Customs and Border Protection (CBP) maintains it has the authority to inspect Americans’ private data without a warrant when they enter the United States. Yet after a judge required clarification for one such search, the agency is now seeking to avoid scrutiny by leaning on its own data-privacy claims.
On Friday, Judge Leonie M. Brinkema of the Eastern District of Virginia issued an order directing CBP to justify the seizure of a local psychiatric nurse’s phone and laptop at Washington Dulles International Airport. CBP argued that the court should seal this material from both the public and the nurse to protect “privileged law enforcement information.”
Brinkema initially allowed CBP to file parts of its response in a sealed, ex parte manner, meaning that neither the public nor the nurse would have access. After reviewing the filings, the judge on Tuesday afternoon stated that most of the redacted material is not privileged information and should not be sealed. She gave CBP until noon on Thursday to raise objections 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-liberties attorney and president of the Arab-American Anti-Discrimination Committee, who represents the nurse. “The court was right to unseal most of the redacted material so we can evaluate how improper government conduct may have been.”
Younes has secured a string of courtroom victories challenging CBP’s electronic searches. In recent months she sued on behalf of attorney Jalal “Jay” Shehadeh and (non-Arab) journalist Max Blumenthal, both of whom had their phones seized at the airport by CBP without explanation. CBP attempted to head off litigation by returning their devices almost immediately. Younes continues to push for information about what happened to their data.
Although CBP policy states that data will be deleted within 21 days unless there is “probable cause to believe the information contains digital contraband or evidence of a law violation that CBP is authorized to enforce or administer,” a 2018 lawsuit appeared to show that the agency held onto the data until someone demanded its return.
The case of psychiatric nurse Muhammad Numaan Imam began similarly to the others. CBP agents demanded permission to open his phone at the airport without explanation. He refused, arguing that patient emails and case-management software are protected by privacy laws. CBP then took all of his and his wife Khadijah Mansoor’s electronic devices. Shortly after Younes filed suit on his behalf, CBP attempted to argue that the case was moot because they were returning the phone.
But Brinkema immediately sided with Imam and Mansoor’s legitimate concerns about what happened to 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” detailing precisely what was done to them.
On Monday night, the court released 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 following sentences are blacked out. The declaration then recounts the couple explaining their early return from their anniversary vacation in Turkey and notes that the CBP officer asked to open their electronics, without offering a reason.
“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 the seizures, CBP 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 several sentences are redacted. “I did not access or view the contents of Mr. Imam’s laptop,” McCabe adds. The following sentences are also redacted. “I did not access any medical information” on either the phone or laptop, McCabe concludes, noting that the devices were in his custody until he returned them to CBP on October 21.
Fisch then received Imam’s devices at CBP Laboratories and Scientific Services. Much of her declaration is redacted, aside from confirming the devices were taken on October 21 and sent back to Washington Dulles Airport the following 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 grants border officers broad authority to search for contraband in situations where ordinary police would require a warrant or probable cause under the Fourth Amendment. CBP contends its powers extend to searching and seizing travelers’ electronics without any explanation. The judiciary has issued conflicting rulings on how far these searches reach, and the Supreme Court has yet to weigh in, leaving a gray area that CBP is eager to exploit.
Imam’s case has yielded “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.”
