Wednesday, January 08, 2014

Border Search Update

Remember my post on U.S. v. Cotterman? You should read that as background. Also, remember that I am speaking at the Georgetown ITU again this year. For that talk, I have been reading up on the state of litigation involving Customs and Border Protection's searches of digital media. Below is a portion of what I prepared for Georgetown. You'll have to register to attend to get everything.

In an effort to mount a broader challenge to Customs’ policies regarding border searches of digital media, the National Association of Criminal Defense Lawyers, the National Press Photographers Associations and an individual named Pascal Abidor brought a case in the Eastern District of New York seeking a declaratory judgment that border searches of digital media without particularized suspicion of criminal activity are unconstitutional violations of both the First and Fourth Amendments. See, Abidor, et al. v. Napolitano, et al., Court No. 10-CV-04059 (Slip Op. Dec. 31, 2013). 

Abidor, a graduate student of Islamic Studies at McGill University in Montreal, entered the United States via Amtrak and was subjected to Customs inspection near Champlain, NY. Abidor presented a U.S. passport and reported to Customs and Border Protection that he had lived briefly in Jordan and visited Lebanon. His passport did not contain a visa for either of those countries. Abidor subsequently produced a French passport, which did contain those visas. The Customs Officer then inspected his computer and found images of rallies for Hamas and Hezbollah, both of which are designated by the U.S. as terrorist organizations. The Officer then instructed Abidor to write down his computer password. His computer was searched for approximately five hours. His cell phone and an external drive were returned to him with evidence that they have been physically opened (or attempted to be opened).

Prior to reaching the merits of the case, the Court had to determine whether the plaintiffs had standing to bring the action. In particular, whether there was a threatened injury that was certainly impending enough to constitute an injury in fact rather than a mere allegation of some possible future injury. Id. at 12. On this question, the Court noted that the likelihood of an individual having an electronic device detained by Customs is miniscule. Based on passenger processing data from Customs, the Court found that fewer than one in a million electronic devices entering the U.S. is detained by Customs. Including situations in which Customs undertakes a “quick look” at the electronic media during the border clearance process, fewer than five in a million devices are subject to search.

The Court categorized the risk to the association plaintiffs as a purely speculative increased risk of injury. That, according to the Court, did not satisfy the requirement for actual or imminent injury. Given that declaratory judgment is a matter of judicial discretion, the Court felt it needed to strike a balance with public policy and should be reluctant to overturn a governmental policy. That decision gives Congress and the agencies involved an opportunity to monitor and modify policies if abuses arise. Finally, the Court reviewed the relevant CBP and ICE policies and found that they contain significant safeguards to protect privacy and privilege. As a result, the Court held that declaratory relief is not appropriate with respect to the two association plaintiffs.

Abidor, on the other hand, claimed an ongoing injury in that CBP allegedly still had copies of his data. According to the Court, Abidor may have an action for damages. However, because the action sought declaratory judgment and an injunction against future action, he is in no better position to bring this case than the organizations. Thus, none of the plaintiffs have standing.

Despite that holding, the Court addressed the merits to avoid a remand from the Second Circuit should that Court disagree. Initially, the Court stated its agreement with Cotterman that the extended border search doctrine is not applicable and that reasonable suspicion is not necessary for a search that occurs at the border. That left only open the question as: was particularized suspicion necessary for the border search of Abidor’s electronic devices? On that score, the Court reasoned that the relatively few searches that occur and the limited resources available to Customs mean that border searches really only occur when there is some level of suspicion on the part of the Customs Officer. Given Abidor’s travels, photos of Hama and Hezbollah rallies, and the second passport, the Court that there was a reasonable basis on which to proceed with the detailed forensic review of Abidor’s electronics.

While the Ninth Circuit decision in Cotterman announces a new rule, Abidor does not. Under Cotterman, the secondary forensic examination of electronic data requires that Customs have particularized suspicion that the data includes evidence of criminal activity. Abidor does not go that far. Rather, Abidor leaves Customs with the ability to make forensic examinations of data without particularized suspicion. But, Abidor is based on a carefully stated set of premises including that data exams by Customs remain relatively rare and will usually be supported by some level of suspicion. Thus, the Abidor decision appears to put Customs and Border Protection on notice that it does not have an unlimited ability to search electronic storage media at the border and, given a change in circumstances, doing so might violate the First and Fourth Amendment rights of individuals. Should the Second Circuit follow suit, creating a conflict between the Second and Ninth Circuit, the issue will be nicely teed up for Supreme Court review.

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