The American Civil Liberties Union is considering an appeal after a federal judge threw out a lawsuit that tried to stop America’s port inspectors from seizing laptops at the nation’s borders without good reason to do so.
The case involved the laptop of an Islamic Studies scholar crossing into the U.S. from Canada. U.S. Customs and Border Protection inspectors seized his laptop in 2010 and conducted a deep search, what is called a forensic search, of all his files after a casual search turned up file photos of terrorist groups like Hezbollah and Hamas. In his ruling, U.S. District Court for Brooklyn Judge Edward Korman said forensic searches are unlikely to happen and so, a special rule for them is unnecessary. That contradicts a higher appeals court’s ruling last year but that only applies to some western states.
Korman wrote, "I would agree with the Ninth Circuit that, if suspicionless forensic searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required."
He also agreed with former Homeland Security Sec. Michael Chertoff's initial argument that, "locking in a particular standard for searches would have a dangerous, chilling effect as officer's (sic) often split-second assessments are second guessed."
The lawsuit included plaintiffs like the National Press Photographers Association and the National Association of Criminal Defense Lawyers, both of whom argued that they needed protection against revealing information about confidential sources stored on their laptops.
Korman responded, "Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will 'guarantee' confidentiality to their sources."
Instead, he suggested what he called a "commonsense" strategy of not carrying one's most sensitive information on their laptop when traveling.
The district court is below the Ninth Circuit, but the Ninth's jurisdiction ends with the western part of the country. ACLU lawyer Catherine Crump said this effectively creates two standards to use by the same law enforcement agency in two parts of the country. In the Ninth Circuit's jurisdiction, the west, CBP inspectors must have reasonable suspicion to conduct a forensic search. That doesn't apply to the rest of the nation.
"At some point, the Supreme Court may well be called upon to resolve this matter and decide so there is a uniform standard across the country," Crump said.
In about two weeks, the Supreme Court is expected to decide whether it will hear yet another case on laptop seizures.