NY Judge Throws Out Photographers' Border Search Constitutional Challenge

Dec 31, 2013 Advocacy

DURHAM, NC (December 31, 2013) – In September 2010 the National Press Photographers Association joined in an important federal lawsuit in a Constitutional challenge of the U.S. Department of Homeland Security's laptop search policy at the border.

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. 

On Friday U.S. District Judge Edward Korman dismissed the suit after it sat in his court for nearly two years. By doing so Korman affirms that he believes the government should be able to search and copy people’s laptops, cell phones, and other devices at border checkpoints without reasonable suspicion. 

"Aside from the injustice of the decision, how long it took the judge – you know the old saying, 'justice delayed is justice denied' – they are giving the government a huge latitude," NPPA general counsel Mickey H. Osterreicher said today. "In our case it's both justice delayed and justice denied."

"We can appeal the decision to the Second Circuit, and maybe – ultimately – to the Supreme Court ... but the parties who brought the suit won't decide that until after the new year," Osterreicher said.

The suit began more than three years ago when Pascal Abidor, a French-American citizen and a passenger on an incoming Amtrak train, had his laptop computer confiscated at the Canadian border. U.S. Government documents show that thousands of innocent American citizens are searched when they return from trips abroad.

NPPA is extremely invested in the case because as photojournalists they believe that searches by the U.S. Immigration Customs and Enforcement and Customs and Border Protection could non only unmask confidential news sources, which is NPPA's First Amendment concern, it could also reveal sensitive professional or personal information.

When the suit was first filed in 2010, NPPA's lawyer Osterreicher said he believed 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."

NPPA and the American Civil Liberties Union, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers filed the suit against the Department of Homeland Security and its then-Secretary Janet Napolitano.

Judge Korman's written decision Friday said that the plaintiffs hadn't shown they suffered injury that gave them standing to bring the suit. He also cited previous rulings finding that the Fourth Amendment right against unreasonable search doesn't apply to the government's efforts to secure international borders from outside threats.

In the written decision, Judge Korman says, "Abidor cannot be so naive to expect that when he crosses into Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah," referring to the president of Syria and leader of Hezbollah.

"What the judge fails to recognize is not Abidor's naïveté but rather our democratic expectation that the Fourth Amendment provides citizens and journalists greater protection from the whims of governmental searches than those found under the tyrannical regimes he cited," Osterreicher said today.

Homeland Security says they have the right to look though the contents of a traveler's electronic devices and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter America, regardless of whether the traveler is suspected of any wrongdoing.

As it was detailed in the federal lawsuit, Abidor was traveling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by customs officers. An Islamic Studies doctoral student at McGill University, he was questioned, taken off the train in handcuffs, and held in a cell for several hours before being released without charge. When his laptop was returned eleven days later there was evidence that many of his personal files had been searched.

Of course when this Constitutional suit was filed in 2010, American citizens and the media and legal groups who joined in this federal lawsuit had no idea of the true depth and extent to which the American government, specifically the National Security Administration, was already involved in spying on U.S. citizens by gathering and mining their telephone records, Internet usage, and personal data.