On Tuesday, a US federal judge dismissed (PDF) a 2010 case brought by an American student, Pascal Abidor, who challenged the broad ability of government officials to search and seize electronics like laptops and cell phones at international borders.

It's a major setback for civil liberties advocates, who have long chafed at the huge amount of information that can be taken—without a warrant—from citizens passing through airports. "I was at the initial hearing for the motion to dismiss—I’m not surprised [at the decision],” Abidor told Ars. "But, I am thoroughly unconvinced [as to the judge’s logic]."

Abidor said he was not sure if he and his co-plaintiffs would appeal the decision.

Catherine Crump, the American Civil Liberties Union attorney representing Abidor, dubbed the decision “bad news" on Twitter. She added later, “There is no discernible silver lining to this opinion.”

The case began on May 1, 2010, when Abidor was aboard an Amtrak train from Montreal to New York City. Abidor, a dual US-French citizen and student at McGill University in Montreal, submitted a routine customs declaration and US passport to a Customs and Border Protection (CBP) officer. He explained to the officer that he was studying in Canada, pursuing a doctoral degree in Islamic Studies. Under further questioning, Abidor noted that he had lived in Jordan and traveled to Lebanon within the previous year.

According to court documents, Abidor was ordered to come to the train’s café car for further questioning and searches. The CBP officer ordered Abidor to type in the password to the laptop, which he did. Upon doing so, the officer found images of Hamas and Hezbollah, which Abidor explained were part of his research on modern history of Shiites in Lebanon. Abidor was then subject to further physical search of his computer, cellphones, and person. He was also detained in a holding cell for three hours.

"They say things that on their own would be innocent can together become suspicious," Abidor added in an interview to Ars, underscoring the fact that what happened to him remains legal under American law. “I don’t buy that. I didn’t break any laws. I didn’t hide anything.”

Abidor filed the case in conjunction with the National Association of Criminal Defense Lawyers and the National Press Photographers Association, who are co-plaintiffs.

Searches are "one in a million"

So why was the case dismissed? Judge Edward Korman wrote that Abidor and the other plaintiffs lacked standing.

Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged. Instead, it appears that Abidor was chosen to participate as a co-plaintiff because, unlike any member of the association plaintiffs, his computer was subject to a search pursuant to the directives that are challenged here. . . . Because plaintiffs do not face a threat of certainly impending suspicionless border searches of their electronic devices, they cannot establish standing based on the measures they have undertaken to preserve confidentiality of the sensitive information they claim would be compromised as a result of the searches that the challenged directives authorize.

The judge also noted that searches like the one Abidor was subject to are rare, citing CBP data from 2006 showing that "fewer than one in a million electronic devices were detained by the CBP."

Judge Korman went further in his decision to “discuss the merits of their claims in order to complete the record and avoid the possibility of an unnecessary remand in the event that the Court of Appeals shall disagree.”

The judge found that cursory border searches of electronic devices do not require reasonable suspicion, citing the “border search doctrine.” Further, even though the government did not declare such a suspicion in this case, the judge speculated that it could have done so.

Moreover, although Abidor told officers he was living in Canada, he possessed both a U.S. and French passport, Compl. ¶¶ 26, 28, a circumstance which, while perhaps innocent in itself, in combination with other factors may have increased the level of suspicion, especially as the passport containing the visas from Lebanon and Jordan was not produced initially. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (several factors which by themselves are “consistent with innocent travel” may, taken together, “amount to reasonable suspicion”). The agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices.

But Judge Korman took it one step further, saying that this “reasonable suspicion” requirement would have failed too. Plaintiffs like the reporters' group shouldn't even consider their information confidential if they carry it abroad to places like Syria, he 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.” Cotterman, 709 F.3d at 977 n.8 (Callahan, J., dissenting). Surely, Pascal Abidor cannot be so naïve to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah. . . . 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.

"I have no trouble going to France"

So what has become of Abidor? He is currently pursuing his studies in Brooklyn and still crosses the Canadian-US border.

But he’s changed his research topic, his means of data-gathering, and his mode of transportation.

“I initially wanted to do something on something more contemporary,” he said. “The ethical questions that arise once you know that anything I write will be sent to the government—I decided that I don’t want to have to worry about anything, or getting anybody in trouble. I went from [studying] mid-late 20th century [Shiism], to late-19th to mid-20th century, looking at decidedly deader people than I initially did. I was initially interested in more visual things. I learned my lesson that collecting photos is a bad idea. I try to keep as little as possible on my laptop. What is there is of little use to anyone outside my field. I try to keep notebooks that I don’t travel with.”

Abidor said he was constantly “subject to secondary search” at the land border crossing until the New York Times wrote about his case in December 2012, at which point the searches abruptly stopped. Since the initial 2010 episode, Abidor said he now only drives across and tries to travel accompanied by friends and family.

“They refused to believe that he was my Dad,” Abidor claimed.

And has he had any trouble flying to other countries?

“I have no trouble going to France,” he said, where he has relatives. “It’s a catch-22. I have the right to leave America, but the right to leave America means I lose my basic rights as a citizen.”