American Muslim Challenges Warrantless Border Device Search From An Unexpected Legal Angle
from the may-not-work,-but-definitely-worth-a-try dept
There’s more than one way to skin the Fourth Amendment cat. A person who feels her rights were violated by the seizure and search of phone data at the border is sidestepping the expected civil rights lawsuit to expedite the deletion of the seized phone contents. Cyrus Farivar of Ars Technica has more details:
An American Muslim woman has formally asked a federal judge to force border officials to delete data copied from her iPhone 6S Plus, months after it was seized from her when she landed at Newark International Airport in February 2018 while returning from a trip abroad.
However, attorneys for the woman, Rejhane Lazoja, have taken the unusual step of not bringing a run-of-the-mill civil lawsuit.
Instead, in federal court in New Jersey on Wednesday, her attorneys filed what’s called a Rule 41(g) Motion, otherwise known as a “Motion to Return Property.”
This motion is normally used in criminal cases to argue for the return of property seized by the government. Lazoja was never accused of a crime, nor was she given any justification for the phone search. Her phone was returned to her intact 130 days[!] after it was seized, so she technically has her property back already. But with the help of the Council on American-Islamic Relations (last seen challenging the TSA’s suspicionless surveillance program “Quiet Skies”), Lazoja is hoping to force the federal government to delete any of her data it still has in its possession.
The motion [PDF] details Lazoja’s experience with US customs officials, who took her into a room and demanded she unlock her phone for them. She refused, so the CBP seized it, giving her a receipt for her phone and sent her on her way without her personal property. Lazoja alleges a number of Constitutional violations and cites recent phone-related Supreme Court decisions, but it’s unlikely these arguments will be availing, what with the courts’ deference to the government’s assertions that border security trumps individual rights.
What may find a legal foothold is Lazoja’s arguments centering on seizure law and the CBP’s policies, which say it must state a reason for holding onto personal data it has pulled from searched devices.
Pursuant to CBP’s own policies, if Defendants, their agents and employees do not assert probable cause to seize a device or the information it contains, “any copies of the information held by CBP must be destroyed.” Ex. 3 at § 184.108.40.206. “Upon this determination, the copy of the information will be destroyed as expeditiously as possible, but no later than seven (7) days after such determination unless circumstances require additional time, which must be approved by a supervisor and documented in an appropriate CBP system and which must be no later than twenty-one (21) days after such determination.”
With the phone not being returned for more than three months, it’s safe to assume the data the CBP pulled from it was around for at least that long, if it still doesn’t reside on a government hard drive somewhere. The government has no plausible reason to retain this data, but if there’s no pressure to delete it, it might hang onto it indefinitely.
The CBP is performing more forensic searches of devices at the border than ever before. Growth has been exponential over the past couple of years, suggesting the new normal is demands for passwords, seized devices, and data dumps. If her motion is successful, it may act as a deterrent against future expansion of invasive searches, if only because the CBP will be forced to provide the court with some articulable reason for holding onto the data.