District Judge Upholds Government’s Right to Search Electronics at Border

In his opinion, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York found that the plaintiffs did not have standing for their lawsuit because such searches occur so rarely that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”

Even if the plaintiffs did have standing, Judge Korman found that they would lose on the merits of the case, ruling that the government does not need reasonable suspicion to examine or confiscate a traveler’s laptop, cellphone or other device at the border.

“There’s no silver lining to this decision,” said Catherine Crump, a lawyer for the American Civil Liberties Union, which represented the plaintiffs. “It’s not just that we lost the case. It’s that the judge decided against us on multiple alternative grounds.”

The lawsuit was filed in 2010 by Pascal Abidor, a graduate student in Islamic studies, who sued the government after American border agents removed him from an Amtrak train crossing from Canada to New York. He was handcuffed, placed in a cell and questioned for several hours, then his laptop was seized and kept for 11 days.

The National Association of Criminal Defense Lawyers and the National Press Photographers Association were also plaintiffs in the case, arguing that their members travel with confidential information that should be protected from government scrutiny.

In rejecting this argument, Judge Korman cited the rarity of electronic device searches and questioned whether travelers need to carry computers containing sensitive data when they travel abroad.

“While it is true that laptops may make overseas work more convenient,” he wrote, “the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.”

Mr. Abidor said he was disappointed but not entirely surprised by the ruling.

“I can’t say it wasn’t foreseeable based on the line of questioning by the judge during the initial hearing,” Mr. Abidor said. “He just seemed so skeptical of the basic premise that people need to travel with devices.”

“These checks are essential to enforcing the law, and protecting national security and public safety,” Peter Boogaard, a spokesman for the Department of Homeland Security, said in a statement, “always with the shared goals of protecting the American people while respecting civil rights and civil liberties.”

In his opinion, Judge Korman emphasized how infrequently border agents search or detain electronic devices, but it is unclear how accurately the government tracks these statistics.

According to Customs and Border Protection, the agency conducts about 15 device searches a day at American entry points. But a 2011 assessment of this practice by the Department of Homeland Security, which oversees the border agency, cited problems with how these incidents are counted.

The report noted: “C.B.P.’s system for entering the results of electronic device searches did not allow analysts to accurately identify incidents and seizures related to electronic device search activity, thus hindering C.B.P.’s ability to monitor and evaluate performance and making it difficult to provide accurate operational data concerning searches of electronic devices.”

While the courts have generally supported the government’s authority to search travelers at the border, based on the government’s interest in combating crime and terrorism, a decision last year placed some limits on more intrusive device searches.

In March, the Court of Appeals for the Ninth Circuit in California ruled in United States v. Cotterman that reasonable suspicion of criminal activity was required for a forensic search of a device confiscated at the border — a more extensive exam, as opposed to a cursory look at photos or other files.

That decision applies to states covered by the Ninth Circuit, including California, Washington, Oregon, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii. Judge Korman’s ruling will not have as much legal impact, since it comes from a district court rather than a circuit court.

“It maintains the status quo, which is that the government is free everywhere except in the Ninth Circuit to conduct all types of electronic device searches without reasonable suspicion,” Ms. Crump from the A.C.L.U. said. “We are considering an appeal, but we haven’t made a decision one way or the other yet.”

S&P Says Government’s Lawsuit Is ‘Retaliation’

Standard & Poor's says the U.S. government sued the rating agency as "retaliation" for its downgrade of the country's credit rating.

The Department of Justice filed civil charges against the rating agency in February, claiming that S&P refused to warn investors that the housing market was collapsing because it would be bad for business. It also says S&P knowingly inflated ratings of risky mortgage investments that helped trigger an economic crisis. And that S&P gave high marks to the investments because it wanted to earn more business from the banks that issued them.

The government is seeking $5 billion in penalties.

S&P, a unit of McGraw Hill Cos., has repeatedly denied the claims.

The rating agency said in a court filing Tuesday that its opinions were independent and based on a good-faith assessment of the performance of residential mortgages during a tumultuous time in the market.

It also said that, like nearly everyone else at the time, S&P did not anticipate the scope or impact of the collapse of the housing market on the economy as a whole.

S&P says that it is being sued in retaliation for a downgrade of the United States' top-tier credit rating in 2011.

The rating agency downgraded the U.S. government's long-term credit rating one notch to "AA+" following a standoff in Congress over whether to raise America's borrowing limit. The agency was concerned that the country's leaders weren't addressing the federal debt burden.

It was a historic move that sent the stock market plunging and rattled consumer and business confidence. Previously, the U.S. government had always received a "AAA" rating, reserved for the most credit-worthy borrowers.

S&P said in court documents that it was exercising its right to free speech with the downgrade and that its concerns echoed those of other rating agencies.

"Only S&P Ratings downgraded the United States and only S&P Ratings has been sued by the United States," it said in the court filing.

A representative for the Justice Department did not respond immediately to a request for comment.

S&P wants the lawsuit dismissed with prejudice, meaning that it cannot be brought again.

Standard & Poor's Ratings Services reaffirmed the country's "AA+" rating in June and upgraded its outlook to "Stable" from "Negative" on some easing of Washington's political gridlock, a recovering U.S. economy and stronger government finances.

The improved outlook means it's less likely to downgrade the U.S. debt in the near future.

___

AP Business Writer Marcy Gordon contributed to this report from Washington D.C.

Bits Blog: Governments, Led by U.S., Seek More Data About Twitter Users

Report Finds Legal Fees Out of Control in Local Governments

A report released Tuesday by the state comptroller found local governments are failing to control excessive and improper payments for legal services.

Letters: Household Debt, vs. the Government’s

Household Debt, vs . the Government’s

To the Editor:

Re “A Sustainable Budget Should Survive Any Storm” (Economic View, March 31), in which N. Gregory Mankiw said that the federal budget should be built to withstand catastrophic events:

The column made a point that is too rarely mentioned in Republican circles: that a household budget is unlike the budget of the federal government, which “has been granted the presumption of immortality by its creditors” and thus faces “no final day of reckoning on which all debts need to be repaid.”

But a more nuanced — and politically relevant — point might be made. Many individuals die insolvent, which means that they did not balance their lifetime budgets. For all practical purposes, many of your debts die with you.

Moreover, few people start from zero. Even if they do not inherit money, most enjoy assorted forms of “income” courtesy of their parents for the first 18- to 20-odd years of life.

For all these reasons, the tired notion that a government budget is just like a business or a family budget ought to be called out as balderdash more often. DAVID TALLMAN

Atlanta, March 31

•

To the Editor:

Late in his column, Professor Mankiw says that “military and economic catastrophes are, by their nature, unpredictable,” and, as such, should be reasons for budgetary prudence by the federal government.

A third catastrophe, however, is the political kind — like that of the George W. Bush administration he advised. That’s the administration that decided, amid huge national debt, to use budget surpluses to give tax breaks to the wealthy.

KELLEY S. WILLIS

Venice, Calif., April 1

Letters for Sunday Business may be sent to sunbiz@nytimes.com.