The question of what, if anything, should be required of the government before an agent can rifle through the contents of your computer or, worse still, seize it for mirror imaging with a promise that it may be returned to you someday by someone you will never know, at the border has been a difficult one. It’s not that it has been entirely without historic precedent, as border agents could look through your briefcase at the papers within to make sure you weren’t carrying the Zimmerman telegram, but it’s not like they read it all page by page.
But computers are different. Computers contain our secret, private lives. Some of it may well be of great interest to the government, though most of it is none of their business under any circumstances, and more about our own personal privacy than any wrongdoing. Computers bring a level of intrusiveness inconceivable before their existence. And so, their seizure and inspection raises issues that never before existed.
Pascal Abidor’s computer spanned the gap between the sort of stuff that a government agent might think is a problem, and the privacy a guy believes is protected from inspection, and so he took on the role of plaintiff, along with two groups that could muster arguments that should have been sufficient to get a judge to declare where the lines should be drawn.
When the case was assigned to former Chief, now Senior, Eastern District of New York Judge Edward Korman, they must have thought they hit the jackpot. Not that Judge Korman would be easy, but that he had the guts to tell the government to get lost. That’s about the best one could hope for. But the opening of Judge Korman’s opinion in Abidor v. Napolitano killed any hope the plaintiffs might have had.
Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography.
Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.
Nothing good ever starts with a quote by Michael Chertoff. Ever. The holding was that plaintiffs lacked standing to maintain the action. Often unrecognized by non-lawyers, Article III of the Constitution limits federal court jurisdiction to matters involving a Case or Controversy, meaning that it has to be a real dispute, and that courts can’t issue advisory opinions.
Judge Korman, noting that the likelihood of a person’s computer being searched was lottery-winning level small:
Statistics compiled and published by the CBP in 2006 indicate that “[o]n a typical day, more than 1.1 million passengers and pedestrians . . . are processed at the nation’s borders.” Securing America’s Borders at Ports of Entry, U.S. Customs and Border Protection, 2 (Sept. 2006), https://www.hsdl.org/?view&did=469950.4 Using that figure, fewer than one in a million electronic devices were detained by the CBP. Stated another way, there is less than a one in a million chance that a computer carried by an inbound international traveler will be detained.
Based in part upon this, he concluded that the claims of potential injury were too speculative to create standing. It was a toss-up question, given the elastic standard. He could just as well have concluded that the claims were sound, likely to happen, and likely to evade decision or subject the eventual targets to irreparable harm if not determined. Rhetoric is funny this way.
But Judge Korman, in what he suggests is an excess of caution, goes on to offer some curious dicta as to what he would decide if the Second Circuit disagrees on the standing ruling. The relief sought was a holding that the government be required to possess “reasonable suspicion” before being permitted to seize a computer at the border, as opposed to the extant rule that, at the borders, the government can do anything it pleases. Judge Korman wrote:
Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources, Pls.’ Br. 8-9, or to protect privileged information, Pls.’ Br. 8. Nor is this the only consideration that prevents them from guaranteeing confidentiality. The United States border is not the only border that must be crossed by those engaging in international travel. “Carrying an electronic device outside the United States almost always entails carrying it into another country, making it subject to search under that country’s laws.”
This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.
This is some strong stuff. On the one hand, it can be taken to mean that we shouldn’t blame the government for searching our computers when we leave content on them that we don’t want the government to see. But there is another way to view Judge Korman’s admonition.
We, lawyers and non-lawyers alike, who put stock in the ability of the law to solve the excesses of government power believe that such pale measures as the incantation of the words “reasonable suspicion” will change everything. Such amorphous and readily fudgible legal tests will spell the difference between a border guard checking out nude selfies of spouses and respect for privacy. We believe that higher order pronouncements of law dictate the conduct of agents of the government at the airport border control booths.
Maybe what Judge Korman is trying to tell us is to grow up, stop believing in magical phrases to protect us from real world intrusions. Maybe he’s trying to say that our allegiance to the high order of the law blinds us from the practicalities on the ground like the People’s Temple members who did as Jim Jones instructed. The law isn’t up to the task of saving us.
It’s difficult to conceive of Judge Korman randomly using the phrase “drinking the Kool-Aid” to show off his cultural chops. There had to be a reason. Then again, he also cited to Michael Chertoff, the embodiment of modern cynicism and governmental overreach, three times in the opinion. If his use of Kool-Aid wasn’t accidental, neither was his reliance on Chertoff’s vision of an America where order trumps law whenever it serves the government’s purpose.