Border searches of journalists raise First Amendment issues

Federal officials recently detained another journalist and photocopied the contents of his laptop computer and other electronic devices as he returned to the United States from assignment overseas. Meanwhile, the U.S. government has asked a federal court to dismiss a lawsuit challenging the constitutionality of such border searches.

Videographer Brandon Jourdan said immediately after he deplaned at New York’s John F. Kennedy International Airport last month, U.S. Immigration and Customs Enforcement agents approached and led him to a room used by U.S. Department of Homeland Security officials, according to Jourdan’s interview with “Democracy Now!,” a nationally syndicated daily television and radio news program for which he was documenting the rebuilding of schools in earthquake-ravaged Haiti. Homeland Security agents questioned Jourdan about his travels, and searched and photocopied his documents and the contents of his computer, phone, camera flash drives and external hard drive, Jourdan said. The detainment lasted more than five hours, he added.

Jourdan said this latest incident marks the seventh time in five years he has been subjected to such lengthy searches. When questioned about the reason for the detainments and inquiries, Homeland Security officials told him he is “on a list,” without providing further information, except that their orders to search him come “from Washington,” Jourdan told the interviewer.

Jourdan is not the only journalist to be subjected to what government officials call "routine border searches," in which customs authorities select travelers — American citizens and foreigners — at U.S. borders and search their electronics. The National Press Photographers Association, whose members include television and still photographers, editors, students and representatives of the photojournalism industry, is one of the plaintiffs in Abidor v. Napolitano, a federal lawsuit challenging agents' authority to search, copy and detain travelers’ electronic devices at the border without reasonable suspicion. According to the complaint, more than 6,500 people, nearly 3,000 of them U.S. citizens, were subjected to a search of their electronic devices as they crossed U.S. borders between Oct. 1, 2008 and June 2, 2010.

Another plaintiff in the suit, Pascal Abidor, a 26-year-old dual French-American citizen, was traveling from Montreal to New York on an Amtrak train when U.S. Customs and Border Protection officers searched and confiscated his laptop. Abidor, an Islamic studies doctorate student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before he was released without charge. When his computer 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.

The suit alleges that the border policies violate the First and Fourth Amendments to the U.S. Constitution by permitting the suspicion-less search of electronic devices that contain expressive, protected materials.

“The policies and practices of searching, copying, and detaining these personal devices without suspicion or judicial supervision violates [sic] the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny,” according to the complaint.

The government moved to dismiss the suit, citing the “long standing, well-established legal authority of the Government to conduct broad searches at the border.”

Regarding journalist searches, the government argued that “[a]n otherwise valid search under the Fourth Amendment does not violate the First Amendment rights of an individual — even a completely innocent individual — simply because the search uncovers expressive materials,” its motion to dismiss said. “This premise is equally applicable in the border search context.”