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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Filed Under: cair, cbp, dhs, iphone


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  1. 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.


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