Challenge to Directives Allowing Border Laptop Searches Rejected

, New York Law Journal

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Challenges to directives that allow the government to conduct border searches of laptop computers without reasonable suspicion have been rejected by a federal judge.

The National Association of Criminal Defense Lawyers, The National Press Photographers Association and a graduate student whose laptop was searched after crossing the American-Canadian border asserted in Abidor v. Napolitano, 10-cv-04059, that the four-year-old Department of Homeland Security search policies ran afoul of the First and Fourth amendments.

But in a Tuesday grant of the government's dismissal motion, Eastern District Judge Edward Korman (See Profile) ruled the plaintiffs lacked standing and, in any case, failed on the merits.

Korman found that there was only a "remote possibility" of a border search. Moreover, "a careful reading" of the agency directives indicated they were "sensitive to the privacy and confidentiality issues posed by border searches of electronic devices. [The directives] constitute efforts to cabin the nature and extent of such searches, and they contain significant precautionary measures to be taken with respect to the handling of privileged and other sensitive materials."

In August 2009, U.S. Immigrations and Customs Enforcement and U.S. Customs and Border Protection issued directives allowing agents to search electronic devices carried across the border.

The guidelines allow for holding devices and retention of information in some circumstances.

There are provisions for privileged or sensitive information, such as legal materials, medical records, a journalist's work-related information and business and commercial information. Though not given per se exemptions, these types of materials are "subject to special handling procedures," said Korman.

Plaintiff Pascal Abidor, a graduate student at the Institute of Islamic Studies at McGill University crossed the American-Canadian border via train in May 2010 when a Customs and Border Protection officer questioned him.

Abidor told the officer he briefly lived in Jordan and visited Lebanon the previous year.

The officer told Abidor to bring his belongings, including his laptop, to the café car for further inspection. The officer found pictures depicting Hamas and Hezbollah rallies, and Abidor said he was researching modern Shiite history in Lebanon.

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