Abidor v. Napolitano (Challenging DHS policy authorizing suspicionless search and siezure of travelers' electronic devices)

E.D.N.Y., Index No. CV10 - 4059 (direct)

This lawsuit challenges the U.S. Department of Homeland Security's (DHS) policy permitting border agents to search and seize travelers’ electronic devices at the border without reasonable suspicion.

DHS asserts the right to look though the contents of a traveler's electronic devices – including laptops, cameras and cell phones – and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.

On Sept. 7, 2010, the American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL) filed the lawsuit on behalf of the National Press Photographers Association (NPPA), whose members include television and still photographers, editors, students and representatives of the photojournalism industry; NACDL, which is a plaintiff as well as counsel on the case; and Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border.

Abidor was traveling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by Custom and Border Patrol officers. Abidor, an Islamic studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched.

Documents obtained by the ACLU in response to a separate Freedom of Information Act (FOIA) lawsuit for records related to the DHS policy reveal that more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches at the border between Oct.1, 2008 and June 2, 2010.

The ACLU, NYCLU and NACDL filed today’s complaint against Secretary of Homeland Security Janet Napolitano, U.S. Customs and Border Protection Commissioner Alan Bersin and Assistant Secretary of Homeland Security for Immigration and Customs Enforcement John T. Morton in the U.S. District Court for the Eastern District of New York.

Attorneys on the case are Catherine Crump of the ACLU, Christopher Dunn and Arthur Eisenberg of the NYCLU and Michael Price of NACDL.

Materials related to the lawsuit, including a video featuring ACLU lawyer Catherine Crump and client Pascal Abidor talking about the case, are available here.

The documents released in the ACLU's FOIA lawsuit are available here.