Americans who say their phones and laptops were seized by US border agents filed a lawsuit in Massachusetts this week, arguing that their First and Fourth Amendment rights had been violated when their electronic devices were searched without a warrant.
Eleven plaintiffs, including journalists, a military veteran, an independent filmmaker, and a NASA engineer, contend that they were detained at the US border, coerced by Homeland Security agents, and subjected to illegal, suspicionless searches. Several of the plaintiffs are Muslims and people of colour, at least one case involves allegations of physical force, and in another, a sick child was allegedly detained along with her parents for six hours at the US-Canadian border.
The group is represented by attorneys with the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). The lawsuit seeks injunctive relief — a court order demanding the US government cease the kinds of warrantless searches described — as well as formal declaration by the Department of Homeland Security that its policies and practices violated the plaintiffs’ constitutional rights.
“The government cannot use the border as a dragnet to search through our private data,” ACLU attorney Esha Bhandari said in a statement. “Our electronic devices contain massive amounts of information that can paint a detailed picture of our personal lives, including emails, texts, contact lists, photos, work documents, and medical or financial records. The Fourth Amendment requires that the government get a warrant before it can search the contents of smartphones and laptops at the border.”
In addition to the Fourth Amendment concerns, the attorneys argue that a regime of suspicionless searches has and will have a chilling effect on free speech and the right to assembly. Regarding the First Amendment issues at hand, Bhandari told Gizmodo: “People will think twice about who they communicate with and what they say if they know that the government can simply search through their phones and see all of that information — private communications, which can reveal not only the content of the communications, but also your associates, your contact lists, the people you’re in touch with.”
Several of the incidents described by the complaint occurred in the final months of President Barack Obama’s term, when both the ACLU and EFF say they experienced a dramatic uptick in the number of complaints filed by citizens regarding laptop and mobile phone searches.
That number has increased even more under the Trump administration, they said. If the first half of the fiscal year 2017, US customs and border agents conducted nearly 15,000 searches of electronic devices — a figure that’s 50 per cent higher than during the same period of time last year, and three times higher than two years ago.
Below are a few of the stories shared by the plaintiffs, two of whom spoke with reporters by phone on Wednesday, as well as a copy of the complaint filed hours earlier with the US District Court for the District of Massachusetts.
The office of the US Customs and Border Protection did not respond to a request for comment. We’ll update if they do.
Sidd Bikkannavar’s detention by Customs and Border Protection (CBP) agents was widely reported earlier this year. An engineer at NASA’s Jet Propulsion Laboratory (JPL), Bikkannavar was carrying a locked mobile phone belonging to his employer on January 31 when he arrived in Houston from Santiago, Chile. As he passed through customs, he was detained; CBP agents ordered him to surrender his phone and the password to unlock it. The phone belonged to NASA, as indicated by the JPL barcode and asset tag on the back.
In an incident common at US airports today, Bikkannavar’s phone was taken by the agents to another room for roughly a half hour. A form he was handed stated: “Your electronic device(s) has been detained for further examination, which may include copying… CBP may retain documents or information… Consequences of failure to provide information: Collection of this information is mandatory… Failure to provide information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure.”
A native New Yorker, Akram Shibly’s film, Waiting at the Door — a “glimpse into the lives of Syrian refugees in Jordan and their ability to rebuild hope despite having lost everything” — won the SUNYWide Film Festival last year. As he was returning from filming in Canada he was stopped by border agents in January while crossing the Lewiston-Queenston Bridge in New York. He was allegedly told that if he had “nothing to hide” that he wouldn’t object to allowing border agents to search his phone. Fearing that refusing their demands would result in his indefinite detention, he complied.
But three days later, he was detained again on the same bridge and declined to hand over the device that had just been searched. “When I refused, three agents used force against me,” he said. “One agent grabbed me by the throat and began to choke me while another wrapped up my arms and legs. The third agent reached into my pants pocket and took my phone, all while I was in severe pain and fearing for my life.”
Once again, they took Shibly’s phone out of his sight, “only to later return it without any explanation for what they did with my mobile phone,” he said.
The Alasaad Family
About two months ago, Ghassan and Nadia Alasaad were waiting to cross the US border from Quebec while returning from a five-day family vacation. Their 11-year-old daughter had fallen ill and was running a high fever, they said. According to the lawsuit, the family was detained by border agents for up to six hours. The agents confiscated their phones and demanded the passwords to unlock them. Mrs. Alasaad, a Muslim, requested that a female agent conduct the search because she did not want male agents to view the pictures on her phone of her and her daughter without their headscarves, which both she and her daughter wear in accordance with their religious beliefs. Waiting for a female agent to arrive, however, would have delayed getting her daughter medical treatment — and her temperature had risen higher during the detention. After the sixth hour in detention the Alasaads left, forced to abandon their phones.
According to the complaint, when the phones were eventually retrieved, media files were missing from Mr. Alassad’s phone, including a video of his daughter’s graduation.
Retired US Air Force Captain Diane Maye served 18 months of a decade-long military career in Iraqi and now — ironically — she is a professor of homeland security as well as global conflict studies. She was detained by Homeland Security agents for two hours at a Florida airport in June.
“Border agents confined me in a small room,” she said during a call Wednesday. “I watched them as they searched my laptop, then they took my phone for two hours, presumably searched it as well. As I sat in the interrogation room, I felt humiliated and violated.”
“I worried that border agents would read my emails messages and texts,” she continued. “This is my life and a border agent held it in the palm of his hand.” Ms. Maye joined the lawsuit, she said, because she believes the government shouldn’t have unrestrained power to invade the privacy of its citizens.
“I want to stop this from happening to anyone else,” she said.
Journalist Isma’il Kushkush has been detained and searched three times over the past year and a half. The first was in January 2016 in New York City. According to the complaint, Mr. Kushkush was returning from Stockholm where he’d been doing work involving refugees to complete his master’s thesis at Columbia Journalism School. During this incident, he was detained for three hours and his phones and computers were seized and searched.
A year later, Mr. Kushkush was returning from Israel, where he had completed an internship with the Associated Press; after arriving in Washington D.C., the same laptop previously searched in New York was searched again, along with his phone, flash drives, digital camera, and notebooks. Less than two months ago, Mr. Kushkush was detained a third time in Vermont after returning from Middlebury College in Quebec where he had attended a language program; he was held for three and a half hours.
The other plaintiffs identified by the complaint are: Suhaib Allababidi, Jérémie Dupin, Aaron Gach, Zainab Merchant, and Matthew Wright. You can read a copy of the complaint below.