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Judge Says Border Officials Can Search Your Laptop and Cellphone

Gregory Bull/AP

A federal court on Tuesday upheld a Homeland Security Department policy that allows authorities at border checkpoints to search laptops and other electronic devices belonging to U.S. citizens and foreigners.

A graduate student and several civil liberties groups in 2010 sued the government to stop a 2009 DHS directive authorizing the inspection of any electronic devices travelers carry across an international border into the United States. Pascal Abidor, a 26-year-old student at the McGill University Institute of Islamic Studies in Montreal, alleged authorities searched his laptop for five hours, viewing at least one document related to his dissertation. He was then ordered to write down his password and hand over the device. Abidor’s laptop and external drive were returned to him 11 days later, after, according to Abidor, they had been physically opened and various files on the laptop and external drive had been viewed.

He and fellow plaintiffs argued that Homeland Security's policy on border searches of electronic devices violates Fourth Amendment protections against unreasonable searches and seizures.

On Tuesday, the U.S. District Court of the Eastern District of New York ruled in a 32-page decision that authorities had reasonable suspicion to investigate due to a combination of several factors, including witholding information about his visas.  

Although Abidor told officers he was living in Canada, he held both U.S. and French passports, and initially he did not produce the passport containing visas from Lebanon and Jordan, the opinion states. "The agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices," U.S. District Judge Edward R. Korman wrote in the court decision.

The incident began at an inspection point along an Amtrak route from Montreal to New York City. Abidor told an officer that he had briefly lived in Jordan and visited Lebanon in the previous year. The officer asked him to turn on the laptop, after which the officer examined certain pictures that depicted rallies of Hamas and Hezbollah, both of which were designated by the State Department as terrorist organizations. When Abidor was asked why he was interested in these images, he explained that his research focused on the modern history of Shiites in Lebanon. "Even if this may have explained the pictures of Hezbollah, it did not explain why Abidor saved the pictures of Hamas, a terrorist organization not composed of Shiites and not based in Lebanon," Korman wrote.

The Justice Department moved to dismiss the case on the grounds that, according to a 2004 Supreme Court decision, “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.”

Quoting Michael Chertoff, who served as DHS secretary when the laptop policy took effect, the opinion stated, "Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography."

Some files inspected revealed intimate details about Abidor's life, such as a transcript of a chat with his girlfriend, copies of email correspondence, class notes, journal articles, his tax returns, and his graduate school transcript, according to court documents.

The American Civil Liberties Union is considering appealing the ruling, Catherine Crump, an ACLU attorney who argued the case, said in an email on Tuesday afternoon.

"We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing," Crump said in a statement. "Unfortunately, these searches are part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight."

DHS and Justice Department officials were unable to immediately comment on the ruling. 

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