at Border

    To recap: There has been much discussion of the privacy and civil liberties implications of electronic searches and seizures at the US border. In 2008, while I was a visiting scholar at the ACLU’s Technology and Liberty Program, I worked on a project concerning searches and seizures of US citizens’ and their electronic devices by Border Patrol agents far inland from the actual borders. The project found that fully two-thirds of the US population (197.4 million people) live within 100 miles of the country’s borders, where Border Patrol has been assuming broad powers to interrogate US citizens, creating a “Constitution-Free Zone.” Read more about it here. The ACLU represents a plaintiff, Pascal Abidor, who filed a lawsuit in 2010 over electronic searches at the US border. Judge Edward R. Korman of the Federal District Court for the Eastern District of New York recently dismissed — Abidor v Napolitano (10-CV-04059) (Dec. 31, 2013) (archive pdf) — the lawsuit. The New York Times reports:

    The government’s right to search travelers’ electronic devices at the border was upheld in a ruling released by a federal judge on Tuesday, which dismissed a lawsuit challenging this policy.

    In his opinion, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York found that the plaintiffs did not have standing for their lawsuit because such searches occur so rarely that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”

    Even if the plaintiffs did have standing, Judge Korman found that they would lose on the merits of the case, ruling that the government does not need reasonable suspicion to examine or confiscate a traveler’s laptop, cellphone or other device at the border. […]

    The lawsuit was filed in 2010 by Pascal Abidor, a graduate student in Islamic studies, who sued the government after American border agents removed him from an Amtrak train crossing from Canada to New York. He was handcuffed, placed in a cell and questioned for several hours, then his laptop was seized and kept for 11 days.

    The National Association of Criminal Defense Lawyers and the National Press Photographers Association were also plaintiffs in the case, arguing that their members travel with confidential information that should be protected from government scrutiny. […]

    In his opinion, Judge Korman emphasized how infrequently border agents search or detain electronic devices, but it is unclear how accurately the government tracks these statistics.

    According to Customs and Border Protection, the agency conducts about 15 device searches a day at American entry points. But a 2011 assessment of this practice by the Department of Homeland Security, which oversees the border agency, cited problems with how these incidents are counted. […]

    While the courts have generally supported the government’s authority to search travelers at the border, based on the government’s interest in combating crime and terrorism, a decision last year placed some limits on more intrusive device searches.

    In March, the Court of Appeals for the Ninth Circuit in California ruled in United States v. Cotterman that reasonable suspicion of criminal activity was required for a forensic search of a device confiscated at the border — a more extensive exam, as opposed to a cursory look at photos or other files.

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