E.D.N.Y.: Suspicionless border searches of laptop computers and other electronic devices are reasonable

Suspicionless border searches of laptop computers and other electronic devices are reasonable, following other courts. As to the named plaintiff, there was reasonable suspicion. Also, plaintiffs also don’t have standing against future searches. Abidor v. Napolitano, 2013 U.S. Dist. LEXIS 181891 (E.D. N.Y. December 31, 2013):

While I do not believe that the plaintiffs have standing, I discuss the merits of their claims in order to complete the record and avoid the possibility of an unnecessary remand in the event that the Court of Appeals shall disagree. I agree with the Ninth Circuit that reasonable suspicion is not required to conduct a cursory manual search of an electronic device at the border. Cotterman, 709 F.3d at 960. I also agree with the Ninth Circuit that the transport of an electronic device away from the border to perform a forensic search is not a dispositive fact, and “the extended border search doctrine does not fit th[at] search.” Id. at 962. Finally, I agree with the reasons stated in the thoughtful and considered opinion of Judge Wilkinson in United States v. Ickes, 393 F.3d 501 (4th Cir. 2005), which the Ninth Circuit adopted in United States v. Arnold, 533 F.3d 1003, 1010 (9th Cir. 2008) (O’Scannlain, J.), for refusing to carve out a First Amendment exception to the border search doctrine. I focus here on the issue of whether a comprehensive forensic search can only be undertaken based on reasonable suspicion.

Outside of this circuit, three Courts of Appeals have addressed the question. The Third and Fourth Circuits held that searches of electronic devices constitute routine border searches. United States v. Linarez-Delgado, 259 F. App’x 506, 508 (3d Cir. 2007) (“Data storage media and electronic equipment, such as films, computer devices, and videotapes, may be inspected and viewed during a reasonable border search.”); United States v. Ickes, 393 F.3d at 506–07 (rejecting defendant’s argument that “expressive materials”—such as defendant’s computer and disks, which contained child pornography—are shielded by the First Amendment from routine border searches).

Nevertheless, the Ninth Circuit recently held that border searches of electronic devices may require reasonable suspicion in some circumstances. United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). In that case the defendant was detained at the U.S.-Mexican border because of a positive hit on the Treasury Enforcement Communication System, which “indicated that [he] was a sex offender . . . and that he was potentially involved in child sex tourism.” Id. at 957. The defendant’s two laptop computers and a digital camera were held for examination. Id. at 957–58. Officers discovered images of child pornography after a thorough forensic examination of the defendant’s laptop. Id. at 958–59.

The Court of Appeals differentiated between what it referred to as a “forensic examination” and the “quick look” it had previously approved without a suspicion requirement in other cases. Cotterman, 709 F.3d at 960–61 (citing Arnold, 533 F.3d at 1009 (9th Cir. 2008)). …
. . .

This leaves one last point—Abidor’s as applied challenge to the quick look and comprehensive forensic searches of his electronic devices. There was reasonable suspicion for those searches. “A reasonable suspicion inquiry simply considers, after taking into account all the facts of a particular case, ‘whether the border official ha[d] a reasonable basis on which to conduct the search.’” Irving, 452 F.3d at 124 (quoting United States v. Asbury, 586 F.2d 973, 975–76 (2d Cir. 1978)). Reasonable suspicion is a relatively low standard and border officials are afforded deference due to their training and experience. See Montoya de Hernandez, 473 U.S. at 542. In Asbury, the Second Circuit identified a number of factors that have been deemed significant in evaluating whether law enforcement officers have a reasonable suspicion of possible criminal activity, including “[a]n itinerary suggestive of wrongdoing” and “[d]iscovery of incriminating matter during routine searches,” Asbury, 586 F.2d at 977, both of which were present in this case.

In Abidor’s case, CBP agents observed images of the rallies of designated terrorist groups (Hamas and Hezbollah) on the laptop computer of a traveler who had recently traveled to Lebanon. According to the State Department report in effect at the time of the search, “[Hamas] retains a cadre of leaders and facilitators that conducts diplomatic, fundraising, and arms-smuggling activities in Lebanon, Syria, and other states,” and was “increasing its presence in the Palestinian refugee camps in Lebanon.”