First Amendment Group Wants Homeland Security To Turn Over Records On Phone Searches At Borders

Amid concerns about increased searches of electronic devices at U.S. borders and points of entry, a new lawsuit seeks to compel the Department of Homeland Security to make relevant records available to the public.

The lawsuit [PDF] was filed yesterday in federal court by the Knight First Amendment Institute, a joint venture of Columbia University and the Knight Foundation.

The Institute notes that since 2009, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement — both agencies under the DHS umbrella — have been authorized to search cellphones, computers, and other electronics devices of people entering the country. These searches are not limited to non-citizens, and the lawsuit contends they occur “without individualized suspicion.”

Following reports of increased searches since 2015 and a “marked increase in the first quarter of 2017,” the Institute filed an expedited Freedom Of Information Act request [PDF] with DHS on March 15. When the government failed to respond within the required 10-day window, the Institute filed the suit, asking the court to compel DHS’s compliance.

Knight’s original FOIA request asked for several pieces of data related to searches of electronics. First, it sought information about the number and reasons for each “search, detention, retention, or sharing of individuals’ electronic devices” since 2012, along with any accompanying documents for each instance. The request also asked for documentation of the policies guiding these searches, including the handling of privileged or sensitive materials, and anything relating to review or revision of these practices.

The non-profit also asked DHS for information related to any complaints filed about these device searches, and documents “reflecting policies, practices, and procedures concerning CBP’s anti-discrimination policy as applied to discretionary electronic device searches.”

In the lawsuit, Knight contends that “The indiscriminate search of Americans’ electronic devices at the border raises serious constitutional questions under both the First and Fourth Amendment. People today store their most intimate information on their electronic devices, reflecting their thoughts, explorations, activities, and associations. Subjecting that information to unfettered government scrutiny invades the core of individual privacy and threatens free inquiry and expression.”

The Institute argues that these searches may result in sensitive information being compromised, pointing to the reported 2015 detention of American photojournalist Kim Badawi. The lawsuit notes that while Badawi was held at a Miami airport, CBP officers looked through his private photos and read messages he’d exchanged with a Syrian refugee over WhatsApp.

“The public has been denied the information necessary to fully understand the government’s searches of electronic devices at the border,” reads the lawsuit. “These records are urgently needed to inform the ongoing debate over the wisdom and lawfulness of those searches.”