Border searches of electronic devices challenged

Pascal Abidor
CBS News

NEW YORK - When Pascal Abidor rode the train home from Canada to New York last May, a trip he has made dozens of times, he encountered a surprising homeland security detour.

As U.S. Customs and Border Patrol (CBP) agents first questioned passengers in their seats in the Amtrak car, Abidor's travel history seemed to raise a red flag.

Abidor, a 27-year-old American and French citizen and an Islamic Studies graduate student at Montreal's McGill University, has traveled extensively in the Middle East.

"I've been to Egypt. I lived in Jordan. I traveled to Lebanon. And I've also been to Yemen," Abidor told CBS NEWS in an interview in his Brooklyn home.

Agents asked Abidor to accompany him to the café car for secondary screening, where they ordered him to log on his laptop computer.

"Next thing I know, my laptop is being perused. I'm basically being laughed at, and the other officers are being asked, 'Oh, look what he's got,'" Abidor said.

Besides personal photos, Abidor's "My Pictures" folder had propaganda photos of Islamic militants from Hamas and Hezbollah. Abidor says he downloaded them from news sites for research.

"Based on what they saw on the computer, they told me I would have to be taken off the train," Abidor said. "They frisked me. They put me in handcuffs."

Agents took him to the Port of Entry in Champlain, New York, placed him in a jail cell, and interrogated him for three hours.

"Had I ever been to a mosque? They were also curious in what religion or nationality my parents were, and my political beliefs," Abidor recalled. He was scared and asked for Tums. "I thought I was going to go to Guantanamo Bay," he said.

Abidor was released that night and took a bus home, but the government kept his personal computer for 11 days, returning it only after an attorney for the American Civil Liberties Union inquired on his behalf.

It turns out Abidor was one of 11,890 travelers who have had their electronic devices searched at U.S. border crossings - land, sea, and air -- during the past three years.

Embarrassed and infuriated, Abidor asked the ACLU to sue the Department of Homeland Security to stop those searches unless there is a "reasonable suspicion" that someone has broken the law.

The lawsuit, Abidor vs. Napolitano, claims that device searches without reasonable suspicion violate Constitutional rights to privacy and free speech. The National Press Photographers Association (NPAA) and the National Association of Criminal Defense Lawyers (NACDL) joined the suit as plaintiffs.

After the suit was filed last September in Brooklyn federal court, the government sought to have it dismissed. U.S. District Judge Edward Korman heard oral arguments on that motion Friday.

Government attorneys pointed out border agents traditionally have more leeway than police officers to search people and their belongings -- and seize them -- without a warrant. They argued electronic devices are essentially no different than luggage.

"Courts have repeatedly recognized that border searches are reasonable by their very nature," said Justice Department attorney Marcia Sowles.

Sowles said medical prescriptions, handwritten diaries, or hard copies of photos that might be found inside a suitcase are no less personal than information stored on a laptop.

"Just because it's on a computer, it shouldn't be more protected," Sowles said. "To carve out this exception would be creating a giant loophole."

Sowles also said searches of electronic devices are rare. They affect perhaps one in every 60-thousand travelers entering the U.S., according to the latest Department of Homeland Security data provided to CBS NEWS.

Overall, 741 million travelers entered the U.S. since October 2008, according to DHS. The number of people whose devices were searched - nearly 12,000 -- is less than one-percent of the 37 million travelers who were subjected to secondary screenings at the border.

Of those nearly 12,000 people whose devices were searched, only 308 persons' computers, cell phones, and Blackberries were sent to the Immigration and Customs Enforcement forensics lab in Fairfax, Virginia, for further examination. Most frequently the investigations focused on child pornography, but cases also concerned weapons exports, money laundering, drug smuggling, intellectual property rights, and potential ties to terrorism.

Homeland security officials could not say how many searches led to criminal prosecutions.

DHS spokesman Matthew Chandler said in a written statement: "Searches of laptops and other electronic media during secondary inspection are a targeted tool that CBP uses in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country."

Judge Korman pressed ACLU attorney Catherine Crump to explain why electronic devices were any different than confidential materials someone might carry in a suitcase or briefcase.

Crump said the sheer volume of personal information on a laptop was one difference. In addition to his photos, border agents looked at Abidor's letters to his girlfriend, his tax returns, and his class notes. His hard drive was copied and could have been shared with local and international law enforcement agencies.

Crump also said device searches could have a "severe chill on free speech" and the number of people directly affected did not matter when it came to a violation of constitutional rights.

"A violation is a violation," Crump said. "We're asking you to do something that other judges haven't done."

In March, the Ninth Circuit Court of Appeals reiterated "the Government's broad sovereign authority to secure our borders." In United States v. Cotterman, the west coast appeals court found the government "need not make any special showing to justify its search of persons and property at the international border" and that searches do not undermine "an individual's privacy expectation -- even if the individual cannot depart from the border without that property."

In May, The Constitution Project, a Washington-based non-profit, issued a report (PDF) raising concerns about "suspicionless" device searches.

Asa Hutchinson, a former federal prosecutor who was in charge of border security during the Bush Administration, was on the panel.

"If you're going to hold somebody's device for 24 hours, it would appear to me that you would need to have some probable cause in order to continue searching," Hutchinson told CBS NEWS in an interview.

Hutchinson said he believes the current policy is not a good balance between security and privacy.

"We want it not to be the reputation of the United States that if you are business traveler -- leave your laptop at home," he said.

Mickey Osterreicher, NPAA's general counsel, who attended Friday's hearing in Brooklyn, said he was troubled by the ability of government agents to probe photographers' or reporters' laptop media files. "Say you're protecting your source's anonymity and your raw material has voice and image unaltered. What do you do then?" he said.

Pascal Abidor has changed the way he travels. For starters, he deleted all photos from his laptop. Due to the lawsuit, ICE has yet to destroy its copy of his hard drive.

"Anyone should be afraid of the idea that we have no privacy when entering our country," Abidor said. "This is a policy that assumes everyone can be a terrorist, and that seems like a foolish policy."