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A Confiscated Computer at the U.S.-Canadian Border
by Mitchell Abidor
The hearing in the case of Abidor v. Napolitano was held at the federal courthouse in downtown Brooklyn on July 8th, 2011. The Abidor in the case was my son Pascal; the Napolitano, Janet Napolitano, U.S. Secretary of Homeland Security; the lawyer for the plaintiff, Catherine Crump of the American Civil Liberties Union (ACLU).
The suit had been filed almost a year earlier. Pascal, 26, a dual U.S. and French citizen, and a Ph.D. student in Islamic studies at McGill University in Montreal, was on the train, heading home, at the end of the school year in May, 2010. At the border, the U.S. Customs and Border Patrol agent asked the usual questions: Why he was in Montreal, what he was studying? When he answered that his field was Islamic Studies, he was asked why, and whether he spoke Arabic and had traveled to the Middle East. Not believing they could ask such inane questions (my son inherited my inability to suffer fools gladly), Pascal replied that he’d been inspired by Indiana Jones, and that of course he spoke Arabic and had visited that part of the world, given his field of study.
His passport contained visas for Jordan, Lebanon, and Yemen.
In the Al-Sira, one of the three fundamental texts of Islam, it is said that “whoever speaks Arabic is an Arab.” For the border guards, this was clearly the case. Pascal was hustled off the train in handcuffs, and interrogated in a holding cell by, among others, an FBI agent. Pascal’s laptop computer was confiscated. He was asked about his travels, which included attendance at an Arabic-language course in Yemen and work in Amman, Jordan for the prestigious Council for British Research in the Levant. They wanted to know about his religious background, his parents’ religious background, whether he had ever visited a mosque. They were curious about the origin of his family name (it’s Hebrew and means “father of the generation”). They wanted to know about photos he’d taken of Shi’ite sites and rallies, all easily explained as part of his studies.
I found out about all this only when he was released four hours later, as he had been held incommunicado, with his cell phone confiscated and searched as well. To add to the indignity, after his detention he was simply left at the border and made to wait for a bus that would take him the rest of the way to New York City. When Pascal finally was able to call me, he was a gibbering wreck, and I assured him we’d find a way to fight what had happened to him and to recover his computer.
Pascal called the border post repeatedly to find out when he was getting his laptop back. Homeland Security responded by saying they could keep it as long as they deemed necessary. So he called the ACLU to describe his situation, and they asked him to meet with them.
The ACLU wrote to Homeland Security citing case law and insisting that the computer be returned — which it was within two days, after having been tampered with, visibly. The ACLU then asked Pascal if he was simply interested in his laptop or in the general issues of violation of privacy and illegal search and seizure. He said that it was the larger issue that really mattered, and they asked him if he’d be willing to be the plaintiff in a lawsuit for which they’d been attempting to locate the perfect plaintiff. A Freedom of Information Act request by the ACLU had revealed that sixty-five hundred others, half of them Americans, had also had their laptops searched at the Canada-U.S. border because of their supposed threat to national security. To the ACLU, this suspicionless search was a clear violation of the Fourth and First amendments of the Constitution.
Pascal, it turned out, was part of a more elite group of two hundred and eight suspects whose computer contents had been downloaded and kept by the government. Among the information in its possession now were photos of Pascal and his girlfriend, copies of chats, e-mails, and school notes, and tax records.
The ACLU waited to serve papers until after Labor Day, to garner the most attention for its suit. Two other organizations affected by suspicionless searches of laptops and cell phones also participated, the National Press Photographers Association and the National Association of Criminal Defense Lawyers.
How had Pascal come to this? Since it was clearly his field of study that rendered him suspect, the question I was frequently asked — similar to the one asked by the border guards — was what would have inspired him, the son of a Francophile Jewish Marxist, to study Islam, with a specialty in Shi’ism.
Throughout most of his childhood, we had lived in the Midwood section of Brooklyn — a neighborhood that in my youth had been a simple, middle-class Jewish neighborhood but had since become a suburb of ultra-Orthodox Borough Park and a hotbed of the most reactionary forms of Judaism. It was a neighborhood that had celebrated Baruch Goldstein (who murdered twenty-nine Palestinian worshippers in the Tomb of the Patriarchs on Purim, 1994) and Yigal Amir (Yitzhak Rabin’s assassin), and mourned the death of Meir Kahane. Growing up surrounded by a racist Judaism and by neighbors who viewed him as off-limits because he had a non-Jewish mother certainly colored his view of Jewishness — as it colored mine. Although we ate kasha varnishkes at home and went to klezmer concerts, Pascal couldn’t help seeing that Jews were not all Kafka, Marx, and Freud, and that a sizeable, increasingly dominant proportion of them were closed off to and hating the goyishe world. Our household was a miniature fortress of the Haskala (Jewish Enlightenment) in a neighborhood that rejected modernity. It thus seemed natural that Pascal’s interests would head in a direction at the furthest remove from what he viewed and experienced every day.
I can’t deny that I encouraged him. From my library, I gave Pascal books that presented the Arab world in a radically different light from the dominant one. There was Stephen Runciman’s classic three-volume history of the Crusades, which fascinated my son, and perhaps most importantly Amin Maalouf’s The Crusades Through Arab Eyes, which presented that historical cataclysm as something about which the Arabs had a completely different and absolutely legitimate point of view. Maalouf’s was a book that presented the subjectivity of a people whom the West views as an object. Pascal took an interest in their subject-hood, and this was all to his credit.
At the height of Pascal’s fascination with Islam, I was regularly asked if he had converted. It was a question I never asked him, and one that didn’t at all matter to me. My reaction would not have been the same had it been a question of conversion to Christianity, for that would have meant going over to the enemy, but relations between Jews and Muslims had, until the founding of Israel, been at the very least acceptable — so had he said “La allah ha illa Allah” (“There is no God but Allah”) twice and become a Muslim, I would have shrugged. As far as I knew he hadn’t done that, but in the eyes of the government he might as well have.
And so we had Abidor v. Napolitano.
There was a burst of publicity when the story broke, with Pascal written up in papers in the U.S. and Canada, interviewed by the CBC, and discussed on NPR’s “On the Media.” The coverage was almost all favorable towards him, and websites on both the left and right took up Pascal’s cause: for the right, he was a victim of the execrable big government; for the left, he was the victim of an intrusive national security establishment contemptuous of individual rights. My particular favorite was the comment from Pascal that appeared in the New York Daily News explaining the absurdity of his being treated as a terrorist: “I was born in Brooklyn and my dad is a Jew from Brooklyn. I couldn’t believe, as an American, that this was happening to me.” Of course, I noticed his distancing himself from his own Jewishness, but the quote was nonetheless an effective one.
The government contented itself with filing for dismissal, saying that Pascal had no standing to file a suit. The ACLU contested this, saying that
with each passing day, Americans conduct more of their lives electronically, storing their most intimate details on their personal electronic devices, which have become extensions of people’s minds and receptacles for their thoughts and memories. This case challenges the government’s claimed authority to search Americans’ most private details without any reasonable suspicion of wrongdoing.
Scheduling of the hearing had dragged on for months. In the interim, I became a bit player in this farce.
Rather than have Pascal risk being stranded at the border on his next return home, at winter break I drove to Montreal to bring him home (it should be noted that crossing the border into Canada posed no problems at all for Pascal). When we reached the border, we were told to get out of the car, surrender the car keys, and follow the guards into the border post with our hands visible at all times.
The questioning occurred as we sat in the main hall of the building, with guards badgering Pascal and warning him that if he didn’t answer their questions the way they wanted, they “were going to be there all night, and we’ll keep you and this man you say is your father all night with us.” A lifetime of left-wing activism hadn’t really prepared me for having to stand with my hands flat on a counter, with a guard with his hand on his gun standing between us and the exit.
We were released after about an hour, my only satisfaction being that they had gone through my bags and uncovered stacks of the McGill student paper with Pascal’s photo on the front page and the headline: “McGill Student Battles Homeland Security.” I found it a sign of the times that my keychain, a hammer and sickle with the initials of the Spanish Communist Party on it, seemed unremarkable to the border guards. Study Shi’ism, however, and the hounds of hell will fall on you.
On the day of the hearing on dismissal, the courtroom was packed with observers, and we awaited the majesty of the law to be laid out before us. Judge Edward Korman, we were told, had a reputation for preferring the casual approach, and as the hearing began the lawyers and the judge sat around a table to argue the case.
I squirmed as the government made the claim that Pascal had no standing since he had suffered no harm, and that the government had the right to treat Pascal as they had because of their responsibility for protecting the border. Pascal should additionally be barred from suing, they said, because he had not been personally targeted — as had happened to the Muslim attendees at a conference in Canada who were all detained. Finally, they said, the suit should be dismissed because a laptop is no different from anything else that can legally be searched. The speciousness of this argument was obvious to me: If papers are searched, they can’t be kept, yet the government, in downloading Pascal’s files, had, in essence, kept them.
Catherine Crump of the ACLU started her defense of the case, saying that the Fourth and First Amendments prohibit the kind of search to which Pascal had been subjected — at which point the judge immediately asked why a laptop was needed at all. “How did people do things fifteen years ago?” Crump was flummoxed. She replied that sensitive and personal information could be taken from people’s computers, and the judge again wanted to know why a laptop was needed.
So it continued: Whatever substantive point was brought up, the judge would only ask about what was done before there were laptops. Why even own one? He didn’t have one. He didn’t travel with any information. And so on. Judge Korman was oblivious to arguments about the seriousness of the violation of an individual’s constitutional rights.
Crump had not expected to have to defend the right and need for someone to have a laptop. Seeing that the case of a student did not impress the judge, she spoke about the potential violations of privacy involved if lawyers’ laptops were searched in the same way. The judge, however, was steadfast in his refusal to see the need for laptops. His reasoning gave the government carte blanche: If you travel with information, you do so at your own risk.
He had only one moment of hesitation. After a clerk whispered into his ear, the judge asked what had happened to the information taken from Pascal’s laptop. The government attorney replied that if there had been no lawsuit, the information would have been destroyed. We thereby knew that Pascal’s private information, which was in no way damning, was being kept by the authorities — as clear an invasion of privacy as could be imagined.
There the hearing ended.
Our gloom was palpable. The judge had prevented any discussion of substantive issues of Constitutional rights by putting laptop computers on trial. The lawyers at the plaintiff’s table had been so stunned by this line of reasoning that they’d missed an obvious point they could have made: that what was done before there were laptops was of no relevance, because people now do have laptops, and the purpose of the case was to ensure that when they travel with their laptops, their rights and privacy would be respected. Mickey Osterreicher of the National Press Photographers Association, in his online account of the day, summed it up:
… [T]he judge appeared to retain an anachronistic approach to the question and did not seem inclined to distinguish current technology and data storage from searches of papers and other tangible possessions at the border. He also articulated a somewhat flawed analogy when he said that if he didn’t want to go through security when flying domestically he could take another mode of transportation, thus overlooking the fact that all those wishing to return to/enter the U.S. have to go through customs and be subject to search. The judge also expressed the unrealistic view that if people didn’t want the government to search their devices they should travel without them.
So we wait, months after the hearing, months after the seemingly pointless arguments, waiting for a decision that is a foregone conclusion. The ACLU has told us that they’ll decide if it’s worth pursuing the case once they see the written decision, and if they decide not to go ahead then the government will have gained more license for intruding into our private lives. In the meanwhile, Pascal continues to be subject to “secondary,” intensified searches at the border.
We tremble at the thought of what Homeland Security will do when he returns to the U.S. after completing his doctoral research overseas. His dissertation is about two brothers from southern Lebanon, one of whom became an important Shi’ite cleric, the other a founder of the Lebanese Communist Party.
Mitchell Abidor is a contributing writer to our magazine and a translator, musician, and actor living in Brooklyn. His latest book is Communards: The Paris Commune of 1871 as Told by Those Who Fought For It. He is appearing this spring in Bertolt Brecht’s The Days of the Commune.
Mitchell Abidor, a contributing writer to Jewish Currents, is a writer and translator living in Brooklyn. Among his books are a translation of Victor Serge’s Notebooks 1936 – 1947, May Made Me: An Oral History of My 1968 in France, and I’ll Forget it When I Die, a history of the Bisbee Deportation of 1917. His writings have appeared in The New York Times, Foreign Affairs, Liberties, Dissent, The New York Review of Books, and many other publications.