Drinking the Kool-Aid

Today’s Abidor v. Napolitano (E.D.N.Y. Dec. 31, 2013), which deals with border searches of electronic equipment, includes the following passage:

Plaintiffs try to bolster their claim for standing in several ways. The NACDL [National Association of Criminal Defense Lawyers] alleges that its members routinely travel abroad to “collaborate with foreign colleagues and/or as part of their representation of their clients.” They almost always travel with electronic devices because those devices “are necessary to take notes, record interviews, perform legal research, draft legal documents, retrieve case files, and communicate.” The NACDL goes on to allege that because its “members have an ethical duty to safeguard attorney-client and other privileged information, they must spend time and money to mitigate the harm that future searches will cause.” Similarly, the NPPA [National Press Photographers Association] argue that the challenged policies “undermine NPPA members’ ability to guarantee confidentiality to the sources they communicate with abroad.” Consequently, “[t]he risk [their] sources’ identities will be revealed to border agents … will lead some sources who otherwise would have shared information or been recorded, photographed, or videotaped to decline to do so.” …

[But] it is difficult to understand how a threshold requirement of reasonable suspicion [which the plaintiffs claim is constitutionally required] significantly alleviates the alleged harm that plaintiffs fear. Reasonable suspicion is a minimal threshold standard for conducting a search…. 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, or to protect privileged information.

I can’t speak to the Fourth Amendment analysis, which I leave to Orin and others. But my quick check suggests that this is the first use of the idiom “drinking the Kool-Aid” in a federal judicial opinion at the judge’s instance (rather than just relaying what others say). A Virginia state trial court, however, did use it earlier, as did a dissenting Justice on the West Virginia Supreme Court.