The US District Court for the Eastern District of New York [official website] on Tuesday dismissed [opinion, PDF] a complaint challenging the US government's search of a laptop without reasonable suspicion. The complaint was filed [press release] by the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the National Association of Criminal Defense Lawyers (NACDL) on behalf of dual French-American citizen Pascal Abidor, who had his laptop searched and confiscated at the Canadian border, and the National Press Photographers Association (NPPA) [advocacy websites]. Abidor's laptop was confiscated in May 2010, and when it was returned to him 11 days later there was evidence that his personal files, including intimate conversations and personal photographs, had been searched. The Department of Homeland Security (DHS) [official website] defended the policy of suspicionless searches of laptops by stating that it does not violate the First or Fourth Amendments and that it is necessary for border officers to effectively work without threat of litigation or loss of evidence of crimes. The DHS permits two categories of information to be retained without probable cause: information relating to immigration, customs, and other enforcement matters in compliance with privacy and data protection standards; and any terrorism information encountered in the course of a border search so that it can be shared with the appropriate persons in the federal government. In his opinion, Judge Edward Korman ruled that the plaintiffs lacked standing, and stated that even assuming the allegations in the complaint established standing, closely related principles of declaratory judgment law warranted dismissal. Moreover, declaratory relief was not appropriate because of the unlikelihood that a member of the plaintiffs will have his electronic device searched at the border, and Korman stated that it is far less likely that a comprehensive forensic search would occur without reasonable suspicion. In regards to Abidor's allegations, the court found that the specific circumstances may have warranted reasonable suspicion. An appeal is under consideration.
In March, the US Court of Appeals for the Ninth Circuit ruled in a related case [JURIST report] that in order to conduct a forensic analysis of a laptop the government must have reasonable suspicion of wrongdoing. In June 2011, DHS released [report, PDF] its December 2011 Civil Rights/Civil Liberties Impact Assessment of its electronics search policy, concluding that suspicionless searches do not violate the First or Fourth Amendments. The report was in response to a 2009 ACLU request [text, PDF] under the Freedom of Information Act [official website]. The ACLU also filed a complaint for injunctive relief [complaint, PDF] against DHS policies in 2009, shortly after the policies were revised. DHS policies caused concern among legal scholars, who believe that DHS's laptop search policies have serious Fourth Amendment concerns and that border searches of laptops could be a slippery slope [JURIST op-eds] toward accessing US citizens' electronic records. Warrantless searches of laptops at the border have also been criticized [JURIST report] by former US Sen. Russ Feingold (D-WI), who stated in 2008 that they are an unacceptable invasion of privacy.