Challenge to Border Searches of eDevices Fails; Parties Unable to Establish Standing

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

Jan. 2 --The U.S. District Court for the Eastern District of New York Dec. 31 dismissed for lack of standing a challenge under the First and Fourth Amendments to the Department of Homeland Security's electronic device warrantless border search policies (Abidor v. Napolitano, 2013 BL 358534, E.D.N.Y., No. 1:10-cv-04059-ERK, dismissed 12/31/13).

In September 2010, a graduate student, whose laptop was searched at the Canadian border, joined with The National Association of Criminal Defense Lawyers and The National Press Photographers Association to ask the court for declaratory judgment that the DHS policies violated free expression rights and search and seizure warrant requirements (9 PVLR 1279, 9/13/10).

The plaintiffs claimed their free speech was chilled by fear of unreasonable inspection of their electronic devices.

The court said the named individual and the professional association plaintiffs didn't allege the proper level of harm necessary to bring a claim. The court said that the likelihood that the government may conduct suspicionless border searches is so minimal that there was no threat of imminent harm.

DHS Search Rules

In July 2008, DHS released directives that permitted government agents to search and view information on travelers' laptops without any suspicion of wrongdoing about the contents of the electronic device (7 PVLR 1148, 8/4/08).

The policies came on the heels of an April 2008 decision by the U.S. Court of Appeals for the Ninth Circuit that held the intrusiveness of a laptop search is not so great that particularized suspicion is required to render it “reasonable” for Fourth Amendment purposes (7 PVLR 670, 5/5/08).

On Aug. 27, 2009, the Obama administration's DHS issued revised versions of the two policies that tweaked some procedural safeguards for the conduct of warrantless border searches of digital devices, but largely confirmed the Bush administration's approach to border searches of electronic devices (8 PVLR 1261, 9/7/09).

The set of parallel search rules governing the DHS's U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection bureaus contains special provisions regarding the handling of privileged or sensitive materials, including legal materials.

Under the regulations, searches may be conducted without reasonable suspicion that the electronic devices contain prohibited material, the court here said..

Harm Not Immediate

The court agreed with the government's argument that under United States v. Flores-Montano, 541 U.S. 149 (2004), “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.”

The court said that the defendants failed to achieve standing because they didn't demonstrate any immediate threat of harm from the government's implementation of its electronic device border search policies. The number of electronic device searches relative to the number of such devices that pass across U.S. borders is so low that there is no showing of immediate harm, the court said.

It said the student plaintiff might have established standing by adding a cause of action for damages based on his claim, but he instead chose to participate as a co-plaintiff.

The court went on to address the merits of the claim “in order to complete the record and avoid the possibility of an unnecessary remand.”

The court said it agreed with the U.S. Court of Appeals for the Ninth Circuit's holding in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), that reasonable suspicion is not required to conduct a cursory search of an electronic device (12 PVLR 471, 3/18/13).

“I would agree with the Ninth Circuit that, if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required,” the court said.

In the case at hand, images of terrorist group rallies on the student's computer provided reasonable suspicion for the government to conduct further inspection of his electronic devices, the court said.

Arthur Eisenberg of the New York Civil Liberties Union Foundation, in New York, represented the plaintiffs. Marcia K. Sowles of the U.S. Department of Justice, in Washington, represented the government.


Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Abidor_et_al_v_Napolitano_et_al_Docket_No_110cv04059_EDNY_Sept_07/1.