Border Cops Seize Nurse's Phone Filled With Psychiatric Patient Information
CBP allegedly told the nurse that “your lawyer cannot do anything” and agents can take the data “the easy way or the hard way.”
U.S. Customs and Border Protection (CBP) seized a psychiatric nurse practitioner's phone filled with confidential patient information at Washington Dulles International Airport last week, according to a new lawsuit. Muhammad Numaan Imam alleges that CBP agents told him that they could take his electronics the "easy way or the hard way" and refused to let him talk to his lawyer because "we are the authorities at the border."
The lawsuit by the American-Arab Anti-Discrimination Committee (ADC) may be the first time CBP is taken to court over seizing people's medical records. ADC is also helping Palestinian-American lawyer Jay Shehadeh and Jewish-American journalist Max Blumenthal sue over their devices being seized.
"We're seeing a pattern where officers use their border-search authority not to advance any legitimate border-related purpose, but to punish individuals for refusing to provide access to their personal electronic devices and for having expressed views the government didn't approve of," ADC president and legal director Jenin Younes wrote in a statement emailed to journalists.
While Shehadeh and Blumenthal claim that CBP is retaliating for their political views, Imam argues that he faced threats and retaliation with the simple act of asserting privacy rights. Both Imam and Shehadeh were considered "trusted travelers" under the Global Entry program, which allows American citizens who undergo a background check to pass through an automated fast track at airports and borders.
Asked by Reason, a CBP spokesperson did not address any specifics of the case, giving only a generic statement about how "CBP's ability to lawfully inspect electronic devices crossing the border is integral to keeping America safe in an increasingly digital world."
The border exemption to the Fourth Amendment gives U.S. authorities the power to look for "contraband" crossing into the country without a warrant. There is a mess of contradictory court rulings on whether that power includes searching travelers' electronic data, but in practice, CBP can simply seize the physical devices that the data live on.
And the agency often lies outright to travelers whose data that it wants to search, as documents recently released in the case of Atlanta protester Samuel Tunick show. CBP agents gave Tunick a false reason for detaining him and falsely promised that he would be allowed to leave with his phone if he cooperated, even though they were under orders to seize his devices no matter what. Tunick is now on trial for allegedly tricking the CBP agents into deleting his data to avoid a search.
"It's happening to a lot of people, and it's being used in this coercive, inappropriate way," Younes tells Reason.
The problems for Imam, who lives in Virginia, actually began at another border. He was heading to Istanbul on Saturday for a family vacation with his Pakistani wife, Khadijah Mansoor, and their 1-year-old child. Turkish authorities demanded to see Mansoor's U.S. green card, which she had forgotten at home, and wouldn't let her enter on her Pakistani passport alone. The family had to board the next flight back to Washington. On their arrival, CBP naturally wanted to know why they had been turned away and why Mansoor didn't have her green card.
But things took a weirder turn after agents told Imam he had been "flagged" for undisclosed reasons, pulled him into a separate room, and began questioning him about his social media use and group chats, according to the lawsuit. (Imam tells Reason that they asked about group chats in general, not any specific group chat.) When agents asked for the password to Imam's phone, he told them that he uses the phone to communicate with and manage cases for patients at the rehab facility where he works. The Health Insurance Portability and Accountability Act (HIPAA) strictly prevents doctors and other medical staff from sharing patient data without consent, so Imam asked to speak to a lawyer.
"Your lawyer cannot do anything. We are the authorities at the border," Imam recalls one agent saying. A supervisor then told the couple that CBP could take all of their electronics the "easy way or the hard way," and that the devices could take months to get back, Imam and Mansoor claim.
CBP's own internal policy says that devices should "ordinarily" be held for less than five days. The same policy includes vague guidelines for dealing with medical information: "Possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy." Imam says that the CBP agents claimed to have software for filtering out HIPAA-protected data.
After four hours in detention, CBP took the family's phones and laptops and let them go. The next day, Imam got an email stating, "We regret to inform you that your membership in Global Entry has been revoked for the following reason(s): You do not meet the Trusted Traveler standard." In addition to both Imam and Mansoor losing valuable work data, the lawsuit argues, Imam is now unable to prescribe certain psychiatric medications to his patients, because of federal regulations that require phone verification.
The lawsuit demands the return of the devices and data under Rule 41(g) of federal criminal procedures, which requires the government to hand back property that is no longer necessary for a criminal investigation. ADC has also filed these motions in Shehadeh and Blumenthal's cases. (CBP gave back Blumenthal and Shehadeh's phones almost immediately afterward, but ADC is continuing to press for records of what they did to those phones in custody.) Younes filed a brief on Blumenthal's behalf in support of an upcoming Supreme Court case over whether CBP can continue these electronic searches.
"The devices are neither contraband nor subject to forfeiture, and, to Plaintiffs' knowledge, there is no pending criminal investigation, criminal prosecution, or warrant authorizing their continued seizure or search," Imam's lawsuit states. "The Fourth Amendment does not permit the border-search exception to become a means of coercing compliance through the threatened or actual confiscation of travelers' personal property."