Legal Issues

by Tim Cushing


Filed Under:
cair, cbp, dhs, iphone



After Being Hit With A 'Motion For Return Of Property,' Gov't Agrees To Delete Data Copied From A Traveler's Phone

from the sometimes-the-best-hand-is-the-one-you-force dept

A couple of months ago, Rejhane Lazoja, an American Muslim, sued (sort of... ) the DHS over the search of her iPhone at the border. According to her allegations, CBP officers detained her and demanded she unlock her phone for them. She refused. The CBP seized her phone and searched it anyway, copying all the data it could from her device. It returned the phone to her over three months after it had taken it.

Lazoja didn't allege civil rights violations in her courtroom motion. In fact, it wasn't even technically a lawsuit. Instead, with the help of CAIR, Lazoja filed a Rule 41(g) motion -- something normally used to challenge seizures and forfeitures. In this case, Lazoja wanted her data back -- the data CBP had copied from her phone.

Lazoja leveraged CBP's own policies against it, pointing out its internal guidelines say seized data must be destroyed unless it is determined there's probable cause to retain it. Since this search occurred at the border, it's safe to say the CBP did it because it could, not because it could be justified under the more-stringent standard required further inland.

Apparently, the CBP agrees with this assessment. Or, at least, it has decided this isn't the hill it's going seek precedent on. As Cyrus Farivar reports for Ars Technica, the government has agreed to delete -- i.e., "return" -- Lazoja's phone data.

An American Muslim woman who two months ago asked a federal judge to compel border officials to erase data copied from her iPhone 6S Plus has settled her lawsuit with the government—federal authorities have now agreed to delete the seized data.

This little legal hack may come in handy for millions of travelers and visitors who encounter the CBP and its Constitutionally-unfriendly border search activities. There's been a steady exponential increase in device searches over the last few years, all performed under the guise of greater national security. The CBP has been unable to justify this increased need to paw through people's digital goods, but a long list of policies, law changes, and court decisions has ensured it will likely never need to explain itself to the general public.

With this motion, plaintiffs can at least attempt to force CBP to delete data it has harvested from their devices, as it's unlikely every one of its thousands of digital border searches can meet the probable cause standard to retain seized data. Anyone not forcing the CBP's hand should probably just assume their data resides on a government hard drive somewhere, collecting digital dust and waiting for an enterprising hacker or ill-willed government employee to take advantage of it.


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  • identicon
    Anonymous Coward, 19 Nov 2018 @ 7:07am

    I hope this is enforced

    If the government says that it complies, yet keeps copies and uses them later, there should be some kind of punishment. I suggest banning the agency that took the image and any that used it after the court case. Of course, that won't ever work.

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

    • identicon
      Paul Brinker, 19 Nov 2018 @ 9:26am

      Re: I hope this is enforced

      The punishment is quite simple, the courts should ignore evidence under fruit of the poison tree rules.

      This should also give a defensive to parallel construction if they try to charge her in the future and she can show they got the information from her data.

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

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 11:08am

        Re: Re: I hope this is enforced

        This should also give a defensive to parallel construction if they try to charge her in the future and she can show they got the information from her data.

        How would she ever be able to show that?

        And what if there are no charges, just (for example) extra harassment at the border?

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

        • icon
          Oblate (profile), 19 Nov 2018 @ 11:41am

          Re: Re: Re: I hope this is enforced

          And what if there are no charges, just (for example) extra harassment at the border?

          Since extra harassment (on top of the typical harassment she's already subject to) can apparently be done with impunity, it's pretty much guaranteed.

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

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 10:58am

      Re: I hope this is enforced

      How about a simpler and shorter punishment. We disband the agency.

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

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 7:38am

    >With this motion, plaintiffs can at least attempt to force CBP to delete data it has harvested from their devices,

    What about the copies they sent to the other TLA's?

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

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 7:59am

    "federal authorities have now agreed to delete the seized data"


    LOL - and if you believe that I have a bridge you may be interested in purchasing for a minimal price. Surprise your friends and family with your purchase of a slightly used bridge today! Call now.

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

  • icon
    That One Guy (profile), 19 Nov 2018 @ 8:57am

    'No really, pinky-promise we did!'

    An American Muslim woman who two months ago asked a federal judge to compel border officials to erase data copied from her iPhone 6S Plus has settled her lawsuit with the government—federal authorities have now agreed to delete the seized data.

    Now, show of hands class, given their past actions, including what lead to this lawsuit, who thinks they actually followed through?

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

  • icon
    That Anonymous Coward (profile), 19 Nov 2018 @ 10:15am

    CBP will totally delete their copy, however it will remain in the dossier we maintain on every citizen looking for Unamerican activities we can punish them for.

    While this might sound like a win, with all of the failed (read nonexistent) oversight there is little doubt in my mind the data was distributed well outside of CBP into the hundreds of secret databases.

    Its not like we've seen time and time again that illegal datasharing has been happening, information isn't redacted like they are supposed to, it is all in a haystack that does nothing to make us safer... but show up to protest Trump or a bank and the fusion centers can provide a deep dive in to every grandma carrying a sign.

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

    • icon
      Bamboo Harvester (profile), 19 Nov 2018 @ 10:26am

      Re:

      Exactly. CBP will delete the *original copy*. All other copies will remain in the Federal databases.

      They're going to handle this like they do DNA of rape victims. They "delete" the local copy, but the copy the State holds remains on file - but they promise they'll never check it against a *criminal* sample.

      So, about that bridge....

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

  • identicon
    bob, 19 Nov 2018 @ 11:05am

    that escalated quickly.

    Granted a promise from the CBP is not worth much, but the initial responses in these comments are bordering on tin foil hat conspiracy with talk of secret databases and all the other agencies.

    Am I not be skeptical enough?

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

    • identicon
      James T, 19 Nov 2018 @ 11:59am

      Re: that escalated quickly.

      Well tin foil hat aside. It's almost a foregone conclusion that they made a few different copies of this, and they will delete some of them.

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

      • identicon
        Paul Brinker, 19 Nov 2018 @ 5:05pm

        Re: Re: that escalated quickly.

        As I said above, this is more about legal protection then the data itself. If she has a court order for the destruction of the data and at a later date they attempt to use part of that data or something that was found through use of the data, then she now has a defence against the agency in question.

        The reason everyone is saying only some copies will be deleted is the same reason we have so many criminal databases that update each other. You get your record expunged and yet it keeps popping up because each database is ran by its own group for their own reason and some dont care about bad data or the court order did not state the FBI had to delete the record, only the DOJ.

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

  • icon
    ECA (profile), 19 Nov 2018 @ 12:11pm

    How do you Prove this?

    How many copies have been sent around and used on Many other computers??

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

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 7:01pm

    "Okay, so we deleted the copy of data we made from your phone."

    "But we're not saying anything about the copies of the copy."

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

  • icon
    Coyne Tibbets (profile), 19 Nov 2018 @ 7:17pm

    Citizen 1, CBP probably 300+

    CBP said they were going to delete "the copy?" Well, they might delete the copy in Flat, Alaska. They're keeping the rest.

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


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