CBP Really Doesn't Want To Reveal What It Does to Americans' Phones
A judge ruled that the border agency has to give a clearer explanation for why it seized a traveler’s phone without a warrant.
Customs and Border Protection (CBP) insists that it has the right to search Americans' private data without a warrant when entering the country. But ordered to explain one of these searches by a judge, the agency is now trying to wiggle out from under the microscope, invoking its own data privacy.
On Friday, Judge Leonie M. Brinkema in the Eastern District of Virginia ordered CBP to explain the seizure of a local psychiatric nurse's phone and laptop at Washington Dulles International Airport. CBP argued that the court should seal this information from both the public and the nurse himself in order to protect "privileged law enforcement information."
Brinkema initially agreed to let CBP file parts of its response "sealed and ex parte," meaning that neither the public nor the nurse would get to look at them. After reading the filings, the judge declared on Tuesday afternoon "that most of the redacted information is not privileged law enforcement information and should not be sealed." She gave CBP until Thursday at noon to object to unsealing the documents.
"Without knowing what happened, we cannot assess the extent of CBP's violation of our clients' rights. This raises serious concerns about government improperly invoking privilege to cover up wrongdoing," says Jenin Younes, a civil libertarian lawyer and president of the Arab-American Anti-Discrimination Committee, who is representing the nurse. "The court was right to unseal most of the redacted material so we can assess the extent to which the government behavior was improper."
Younes has stacked up a series of victories against CBP's electronic searches. Over the past few months, she sued on behalf of lawyer Jalal "Jay" Shehadeh and (non-Arab) journalist Max Blumenthal, both of whom had their phones seized at the airport by CBP without explanation. CBP tried to preempt a legal battle by giving their phones back almost immediately. Younes is still pressing to get information about what happened to their data.
Although CBP policy states that the agency will delete all data within 21 days unless there is "probable cause to believe the information contains digital contraband or evidence of a violation of law that CBP is authorized to enforce or administer," a 2018 lawsuit seemed to show that CBP was holding onto the data until someone bothered to demand its return.
Psychiatric nurse Muhammad Numaan Imam's case started similarly to Shehadeh's and Blumenthal's cases. CBP agents demanded to open his phone at the airport without explanation. He refused, arguing that patient emails and case-management software were protected by privacy laws. CBP then confiscated all of his and his wife Khadijah Mansoor's electronics. Almost immediately after Younes filed the suit on his behalf, CBP tried to argue that the case was moot because it was giving back the phone.
But Brinkema immediately agreed with Imam and Mansoor's "legitimate concerns about what was done with their electronic devices," ordering CBP to "explain why the devices of both plaintiffs were seized" and to provide sworn statements from "each person who handled any of the devices" describing exactly what was done to them.
On Monday night, the court published heavily redacted declarations from CBP Assistant Port Director Lauren Colgan, Department of Homeland Security (DHS) technician Caige McCabe, and CBP technician Ashlie Fisch.
"Mr. Imam and Ms. Mansoor presented valid, un-expired travel documents to CBP Officers in the primary inspection and were referred for secondary inspection," Colgan's declaration states. The next few sentences are blacked out. The declaration then recounts the couple explaining their early return from their anniversary vacation in Turkey and states that the CBP officer asked to open their electronics, without explaining why.
"Because of Mr. Imam's and Ms. Mansoor's refusal to provide access to their electronic devices, CBP informed Mr. Imam and Ms. Mansoor their devices would be detained to continue the border search," Colgan continues, noting that Port Director Christine Waugh signed off on holding the devices for more than five days, as CBP policy requires.
On October 17, a day after CBP seized the phones, it asked DHS headquarters for "technical assistance" with Imam's devices according to McCabe. "My examination of Mr. Imam's phone was limited to device specifications and high-level file-system structure," he states in the declaration. The next few sentences are blacked out. "I did not access or view the contents of Mr. Imam's laptop," McCabe continues. The next few sentences after that are also blacked out. "I did not access any medical information" on either the phone or laptop, McCabe concludes, stating that the devices were in his custody until he handed them back to CBP on October 21.
Fisch then received Imam's devices at CBP Laboratories and Scientific Services. Everything of substance in her declaration is redacted, beyond taking the devices on October 21 and sending them back to Washington Dulles Airport the next day. There is no unredacted explanation of what happened to Mansoor's devices.
Brinkema argued in her Tuesday order that only two sentences, both from Colgan's declaration, were legitimately blacked out. "Accordingly, the Court will unseal all other redacted information in the Declarations unless the defendants can show good cause why such information should not be unsealed," she wrote.
U.S. law gives border officers much wider authority to search for contraband in situations where normal police would need a warrant or probable cause under the Fourth Amendment. CBP argues that its powers extend to searching and seizing travelers' electronics without any explanation at all. Courts have given contradictory rulings on how far those searches can go, and the Supreme Court hasn't weighed in yet, leaving a gray area that CBP is happy to take advantage of.
Imam's case has resulted in "the most detailed explanation of what the government did with our clients' electronic devices—or it would be if so much wasn't redacted," Younes tells Reason. "I look forward to seeing the unredacted versions."
