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Tuesday, December 4, 2012

Daily Report: Border Searches Face New Challenges in Digital Age

The government has historically had broad power to search travelers and their property at the border, but that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine, reports Susan Stellin in Tuesday's New York Times.

Searches by border agents are rare; about 36,000 people are referred to secondary screening by United States Customs and Border Protection daily, and roughly a dozen of those travelers are subject to a search of their electronic devices. But in several court cases, plaintiffs are seeking to limit the ability of border agents to search, copy and even seize travelers' laptops, cameras and phones without suspicion of illegal activity. A decision in one of those suits, Abidor v. Napolitano, is ex pected soon.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government's interest in combating crime and terrorism. But Mr. Pascal's lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.

In another case, House v. Napolitano, border officials at Chicago O'Hare Airport confiscated a laptop, camera and USB drive belonging to David House, a computer programmer, and kept h is devices for seven weeks. The lawsuit charges that Mr. House was singled out because of his association with the Bradley Manning Support Network. Pfc. Bradley Manning is a former military intelligence analyst accused of leaking thousands of military and diplomatic documents to the antisecrecy group WikiLeaks.

In March, a federal judge refused to dismiss the suit, saying that although the government did not need reasonable suspicion to search someone's laptop at the border, that power did not strip Mr. House of his First Amendment rights. Legal scholars say this ruling could set the stage for the courts to place some limits on how the government conducts digital searches.