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 § 5.4.1.2. “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.

Filed Under: 4th amendment, border search, devices, motion to return property, rejhane lazoja, warrantless search


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  • icon
    hij (profile), 27 Aug 2018 @ 10:46am

    Walking honeypot

    If these folks are jacking phones like this, has there been any effort turn the tables with a special phone that can be used to track what has been done to it once it has been abducted by the border patrol?

    reply to this | link to this | view in chronology ]

    • icon
      justok (profile), 27 Aug 2018 @ 10:52am

      Re: Walking honeypot

      No. None. No effort. No one has ever tried that. Move along. Not possible.

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 27 Aug 2018 @ 4:52pm

        Re: Re: Walking honeypot

        How about a specially rigged, non-functional phone that will deliver a a small, but potent electrical charge when plugged into a computer?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2018 @ 10:55am

      Re: Walking honeypot

      ICE vs. ICE?

      The extraction equipment they use probably has all sorts of security flaws, as with any software that's had negligible outside review.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 27 Aug 2018 @ 11:18am

        Re: Re: Walking honeypot

        I am now wondering how good their virus scanning is. Would it detect the cutting edge of computer viruses, or is it running on an old Windows XP machine with 20 year old anti-virus?

        Wouldn't it suck if someone's phone was so infected with contagious malware, it was effectively a paperweight?

        Honeypots, indeed.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Aug 2018 @ 11:58am

          Re: Re: Re: Walking honeypot

          If you look at the history of virus scanners, a lot of them miss viruses, and also, a lot of them have had exploitable security bugs. By trying to handle more and more obscure things, they increase their attack surface.

          reply to this | link to this | view in chronology ]

          • identicon
            John Smith, 27 Aug 2018 @ 1:21pm

            Re: Re: Re: Re: Walking honeypot

            Is the plural of "Vius" "virii?"

            If not, it should be.

            (Awaits 137 responses that devolve into an internet argument).

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Aug 2018 @ 11:59am

          Re: Re: Re: Walking honeypot

          Windows XP? Try Windows CE; that's much more likely.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2018 @ 11:12am

      Re: Walking honeypot

      What can be done is to use something like sparkly nail polish, that is something that generate a random pattern, to mark thing inside the phone, and take and keep a photograph somewhere safe. If the phone comes back with the marks missing, of with the marks being different, the one knows what has been removed or changed. A blink comparison between two photos is a very sensitive test for differences, it is how astronomers used to detect asteroids and planets in fields of thousands of stars.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Aug 2018 @ 11:27am

        Re: Re: Walking honeypot

        Change the country doing the illegal seizing with almost any other country in the world and ask yourself if it changes anything.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Aug 2018 @ 12:10pm

          Re: Re: Re: Walking honeypot

          All that that is intended to do is detect if there have been physical modifications to you equipment, and which test points, jtag and similar interfaces have been connected to. All useful stuff when you pass the phone onto a security researcher for detailed analysis.

          reply to this | link to this | view in chronology ]

  • identicon
    Jordan, 27 Aug 2018 @ 11:43am

    Great idea

    A great product would be malware you install on your phone that destroys the computers used to store the data. You could even use it as a threat..."sure take my phone, enjoy the viruses"...

    Only in the scifi world...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2018 @ 12:04pm

      Re: Great idea

      I can just imagine "Sure officer, here's my phone. But you might want me on hand if you attempt to plug it into any other device... it's not exactly a stock phone."

      End result: the phone gets incinerated and the owner gets indefinitely incarcerated for attacking the US government.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 27 Aug 2018 @ 11:47am

    Why search phones?

    Have any terrorists ever been caught by searching their phone?

    Possibly some (stupid) drug dealers.

    Anybody smart with nefarious plans wouldn't have anything incriminating in their phone, or any online account associated with themself or their phone.

    This is only going to harass innocent people. Catch a few stupid people for unimportant crimes. They would probably would have gotten caught anyway.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 27 Aug 2018 @ 11:50am

    SSDD

    "Conservative" judge is code for "judge that finds in favor of invasive government practices most of the time". There is no area of our lives or bodies that belongs to us and us alone. This is a just a fraction of liberties they've assumed and that all of us have been deprived of.

    Keeping a snapshot of our lives just in case it may be used against us at some point in the future is another among many powers that they shouldn't have, that the founders warned of and that our constructionist checks and balances on the bench have completely ignored.

    Any excuse, near a border, at an airport, having a baby, phamacutical drugs that make people feel "too good", using too much electricity being within range of a cell tower where a crime may have been committed, being in a car, traveling on a freeway that is frequently used by criminals (all of them) ... the list goes on and on.

    Our representatives deprive us of our rights at a pace impossible to challenge. And when it does make its way into a courtroom the arbitors of justice almost always find in favor of the most powerful party which in most cases is the government.

    When I read another of these articles I'm not surprised in the least. I'm not surprised when a lawyer must exhaust every constitutional right in an attempt to preserve the rights guaranteed on paper but almost never in practice.

    reply to this | link to this | view in chronology ]

    • icon
      Zgaidin (profile), 27 Aug 2018 @ 9:27pm

      Re: SSDD

      And when it does make its way into a courtroom the arbitors of justice

      I initially read that as abattoirs of justice. Doesn't actually change much...

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Aug 2018 @ 12:50pm

    'No really, don't let me catch you doing it for the 201st time.'

    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.”

    With how many spineless judges there are basically giving CBP(among others) a pass on anything they do, the temptation to explain that they do have probable cause, and it's 'Because we can, screw you' must be intense.

    I mean it's not like the judges overseeing the cases would have the guts to do anything about it if they were that blatant, and rubbing the gutlessness of the judges in their faces would probably be rather entertaining when they're not screwing over whatever poor sod catches their eye so at this point you almost have to congratulate CBP on their self-restrain in that way, even if they show none in the other parts of their jobs.

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 27 Aug 2018 @ 12:57pm

    Also, there may be saucy photos on the phone of her without her hijab, and she cannot be seen without it by males who are not members of her family.

    https://www.engadget.com/2018/08/25/us-customs-lawsuit-copied-iphone-data/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2018 @ 2:28pm

      Re:

      True. And if a non-family male sees it, he might lose all control of himself and attack someone. That would clearly be the phone owner's fault and subject her to stoning.

      /s

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 27 Aug 2018 @ 4:55pm

    Court: The court finds in favor of Miss Lazoja. The government is hereby ordered to destroy any data in its possession that was copied from Miss Lazoja's phone.

    Government: No problemo, we'll do it immediately. [wink, wink, nudge, nudge]

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 27 Aug 2018 @ 10:28pm

    I suppose...

    we could get burner phones to take across the border and load them up with Goatse photos.

    I told you not to look at the data on my phone.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Aug 2018 @ 5:38am

    It doesn't matter if she's muslism or not.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Aug 2018 @ 6:47am

    If her data is "property" that has to be returned, wouldn't that recognize other forms (music) of data as property, which could then be classified as stolen?

    reply to this | link to this | view in chronology ]

  • identicon
    Jeff Anderson, 28 Aug 2018 @ 7:33am

    Proof of destruction of data

    How does one go about proving that data has been destroyed with no copies remaining?

    reply to this | link to this | view in chronology ]


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