Late in December, a McGill student involved in a years-long constitutional battle with the U.S. government saw the dismissal of his lawsuit challenging the government’s right to search electronic devices at its borders. The decision dismissed the case on both standing and merit, while raising debate about post-9/11 homeland security policies and the extent of reasonable suspicion when conducting searches at the border.
Pascal Abidor, a doctoral student in Islamic Studies at McGill, was riding an Amtrak train from Montreal to New York in May 2010 when border agents removed him from the train, handcuffed and questioned him in a holding facility, and confiscated his laptop for 11 days. A dual French-American citizen, Abidor found himself singled out by border agents due to his earlier travels to Jordan and Lebanon recorded in his French passport, which culminated in a preliminary search of his laptop on the train and its later confiscation.
Soon after the incident, Abidor worked with the American Civil Liberties Union (ACLU) to file a complaint, and later a lawsuit, against the Department of Homeland Security. The plaintiffs, which included Abidor, the National Association of Criminal Defense Lawyers, and the National Press Photographers Association, sought to challenge the Department of Homeland Security’s (DHS) suspicionless search policy, which allows for the search and seizure of travellers’ personal belongings, including laptops and other electronic devices.
The ACLU argued that such searches were illegal under the first and fourth amendments.
“This is part of a broader pattern of aggressive government surveillance to collect information on too many innocent people under lax standards, and without adequate oversight,” said Brian Hauss, a legal fellow at ACLU who spoke with The Daily regarding the case.
The judge, Edward R. Korman of the Federal District Court for the Eastern District of New York, dismissed the lawsuit on the grounds that the plaintiffs did not have standing for the lawsuit – due to the lack of “substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”
According to DHS data, device searches, at present, stand at about 15 searches a day.
“My immediate reaction was [… ] New York just had the lowest crime rate in 50 years, so are they going to just stop prosecuting murders, because they don’t happen often?” Abidor told The Daily, referencing the judge’s grounds for dismissal.
“In terms of our rights, quantity and quality are equal,” he continued. “When someone’s rights are violated, all of our rights are violated.”
As the government did not break any laws, the plaintiffs’ standing in the case was very unlikely to be decided upon.
“If the government looks at your stuff and decides that it doesn’t want to prosecute you, and it just invades your privacy and has not found any evidence of wrongdoing, there’s basically nothing you can do, under this judge’s interpretation,” said Hauss. “It’s like, ‘tough luck.’”
Aside from the plaintiffs’ standing in the case, the primary reason behind the case’s dismissal, the judge also questioned the case’s merits, writing that reasonable suspicion need not be required for routine electronic device searches at borders, as it would be within the U.S. interior.
“Effectively, we think that the judge’s ruling, in this case, makes the border a constitution-free zone,” said Hauss.
Aside from the other grounds on which the judge dismissed the lawsuit, the judge also questioned the necessity of bringing a laptop when travelling.
“As a human being today, it is not plausible [to travel without a laptop],” Abidor said. “He said I don’t have to travel with a laptop, which by extension is… I don’t have to be in school? […] I made a choice to study outside of my country, so that choice makes me susceptible to having my rights violated?”
After the recent decision, the ACLU is still waiting on its decision to appeal the case, which would go to the Court of Appeals.