from the most-likely-place-to-find-plenty-of-privileged-information dept
A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they’d just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)
Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:
To facilitate his extensive travel, Mr. Malik applied for and received membership in CBP’s Global Entry Trusted Traveler Program (“Global Entry”). DHS approved him for Global Entry on or about November 2014 and approved his renewal in 2019.
To receive membership in Global Entry, Mr. Malik passed a layer of extremely thorough security checks conducted by DHS. Mr. Malik passed a DHS conducted background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices, a process that includes fingerprinting. He also passed an in-person interview with a DHS security officer.
Despite being a government-ordained “Trusted Traveler,” Malik was detained upon his return from a trip to Costa Rica. During his trip, he had communicated with clients using his law firm issued iPhone. The CBP officers told Malik he had been “randomly selected” for an “eligibility review.” Once they had him detained, they questioned him about his personal life, family, and immigration history.
More worryingly, they questioned him about his legal practice and clients, demanding to know who he was representing and which cases he had handled. Obviously, this involved plenty of litigation work involving the same agency now questioning him. Malik refused to answer those questions. That made the CBP unhappy, leading to the incident at the center of this lawsuit.
During interrogation, Officer Sullivan displayed anger to Mr. Malik when Mr. Malik would not reveal Privileged Information. In response to Mr. Malik’s assertion of privilege, Officer Sullivan asked Mr. Malik to place the iPhone on the table. Mr. Malik placed the iPhone on the table.
Officer Sullivan asked Mr. Malik to unlock the iPhone so that the digital contents could be inspected.
Mr. Malik explained to Officer Sullivan that the iPhone contains extensive Privileged Information and allows for the accessing of Privileged Information that is stored remotely. Mr. Malik told Officer Sullivan that he cannot consent to the search of the iPhone.
Texas bar rules prohibit divulging privileged information. Not that it mattered to the CBP officer, who took everything a disturbing step further.
In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.
Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.
As the lawsuit notes, the CBP is given broad discretion on device searches. It can perform basic or in-depth searches of phones without a warrant and with nothing more than reasonable suspicion evidence of a crime may be found on the devices. It also has some national security powers which give it even more leeway. However, there’s nothing reasonably suspicious about someone denying access to privileged communications, especially when doing so means they’re abiding by their legal obligations as an attorney, rather than shirking them to avoid further border control nastiness from federal officers with too much power and too little oversight.
Despite all this leeway, Malik says the CBP still violated its very permissive directives. It did not attempt to disconnect the phone from any network, which would have allowed it access to data in motion, rather than just data at rest. It did not make any effort to restrict its search to non-privileged information by use of a filter team. Instead, it seized Malik’s phone and searched its contents with it connected to the internet and without the aid of anything that would have steered it clear of information it had no business seeing. According to the lawsuit, the CBP is still in possession of the phone, nearly a month after it seized it.
As evidence of the illegal search, Malik states that he received a request for a verification code from FLYP (a call, text, and voicemail app) one day after he was forced to leave his phone in the CBP’s possession. This indicated the phone was still connected to the internet and the CBP had unlocked the device.
Two weeks after seizing the phone, the CBP finally got around to getting a filter team together. It sent an email to Malik demanding a list of clients and their contact info. Supposedly this was to identify who his clients were so the CBP wouldn’t access those communications. But, as Malik points out, he is forbidden from providing that information. Not only that, but identifying current and future litigants would compromise them and make them more susceptible to adverse actions by agencies opposing them or targeted by litigation.
Plaintiffs are prohibited from identifying such names because the identification for most, if not all the individuals, are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice.
Part of the Privileged Information contained on the iPhone and on the remote servers is identifiable only by a telephone number of the client. Telephone numbers of the clients are privileged and confidential and will lead to exposure of Privileged Information.
Filter team protocols suck when searches are performed by defendants in lawsuits filed by the lawyer whose phone they’ve seized.
CBP’s proposed filter team as implemented and as articulated in the Directive, creates the appearance of and potential for improprieties. The Directive authorizes CBP officers to rummage through attorney-client communications. The use of the filter team in these circumstances will chill the free flow of information between clients and lawyers.
Malik asserts a number of First and Fourth Amendment violations. The seizure and search of communications and other information protected by the First Amendment (“expressive content, associational information, and private information”) without reasonable suspicion of criminal activity is just one of the problems. The same lack of suspicion carries over the Fourth Amendment, which guards against “unreasonable” searches, no matter what their context.
In addition to findings in favor of his Constitutional claims, Malik is also asking for an independent team to be involved in the search of information on the iPhone and to be given the right to challenge any search that may result in privileged communications being accessed by the government. He also wants CBP blocked from searching the phone until his demands are met and a Special Master put in place to oversee the search. Finally, he asks for a permanent injunction blocking the government from searching the phone at all, which, if granted, would make the intermediate demands unnecessary.
From these allegations, it appears the CBP retaliated against the lawyer because he refused to break his code of ethics. And it appears CBP officers were willing to violate long-held ethics itself if this “Trusted Traveler” wouldn’t do it for them. This is the unsurprising side effect of giving border control agencies almost complete control over travelers and their possessions. When there are few restraints, very few will act with restraint. Hopefully a lawsuit like this will start nudging our borders back into Constitutional territory.
Filed Under: 4th amendment, adam malik, attorney client privilege, cbp, dhs, seizure, texas