Warning 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,” District Court Judge Edward R. Korman dismissed a challenge to Department of Homeland Security policies allowing searches of electronic devices without reasonable suspicion at the border.  Abidor v. Napolitano, 2013 BL 358534, , No. 1:10-cv-04059-ERK (E.D.N.Y. Dec. 31, 2013).

On May 1, 2010, Pascal Abidor, a graduate student in Islamic Studies at McGill University in Montreal, traveling by train from Canada to the United States was stopped at the Port Champlain port of entry by a Customs and Border Patrol (CBP) officer.   Mr. Abidor presented a U.S. passport and customs declaration form and, upon questioning, told the CBP officer he had lived in Jordan briefly and had visited Lebanon recently.  The visas to these countries were in his French passport, which was in his possession.  The CBP officer removed Mr. Abidor’s laptop from his bag and ordered him to enter his password.  The officer asked him about certain pictures stored on the laptop.  After approximately five hours of inspection and questioning, Mr. Abidor was admitted to the United States without his laptop, which was returned by mail 11 days later.

Mr. Abidor, joined by the National Association of Criminal Defense Lawyers and the National Press Photographers Association, sought a declaratory judgment that CBP and Immigration and Customs Enforcement (ICE) directives allowing agents to inspect, search and detain laptop computers in the course of a border search violates the First and Fourth Amendments of the U.S. Constitution.

Dismissing the plaintiffs’ case for lack of standing, Judge Korman noted that statistically there is less than a five-in-one million chance a U.S. citizen’s computer will be subject to a search at the border and, particularly as to the association-plaintiffs, any future injury is purely speculative and not sufficient for standing.  Although he dismissed on procedural grounds, the judge went on to address the merits.  Citing the Supreme Court’s United States v. Montoya de Hernadez, 473 U.S. 531 (1985), Judge Komen reiterated that border searches are not subject to any requirement of reasonable suspicion or probable cause.  In accord with the U.S. Courts of Appeals for the Third, Fourth, and Ninth Circuits, Judge Komen said a cursory manual search of an electronic device is a border search not requiring reasonable suspicion.  He noted the Ninth Circuit affirmatively held border searches of electronic devices in some circumstances may require reasonable suspicion, United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc).  However, he sidestepped the issue in this case, finding there was reasonable suspicion for a full forensic search of the laptop based on the circumstances and the images found during the initial search.

With widespread use of portable electronic devices containing business, personal and private information, individuals and employers need to be alert to possible disclosure of sensitive data.  International business travelers should consider what steps they should take to protect data from unintended disclosure.