“There is no discernable silver lining to this opinion,” ACLU attorney Catherine Clump concluded when a Federal Judge dismissed an ACLU challenge to the Department of Homeland Security’s (“DHS”) discretionary policy of searching and seizing electronic media at the border. The civil liberties organization filed their challenge in the Eastern District of New York on behalf of the National Press Photographers Association, whose members regularly travel with electronic media, and the National Association of Criminal Defense Lawyers, who have an interest in keeping their client’s information confidential. None of the members of either group specifically claimed any injury, which contributed to Judge Korman’s decision that plaintiffs lacked standing. However, Korman also found no standing for Pascal Abidor, a French-American graduate student and the lone individual plaintiff in the suit who had been subjected to a search of his laptop by agents of Customs and Border Patrol (“CBP”). His reasoning was simple: the searches of Abidor during his return travel from Canada left no harm other than the retention of data the agents collected from his media, and the government had only retained that data due to the lawsuit.
Judge Korman saw privacy of files stored electronically as a convenience, not a necessity of modern travel, leaving Mr. Abidor to remark that Judge Korman ‘just seemed so skeptical of the basic premise that people need to travel with devices.’
Judge Korman’s dismissal did not end with his analysis of standing. He also ruled the challenge would be insufficient on its merits even if standing did not moot the issue. Echoing the government’s brief, he relied on the general logic of the SCOTUS holding in Flores-Montano, that “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” but also cited multiple reasons why electronic media required no higher bar than CBP lays out in statute. These included robust protections for lawyers and journalists, the supposed rarity of such seizures in practice and the litigant‘s “foolish” reliance on that electronic media as a secure means for protecting information when traveling abroad.
The last reason struck Mr. Abidor as specifically odd. Judge Korman saw privacy of files stored electronically as a convenience, not a necessity of modern travel, leaving Mr. Abidor to remark that Judge Korman “just seemed so skeptical of the basic premise that people need to travel with devices.” This could be a generational shift in thought. Younger professionals likely fall into the same bias as Abidor: traveling with electronically stored information, to include confidential information, on a notebook, USB jump drive, or an iPhone is essential to professional transactions in the 21st century.
Despite the litigants pessimism from this broadside rebuttal to their challenge, civil libertarians could find a silver lining in a future court split ultimately resolved in their favor. Mounting a similar challenge on behalf of David House, a legal fundraiser for Bradley Manning, the Federal District Court in Boston denied the government’s motion to dismiss before the parties reached a settlement in May of 2013. In addition, the ACLU is considering an appeal on behalf of Mr. Pascal.