Border Search of Devices; Restitution and Forfeiture

, New York Law Journal

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Harvey M. Stone and Richard H. Dolan
Harvey M. Stone and Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Edward R. Korman declined to invalidate directives relating to the search and detention of laptop computers at border crossings. Judge Jack B. Weinstein dismissed a variety of claims against an "assisted living facility" that allegedly misrepresented the date of its licensing. Judge Frederic Block imposed restitution and forfeiture as concurrent penalties in a criminal case. And Judge Allyne R. Ross dealt with issues of collateral estoppel in a RICO case in light of a prior acquittal on related charges.

Border Search—Laptops

In Abidor v. Napolitano, 10 CV 04059 (EDNY, Dec. 31, 2013), Judge Korman granted a motion to dismiss a challenge to regulations adopted by the Department of Homeland Security (DHS) authorizing agents to inspect the electronic devices, including laptop computers, of travelers entering the United States.

In August 2009, U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), components of DHS, issued directives allowing agents at border crossings to inspect files stored on electronic devices, to search and detain the devices for a reasonable time, and to copy stored information. These steps may be taken without reasonable suspicion of unlawful activity.

Plaintiffs—one Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL), and the National Press Photographers Association (NPPA)—sought a declaratory judgment that the directives violate the First and Fourth Amendments, and an injunction blocking defendants from searching and detaining electronic devices at the border without reasonable suspicion. Plaintiffs also challenged the directives as applied to the search and detention of Abidor's laptop when he crossed the Canadian border.

The directives regulate and circumscribe the conduct of the searches. For instance, they seek to impose reasonable limits on how long devices can be detained, the CBP directives require supervisory approval in certain circumstances to retain a device or information from it, and the directives of both agencies have special provisions relating to privileged or other sensitive information, such as legal materials, medical records, and materials carried by journalists.

Abidor was a 26-year-old graduate student in Islamic studies at McGill University. He told a CBP officer inspecting his customs declarations that he had lived briefly in Jordan and visited Lebanon the previous year. His visas to those two countries were contained not in his U.S. passport, but in a French passport that he was also carrying. The officer turned on Abidor's laptop and saw photos depicting rallies of Hamas and Hezbollah, both designated by the State Department as terrorist organizations. Abidor explained that he was researching the modern history of Shiites in Lebanon. This did not explain why he saved the pictures of Hamas, a terrorist organization not composed of Shiites or based in Lebanon.

Abidor alleged that his laptop was searched during the five hours of his detention. The laptop was then retained by CBP for further inspection. His laptop and external drive were returned to him 11 days later by mail.

Abidor claimed that he now "self-censors" the information stored on his computer. The NACDC and NPPA claimed that the specter of laptop searches interfered in various ways with their work.

The complaint challenged both "quick look" searches of computers and "comprehensive forensic examinations" of computer hard drives.

To establish standing, plaintiffs had to show an actual or imminent or "certainly impending" injury, not one that is "conjectural or hypothetical." Here, there was not even a "substantial risk" that their computers would be subject to a search or seizure without reasonable suspicion. The available statistics show "less than a one in a million chance that a computer carried by an international traveler will be detained." Even including "quick looks," there is "less than a five in a million chance that their computer will be subject to any kind of search." Slip op. 14.

Korman agreed with the U.S. Court of Appeals for the Ninth Circuit that, as a matter of "common sense" and limited government resources, full forensic searches will take place "only when reasonable suspicion is aroused." United States v. Cotterman, 709 F.3d 952, 967 n. 14 (9th Cir. 2013). The search there—and Abidor's—were both based on reasonable suspicion. Slip op. 15. A potential widespread dragnet would be "troublesome," Cotterman, 709 F.3d at 966, but such a speculative development is not a basis for standing.

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