A federal judge who endorsed “suspicion-less” searches of laptops, cameras and cell phones at the border has set up a possible Supreme Court showdown challenging what critics call “Constitution-free zones” and the Obama administration’s dragnet approach to national security.
A decision by Judge Edward Korman upholding the federal government’s right to search travelers’ electronic devices at or near the border conflicts with a similar ruling in California. That ruling requires a “reasonable suspicion” of criminal activity before agents can confiscate and examine personal photos, laptops and files. Korman’s ruling does not.
“I think Americans are justifiably becoming increasingly surprised and even outraged by the extent to which the national security state seems to be monitoring and collecting information about us all,” said ACLU Attorney Catherine Crump. “We think that having a purely suspicion-less policy is wrong, because it leaves border agents with no standards at all to follow. That opens the door that people will be [targeted] for inappropriate reasons.”
The ACLU originally challenged the administration’s policy, which can be applied anywhere within 100 miles of the border, after U.S. Customs agents stopped student Pascal Abidor on a train traveling from Canada to New York. After noticing Abidor had two passports — not uncommon for journalists and those with dual citizenship — agents asked to see his laptop. Since Abidor was a student of Middle Eastern affairs, his computer contained photos of political rallies held by Hamas and Hezbollah, known terrorist groups.
“I explained to the immigration officer that the reason I had these photos was this was my research,” said Abidor, a U.S. citizen. “I determined they looked at my personal photos and personal chats with my girlfriend. I knew I needed help.”