Judge: Border agents can search laptops, storage media, cellphones

“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 (Hamas is a fundamentalist Sunni group).

The Justice Department asked the judge 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.”

Judge Korman, quoting Michael Chertoff, who served as DHS secretary in 2009 when the border search policy laptop policy was formulated, wrote that “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.”

Court filings by Abidor say that DHS inspected files on his lap top and storage media that had nothing to do with his visits to Jordan and Lebanon. These files contained intimate information, such as transcripts of chats with his girlfriend, emails to and from personal friends, tax returns, school transcripts, and more.

Judge Korman said Abidor’s argument that files stored on his computer and which were not related to his trips to the Middle East should not have been opened and read by DHS agent had no merit.

Abidor, would be “naïve,” the judge wrote, to expect that he was not subject to search when traveling in countries like Jordan and Lebanon. Judge Korman said computer users should expect intrusive searches even on a trip to the United Kingdom, where authorities recently detained David Miranda, the boyfriend of Guardian journalist Glenn Greenwald — who was the first to publish some of Edward Snowden’s leaked NSA documents — and searched his storage devices under a terrorism law there.

“This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas,” Judge Korman wrote.

Judge Korman noted that he agreed with a March opinion in California’s 9th Circuit Court of Appeals which said that “if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”

He found, however, that even “reasonable suspicion” was not yet a necessary standard. In Abidor’s case, he said, the fact that his laptop computer held pictures of members of the extremist groups Hamas and Hezbollah was enough to constitute reasonable suspicion — a lower standard than the probable cause generally required for a warrant to search people’s possessions under the Fourth Amendment.

Judge Korman made a more general comment regarding the use of electronic media by journalists in an age of heightened security concerns. Journalists and photographers, Judge Korman said, have no special standing as opposed to any other Americans who may have their laptops searched at the border.

“While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel,” he wrote.

Catherine Crump, an ACLU attorney who argued the case, said the organizations may appeal the ruling.

“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.”