By Donald R. Winslow
© 2010 News Photographer magazine
NEW YORK, NY – Today in a federal lawsuit filed on behalf of the National Press Photographers Association, the American Civil Liberties Union and NPPA joined in a Constitutional challenge of the U.S. Department of Homeland Security's laptop search policy at the border.
Filed this morning in the United States District Court for the Eastern District of New York, NPPA along with the ACLU, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers joined graduate student Pascal Abidor and NPPA member Duane Kerzic as plaintiffs against DHS Secretary Janet Napolitano.
Also named as defendants with Napolitano are Alan Bersin, the Commissioner of U.S. Customs and Border Protection, and John T. Morton, the assistant secretary of Homeland Security for the U.S. Immigration and Customs Enforcement department.
Abidor v. Napolitano is a federal lawsuit that is a constitutional challenge to DHS policies that authorize the suspicionless search, copying, and distribution of the contents of Americans' laptop computers, cell phones, cameras and other electronic devices at the international border.
The case has been assigned to District Court Judge David Trager and magistrate Judge Joan Azrack. The U.S. government now has 60 days to respond to the complaint.
DHS claims it has the right to look through the contents of a traveler's electronic devices and to keep the devices, including making a copy the contents in order to continue searching them once the traveler has been allowed to enter the country, regardless of whether the government has any suspicion of wrongdoing.
Between October 1, 2008 and June 2, 2010, more than 6,500 people – nearly 3,000 of them U.S. citizens – were subjected to a search of their electronic devices as they crossed U.S. borders, the suit asserts. According to information gained by a Freedom Of Information lawsuit, officials "detained" more than 220 electronic devices from similar searches of international travelers, and Customs and Border Protection agents copied and transferred data found on travelers' electronic devices more than 280 times.
Plaintiff Pascal Abidor is a 26-year-old dual French-American citizen and graduate student who had his laptop searched and then confiscated at the Canadian border. A resident of Brooklyn, NY, where his family lives, he is a doctoral student at the Institute of Islamic Studies at McGill University in Montreal, Canada.
Plaintiff Duane Kerzic is a freelance photographer who specializes in travel and landscape photography who's based in Stroudsburg, PA, and has been an NPPA member since 2008.
NPPA and the National Association of Criminal Defense Lawyers joined the ACLU and the plaintiffs in the suit because the organizations believe that the DHS policy violates the First Amendment right to free speech as well as the Fourth Amendment right to be free from unreasonable search and seizure and the constitutional guarantee of privacy.
As a First Amendment concern NPPA's lawyer, Mickey H. Osterreicher, believes that “government officials’ unfettered ability to search journalists' laptops and other electronic devices will have a chilling effect on their ability to gather and disseminate the news once it becomes widely known that any information they gather may be subject to search and seizure without probable cause or reasonable suspicion."
"This will directly impact their ability to provide confidentiality to their sources," Osterreicher said. "One can only imagine the added difficulty, if not impossibility, for journalists to conduct interviews, report on foreign relations or cover stories involving allegations of corruption when news sources believe that the information gathered abroad may be reviewed, copied and shared by agencies of the government without any of the normally guaranteed Constitutional protections."
ACLU lawyers in a statement today said, "Allowing government officials to look through American's most personal materials – the things we store in our laptops, cameras, and cell phones – without reasonable suspicion is unconstitutional and inconsistent with American values, and a waste of limited resources. It doesn't make us 'safer'. Instead it 'builds a bigger haystack' and diverts resources away from proven law enforcement methods."
The suit contends that American do not surrender their free speech and privacy rights when they travel abroad and return home, and that personal information that everyone stores on their electronic devices should not be vulnerable to searches by government officials just because someone has traveled out of the country.
Attorneys who worked on the complaint filed today include Catherine Crump and Melissa Goodman of the ACLU, Christopher Dunn of the NYCLU, Michael Price of NACDL, and Osterreicher for NPPA.
Photographer Kerzic travels for both professional and personal reasons from the United States to Canada and Mexico, and typically carries with him at least one camera, a laptop, and cell phone. His camera contains photographs and on his laptop he has what he describes as a vast amount of personal information including personal and professional material, eMail, his electronic calendar, and financial information along with stories he's written and a history of Web sites he's browsed. His cell phone holds up to 200 text messages that he sends and receives each month.
In July 2007, Kerzic was returning to the United States from a trip to Canada where he'd been photographing lighthouses and national parks for a story. He was riding his motorcycle and his laptop and camera gear were in his saddlebag when he arrived at the Customs and Border Protection inspection point at the Thousand Island border crossing. When agents asked him where he was going and then referred him to secondary screening, he was asked to wait inside a building while his motorcycle and saddlebag remained outside. Kerzic could see CBP agents going through his belongings outside, and in a few minutes a CBP agent came into the building with Kerzic's laptop in his hands.
Since the laptop had not been shut off but was instead in the "hibernate" mode, the agent didn't need Kerzic's password to peruse the contents of the computer. After looking through the photographer's laptop for about 15 minutes, Kerzic was permitted to leave and to enter the United States. He says that as a result of this incident and because of CBP's electronic device search policies, he's changed his password protection settings to ensure that the password is always engaged, even when the computer is in "hibernate" mode, and he plans to continue his travels across the borders multiple times per year to facilitate his livelihood as a photographer.
Plaintiff Abidor's experience with the border search was more extensive, and more chilling. Abidor's laptop was seized and searched May 1, 2010, when he was traveling on Amtrak's train #69 from Montreal to New York City at the end of the school year when he was returning home to visit family. When the train arrived at a Customs and Border Protection inspection point at the border of Quebec and New York, Abidor was carrying his laptop, digital camera, two cells phones, and an external hard drive.
At the inspection point he was approached by a CBP officer and Abidor presented his U.S. passport and customs declaration. The officer asked Abidor where he lives and why, and he answered that he lives in Canada because he is pursuing a graduate degree in Islamic studies. The officer then asked him where he had traveled in the previous year, and he answered that he had been in Jordan and Lebanon and showed the officer his French passport, which contained the visas needed to travel to those two countries. The officer instructed Abidor to follow her to the train's cafe car for further inspection.
At the cafe car there were five or six other officers, and the officer who brought Abidor to the car removed his laptop from its case, turned it on, and instructed Abidor to enter his password, which he did. The suit claims the officer then began looking through the computer's contents, including photographs and documents that pertain to his graduate studies such as photographs from Hamas and Hezbollah rallies that pertain to his doctoral studies of the modern history of Shiites in Lebanon.
Abidor says at this point the officer instructed him to write down his password, which he did, and then he was patted down and handcuffed and told he was being taken off the train. He was placed in detention cell without his belongings and held for about three hours. During additional questioning, the suit says, he was told by officers that he needed to explain the meaning of the contents of his laptop and why he had the material. Abidor says he was also questioned about his parents, his travels, and asked for "his perspective" on the Middle East.
Agents photographed him, finger printed him, and returned him to his cell after questioning, Abidor says, where an agent who said he was with the FBI continued to question him.
After about three hours he was told he would be released, but that his laptop and external hard drive would not be returned to him. Abidor explained to them that he needed access to his devices for his research, and that he was traveling to the UK and France in two weeks for additional research. Agents told Abidor he would be given a receipt for his detained property.
Because it was five hours after he was taken off the train, he had to wait for a bus with an open seat to continue his trip to New York City, where he arrived around midnight. In the following days while trying to get back his laptop and drive, Abidor was told the government could hold his property for up to 30 days. On May 10 lawyers hired by Abidor demanded the return of his laptop and drive in a letter to Customs and Border Protection, and it was returned two days later. Government officials had detained his devices for 11 days.
When the devices were returned there was evidence to suggest the laptop's hard drive had been opened, and the external hard drive was returned with the casing and warranty seal broken open. Today's suit alleges that files on the devices that were opened and examined by officers contained "highly private and expressive materials" that reveal intimate details of Abidor's life, and that the contents of the laptop and drive were copied and distributed to other government agencies, and that the private information is being retained by government agencies.
Because of this, and because of the nature of his research, Abidor has told lawyers that the threat of future search as he travels has caused him to change the way he takes notes and retains records of his information.
“This policy maybe viewed as a needed tool by government agencies in their war on terror, but unfortunately it also has the effect of diminishing the Constitutional freedoms that make this country great,” Osterreicher said. "That is why this is such an important case."