Pascal Abidor, a McGill Islamic Studies PhD student and American citizen, is suing the U.S. Department of Homeland Security (DHS) after being detained at the U.S. border and having his laptop held for 11 days in May.
Abidor’s arrest and the seizure of his laptop were prompted by a DHS policy that allows the search and seizure of personal electronic devices without reasonable suspicion.
The lawsuit argues a violation of Abidor’s 1st and 4th Amendment rights under the U.S. constitution, and is a potentially landmark case in defining the relationship between individual privacy and national security.
Railroaded on Amtrak
Abidor left Montreal May 1 on an Amtrak train bound for New York, intending to visit his family. At the American border, a U.S. Customs and Border Protection (CBP) official boarded the train and began questioning him. As an American and French citizen studying in Canada, Abidor informed her that he was pursuing a PhD in Islamic Studies.
After speaking with him about his studies and travel history and looking at his passports, the officer asked Abidor to move with her to another compartment of the train, where she took out and turned on his laptop, ordering him to provide his password.
After going through photographs that Abidor had downloaded from the internet, including ones of Hamas and Hezbollah rallies, the officer took him off the train. He was frisked and handcuffed, and placed in a detention cell at the port of entry in Champlain, NY. Before being released three hours later, he was questioned by CBP and FBI officials. When he was allowed to go, he was told that his laptop and external hard drive would remain in custody.
Upon his arrival in New York City, Abidor tried several times to contact the seized property office back in Champlain in order to recover his laptop and hard drive. He was rebuffed, told that the U.S. government had the authority to hold on to the laptop for up to 30 days.
“As soon as this happened I knew this was wrong on multiple levels,” he said. “It completely contradicts all my basic ideas of what the government should be able to do.”
Abidor then contacted the American Civil Liberties Union (ACLU), who drafted a letter to the DHS on Abidor’s behalf demanding that his laptop be returned. It was returned to him two days later, after a total of 11 days. By checking the last opened date of specific files on his computer, Abidor ascertained that many files on his computer had been searched, including research, downloads, personal photographs, tax records, and correspondence with his girlfriend. Having no legal recourse under current DHS policy, he decided to file suit.
“It wasn’t merely about getting my laptop back,” commented Abidor. “It was to attack the policy that enabled this to happen to me.”
Abidor is in the second year of his PhD program at McGill’s Institute of Islamic Studies, and is researching the social history of Shiite Muslims in Lebanon in the 19th and 20th centuries. He insists, however, that his background of studying, and traveling to, the Middle East – he has travelled to Yemen, Jordan, Lebanon and Egypt for his studies – is notespecially relevant in his case.
“Be wary,” he said. “For many students, I’d warn them about traveling across the border with their laptop. No one can take comfort in the fact that what my studies are may have been responsible for what happened to me. It’s an arbitrary thing that can happen at any point.”
Current DHS policy, enacted in August 2009, allows for the search and seizure of electronics by American border officials without any specific, provable suspicion against the individual possessing the electronics – typically referred to as reasonable suspicion.
Border searches, unlike all other types of search by American law enforcement agencies, do not require reasonable suspicion. When the policy was enacted, U.S. Secretary of Homeland Security Janet Napolitano observed that, “keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States. The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
In addition to laptops, all electronics that a traveler may be carrying are eligible for search without reasonable suspicion, including mp3 players and phones. DHS spokesperson Amy Kudwa wrote in an email, “While we cannot comment on pending litigation, searches of laptops and other electronic media during secondary inspection are a targeted tool that CBP uses in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country.”
Calling in reinforcements
Abidor’s lawsuit, filed with the National Association of Criminal Defense Lawyers and the National Press Photographers Association as additional plaintiffs, is represented by the ACLU. Abidor said that the diversity of plaintiffs “really shows a good spectrum of the type of people who are negatively affected by this.” The government has 60 days to respond to the suit, which was filed last Tuesday in New York’s 2nd Circuit court.
Catherine Crump, the ACLU staff attorney responsible for Abidor’s case, explained that, “we chose to become involved in this case because we believe that constitutional violations occurring at the border are serious ones. We believe that the 1st amendment and 4th amendment prevent the Department of Homeland Security from searching laptops at border absent reasonable suspicion.”
The 1st amendment, upholding freedom of speech, and the 4th amendment, protecting against “unreasonable search and seizure,” form the backbone of the legal case against suspicionless searches at borders.
“After that, when he returned, he expressed interest in making sure that the government hadn’t kept any information about him that it had gleaned from his laptop through what we believe was an unconstitutional search,” continued Crump. “We asked that any information gathered from his laptop be expunged.”
The case’s stakes are high: approximately 6,600 travellers at American borders have had their laptops searched under this policy between October 2008 and June 2010.
Crump concluded, “Mr. Abidor’s goal, as well as that of our other clients, is to make sure no one has an experience like this again. The broad goal of the case is to get the court to declare suspicionless search unconstitutional. … While it is recognized that the government has more discretion at the border than elsewhere, we believe reasonable suspicion balances civil liberties, [which] we are all beneficiaries of, with the need to secure the border.”