Jalal “Jay” Shehadeh, once a Florida assistant state attorney, had no reason to think he was under government scrutiny. He traveled regularly without incident, was preapproved for expedited border processing through Global Entry, and had no trouble passing through Israel’s famously strict airport security while visiting relatives in the Palestinian territories. Yet on his return, U.S. Customs and Border Protection (CBP) detained him for four hours at Newark Liberty International Airport without any explanation and confiscated his cellphone.
“I’m sitting there, and no one is telling me why I’m in this room. It’s a surreal experience for an American to be brought into a back room upon reentry,” said Shehadeh, a New Jersey native who spent part of his childhood in the West Bank, to Reason. “It’s striking that a Palestinian who grew up in Palestine could clear border control in Tel Aviv in under ten minutes, while this is what happens when I come back to the United States.”
Under the border exemption to the Fourth Amendment, the government may search travelers entering the country for contraband. Courts remain divided over whether this power extends to travelers’ electronic data, and while the Supreme Court contemplates weighing in on the issue, CBP has grown increasingly brazen in asserting this authority. From April through June of this year, CBP conducted a record-breaking 14,899 electronic border searches.
This week, both Shehadeh and Ph.D. student Thomas Kennedy have sued CBP to recover their phone data. Although the two plaintiffs did not know one another beforehand, their cases bear remarkable similarities. Each is a U.S. citizen living in Florida, each is outspoken politically, each was returning from the Middle East, and each had their phones seized despite a prior warning about attorney-client privileged material. They seek not only the return of their property but the deletion of any copies the agency may have produced.
Attorney-client privilege—an age-old safeguard of privacy—bars the government or anyone else from prying into conversations between lawyers and their clients. Nevertheless, CBP has continued to seize and inspect handheld devices belonging to attorneys.
There are signs that the current administration has specifically targeted lawyers for these searches. Amir Makled, a Michigan-based defense attorney whose phone was searched last year, recalled a CBP agent opening with, “We know you’re an attorney, and we know you handle high-profile cases.” Earlier this year, an immigration attorney uncovered a Department of Homeland Security “watch list” that contained only immigration lawyers’ names.
Kennedy, an Argentinian-American scholar focusing on immigration and surveillance, works with a Miami immigration law firm by coordinating legal matters. In a sense, his role placed him on the opposite side of Shehadeh’s position. Kennedy sued the state in 2022, alleging retaliation after he interrupted a speech by Republican Gov. Ron DeSantis. After returning from a trip to Egypt—via Turkey—he was flagged by an automated border kiosk at Miami International Airport and detained by CBP.
When Kennedy refused an initial phone search, officers escorted him to a back room and warned, “You can either hand it over to us now and keep this simple, or we’ll take your phone, and this process will be longer, and we’ll hold the device indefinitely.” (CBP’s own guidelines say devices should be held for no more than five days.) The agents seized his phone and returned it after two hours. Kennedy is unsure what was done with his device while in CBP custody, and several online platforms have since shown him login alerts from unfamiliar users.
Shehadeh and Kennedy are pressing CBP to produce any data copies in their possession—and, in Shehadeh’s case, the device itself—under Rule 41(g), which requires the government to return seized property no longer needed for a criminal proceeding. They cite as a precedent the success of journalist Max Blumenthal, whose electronics were seized by CBP after he attended the funeral of Ayatollah Ali Khamenei in Iran. (Blumenthal and Shehadeh share counsel from the American-Arab Anti-Discrimination Committee.) Although CBP attempted to moot Blumenthal’s case by arguing it had already returned the phone, a judge allowed Blumenthal to pursue discovery to determine precisely what the government did to his data.)
Kennedy also maintains that he faced retaliation for First Amendment-protected activity. He states that CBP officers asked, without prompting, whether he practiced immigration law and aggressively questioned the contents of his suitcases—an assortment of materials related to his critical examination of the Iranian revolution, a book on Israeli military technology, and some vintage Egyptian magazines that Kennedy bought “because they looked cool.” He contends these inquiries were a pretext to suppress his speech and his legal work.
“It’s ludicrous, especially given that Egypt remains the second-largest recipient of U.S. military aid. They pressed me about my reasons for traveling there; at a certain point I replied that I wanted to understand what my tax dollars are purchasing in Egypt,” Kennedy told Reason, noting that Turkey is also a close ally of the United States. “I’d like to move about as a citizen in a supposedly free, open society without impediment. Are we, perhaps, a pre-revolution Cuba from twenty years ago, where leaving the country was nearly impossible?”
Shehadeh faced a more ambiguous rationale for his detention. This was the first time he’d encountered secondary screening at the border. Although the initial officer claimed he had been selected for a “random customs check,” Shehadeh says the agents performed only a cursory search of his belongings and asked little about his West Bank time. Instead, they kept him waiting long enough to miss a connecting flight, shuffling him from one agent to another.
He suspects his political work was the reason behind the delay. Shehadeh serves on the board of the Palestinian American Bar Association, and his wife, Katherine Giannamore, is currently pursuing an ethics complaint against a federal judge for alleged anti-Muslim and anti-Palestinian bias.
In the final exchange, the agents asked Shehadeh to identify which of the apps on his phone were protected by attorney-client privilege and which could be searched. An agent began to say, “We’re looking for evidence of—” before he cut her off. “It doesn’t matter what you’re looking for. My phone contains attorney-client privileged information, so you can’t examine it. That’s the core of the issue,” he recounted to Reason. The CBP subsequently seized the device and released him.
CBP’s internal rules state that when a device is protected by attorney-client privilege, officers should seek clarification about which data are privileged and consult with the associate/assistant chief counsel’s office regarding how to segregate them from the rest. One earlier officer had suggested that CBP counsel would be able to inspect attorney-client privileged material, implying no obstacle to the search. Kennedy, for his part, says no one asked follow-up questions after he disclosed that some messages could be privileged.
In a statement to Reason, a CBP spokesperson said that electronic searches are conducted to detect digital contraband, content related to terrorism, and information pertinent to visitor admissibility, all of which play a vital role in national security. The spokesperson did not address the lawsuits.
Jenin Younes, national legal director for the American‑Arab Anti‑Discrimination Committee and the lawyer for both Shehadeh and Blumenthal, said her aim is to secure a judicial ruling that prohibits such searches under the Fourth Amendment and raises First Amendment concerns as well. The present setup, she argued, grants the government limitless access to individuals’ property and their most intimate thoughts and ideas.
The dispute could reach a pivotal point in the case of George Anibowei, an immigration attorney who has had his phone searched on five occasions. He has petitioned the Supreme Court to hear his case. On Tuesday, the Supreme Court ordered the government to respond to Anibowei’s petition by October 29, signaling that the court may be prepared to take up the matter. Younes filed a brief for Blumenthal in support of Anibowei’s case.
“The government asserts the authority to search the phone of every American for any or no reason beyond the fact that they have chosen to work, travel, or visit family outside the country,” she wrote. “Americans deserve clarity about how extensively their electronic devices may be searched at the border, and they deserve a ruling from this Court that the Fourth Amendment promises that our persons, houses, papers, and effects will be shielded from unlawful government intrusion.”
