Case: 1:17-cv-11730 As of: 04/14/2020 02:29 PM EDT 1 of 21
APPEAL,STAYED
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:17−cv−11730−DJC

Alasaad et al v. Duke et al Assigned to: Judge Denise J. Casper Case in other court: USCA − First Circuit, 20−01077
USCA − First Circuit, 20−01081 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 09/13/2017 Date Terminated: 11/21/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Ghassan Alasaad

represented by Aaron Mackey Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Email: amackey@eff.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz Electric Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Email: adam@eff.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari ACLU Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Email: ebhandari@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside ACLU Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Email: hhandeyside@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler

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ACLU Foundation of Massachusetts 211 Congress Street 3rd Floor Boston, MA 02110 (212) 519−7847 Email: nwessler@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope Electronic Frontier Foundation 815 Eddy Street San Francisco 94109 415−436−9333 Email: sophia@eff.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman ACLU of Massachusetts 211 Congress Street 3rd Flr. Boston, MA 02110 617−482−3170 Email: jrossman@aclum.org ATTORNEY TO BE NOTICED

Saira Hussain Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Email: saira@eff.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Suhaib Allababidi

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Sidd Bikkannavar

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY

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PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jeremie Dupin

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

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Aaron Gach

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Ismail Abdel−Rasoul agent of Isma'il Kushkush

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari

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(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Diane Maye Zorri

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zainab Merchant

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Mohammed Akram Shibly
Plaintiff Matthew Wright

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED
Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED
Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Mackey (See above for address)

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Nadia Alasaad

represented by Aaron Mackey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Esha Bhandari (See above for address) LEAD ATTORNEY

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PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Freed Wessler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sophia Cope (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff TechFreedom

represented by Matthew S. Shapanka Covington & Burling CityCenter 850 Tenth Street, NW Washington, DC 20001 202−662−5136 Fax: 202−778−5136 Email: mshapanka@cov.com ATTORNEY TO BE NOTICED

Saira Hussain (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Elaine Duke

represented by Annapurna Balakrishna U.S. Attorney's Office Civil Division One Courthouse Way Suite 9200 Boston, MA 02110 617−748−3111 Email: annapurna.balakrishna@usdoj.gov LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Michael Drezner U.S. Department of Justice Federal Programs Branch 1100 L. St. NW Room 12210 Washington, DC 20001 (202) 514−4505 Email: Michael.L.Drezner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney U.S. Department of Justice Federal Programs Branch 1100 L Street NW Room 11014 Washington, DC 20005 202−514−4520 Email: marsha.edney@usdoj.gov ATTORNEY TO BE NOTICED

Defendant Kevin McAleenan

represented by Annapurna Balakrishna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney (See above for address) ATTORNEY TO BE NOTICED

Defendant Thomas Homan

represented by Annapurna Balakrishna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney (See above for address) ATTORNEY TO BE NOTICED

Amicus
Constitutional Accountability Center 1200 18th Street, N.W., Suite 501 Washington, DC 20036 (202) 296−6889

represented by David J. Nathanson Wood & Nathanson, LLP 50 Congress Street, Suite 600 Boston, MA 02109 978−744−2695 Fax: 866−807−4618 Email: dnathanson@woodnathanson.com ATTORNEY TO BE NOTICED

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Amicus Brennan Center for Justice
Amicus Center for Democracy & Technology
Amicus R Street Institute
Amicus Knight First Amendment Institute at Columbia University Amicus Reporters Committee for Freedom of the Press

represented by Matthew S. Shapanka (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew S. Shapanka (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew S. Shapanka (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/13/2017 09/13/2017
09/13/2017
09/13/2017 09/13/2017 09/13/2017

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−6792927 (Fee Status: Filing Fee paid), filed by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Additional Attorneys for Civil Cover Sheet, # 3 Exhibit Category Sheet)(Rossman, Jessie) (Entered: 09/13/2017)
2 MOTION for Leave to Appear Pro Hac Vice for admission of Adam Schwartz, Sophia Cope, and Aaron Mackey Filing fee: $ 300, receipt number 0101−6793117 by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Affidavit Adam Schwartz, # 2 Affidavit Sophia Cope, # 3 Affidavit Aaron Mackey)(Rossman, Jessie) (Entered: 09/13/2017)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Esha Bhandari, Hugh Handeyside and Nathan Freed Wessler Filing fee: $ 300, receipt number 0101−6793523 by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Affidavit Esha Bhandari, # 2 Affidavit Hugh Handeyside, # 3 Affidavit Nathan Freed Wessler)(Rossman, Jessie) (Entered: 09/13/2017)
4 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (adminn, ) (Entered: 09/13/2017)
5 Summons Issued as to Elaine Duke, Thomas Homan, Kevin McAleenan. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Nici, Richard) (Entered: 09/13/2017)
6 NOTICE of Appearance by Matthew Segal on behalf of Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly,

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09/13/2017 09/21/2017 10/16/2017
10/20/2017 10/25/2017 10/27/2017 10/31/2017 12/15/2017 12/15/2017 12/21/2017 12/27/2017 01/09/2018 01/26/2018
02/01/2018

Matthew Wright (Segal, Matthew) (Entered: 09/13/2017)
7 AMENDED COMPLAINT against All Defendants, filed by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Rossman, Jessie) (Entered: 09/13/2017)
8 NOTICE of Appearance by Annapurna Balakrishna on behalf of Elaine Duke, Thomas Homan, Kevin McAleenan (Balakrishna, Annapurna) (Entered: 09/21/2017)
9 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 2 , 3 Motions for Leave to Appear Pro Hac Vice Added Adam Schwartz, Sophia Cope, Aaron Mackey, Esha Bhandari, Hugh Handeyside, and Nathan Freed Wessler. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) (Entered: 10/16/2017)
13 SUMMONS Returned Executed by Kevin McAleenan, Thomas Homan, Elaine Duke. (Attachments: # 1 Kevin McAleenan Summons, # 2 Elaine Duke Summons)(adminn, ) Modified on 11/16/2017 (adminn, ). (Entered: 11/16/2017)
10 NOTICE of Appearance by Michael Drezner on behalf of Elaine Duke, Thomas Homan, Kevin McAleenan (Drezner, Michael) (Entered: 10/25/2017)
11 Joint MOTION for Entry of Briefing Schedule by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Text of Proposed Order)(Schwartz, Adam) (Entered: 10/27/2017)
12 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 11 Motion for Briefing Schedule. Defendants' responsive pleading to be filed by 12/15/17. Plaintiffs' to file their response by 1/26/18. Briefs not to exceed 30 pages. (Hourihan, Lisa) (Entered: 10/31/2017)
14 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 12/29/2017) by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 12/15/2017)
15 MEMORANDUM in Support re 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Attachments: # 1 Exhibit A)(Drezner, Michael) (Entered: 12/15/2017)
16 Assented to MOTION to Modify Briefing Schedule by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Text of Proposed Order)(Schwartz, Adam) (Entered: 12/21/2017)
17 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 16 Assented to Motion to Modify Briefing Schedule. Given until 2/2/2018 to file amicus briefs. (McKillop, Matthew) (Entered: 12/27/2017)
18 Notice of Supplemental Authorities re 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Drezner, Michael) (Entered: 01/09/2018)
19 MEMORANDUM in Opposition re 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Bhandari, Esha) (Entered: 01/26/2018)
20 Assented to MOTION for Leave to File Reply by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 02/01/2018)

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02/02/2018 02/02/2018 02/02/2018 02/02/2018 02/02/2018 02/02/2018 02/05/2018 02/15/2018 02/20/2018 02/21/2018 02/21/2018 03/01/2018 04/23/2018
05/09/2018 05/10/2018 05/10/2018

21 Request for Oral Argument Letter/request (non−motion) from Plaintiffs . (Bhandari, Esha) (Entered: 02/02/2018)
22 Assented to MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiff's Opposition to Defendant's Motion to Dismiss by Constitutional Accountability Center. (Attachments: # 1 Text of Proposed Order Proposed Order)(Nathanson, David) (Entered: 02/02/2018)
23 MEMORANDUM of Amicus Curiae in Support of Plaintiff re 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Constitutional Accountability Center. (Nathanson, David) (Entered: 02/02/2018)
24 NOTICE of Appearance by Matthew S. Shapanka on behalf of Brennan Center for Justice, Center for Democracy & Technology, R Street Institute, TechFreedom (Shapanka, Matthew) (Entered: 02/02/2018)
25 AMICUS BRIEF filed by Brennan Center for Justice, Center for Democracy & Technology, R Street Institute, TechFreedom . (Shapanka, Matthew) (Entered: 02/02/2018)
26 AMICUS BRIEF filed by Knight First Amendment Institute at Columbia University, Reporters Committee for Freedom of the Press . (Albano, Jonathan) (Entered: 02/02/2018)
27 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 20 Motion for Leave to File Reply of not more than 15 pages by 3/2/18 by Elaine Duke, Thomas Homan, Kevin McAleenan. (Hourihan, Lisa) (Entered: 02/05/2018)
28 ELECTRONIC NOTICE Setting Hearing on Motion 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 3/16/2018 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 02/15/2018)
29 Assented to MOTION to Continue Hearing on Defendants' Motion to Dismiss by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 02/20/2018)
30 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 29 Motion to Continue Hearing Date (Hourihan, Lisa) (Entered: 02/21/2018)
31 ELECTRONIC NOTICE Resetting Hearing on Motion 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 4/23/2018 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 02/21/2018)
32 REPLY to Response to 14 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Drezner, Michael) (Entered: 03/01/2018)
33 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 4/23/2018 re 14 MOTION to Dismiss filed by Elaine Duke, Kevin McAleenan, Thomas Homan; Court heard arguments and took motion under advisement; if necessary a statement re recusal may be filed within two weeks. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Balakrishna, Bhandari, Drezner, Handeyside, Mackey, Schwartz, and Wessler) (Lovett, Jarrett) (Entered: 04/23/2018)
34 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER − The Court DENIES Defendants' motion to dismiss, D. 14.(Hourihan, Lisa) (Entered: 05/10/2018)
35 Judge Denise J. Casper: ELECTRONIC ORDER entered. Defendants to file their answers by 5/25/18.(Hourihan, Lisa) (Entered: 05/10/2018)
36 NOTICE of Scheduling Conference Scheduling Conference set for 6/18/2018 03:45 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 05/10/2018)

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05/10/2018 05/21/2018
05/21/2018
05/23/2018 05/24/2018
06/01/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/13/2018

37 Judge Denise J. Casper: ORDER entered. Standing Order Re: Courtroom Opportunities for Relatively Inexperienced Attorneys(Hourihan, Lisa) (Entered: 05/10/2018)
38 Transcript of Motion Hearing held on April 23, 2018, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 6/11/2018. Redacted Transcript Deadline set for 6/21/2018. Release of Transcript Restriction set for 8/20/2018. (Scalfani, Deborah) (Entered: 05/21/2018)
39 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/21/2018)
40 Assented to MOTION for Extension of Time to June 1, 2018 to File Answer by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 05/23/2018)
41 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 40 Motion for Extension of Time to Answer re 7 Amended Complaint, Elaine Duke answer due 6/1/2018; Kevin McAleenan answer due 6/1/2018. (Hourihan, Lisa) (Entered: 05/24/2018)
42 ANSWER to 7 Amended Complaint, by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 06/01/2018)
43 CERTIFICATION pursuant to Local Rule 16.1 . (Bhandari, Esha) (Entered: 06/11/2018)
44 CERTIFICATION pursuant to Local Rule 16.1 of Plaintiff Diane Maye. (Bhandari, Esha) (Entered: 06/11/2018)
45 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Ghassan Alasaad. (Bhandari, Esha) (Entered: 06/11/2018)
46 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Ismail Abdel−Rasoul. (Bhandari, Esha) (Entered: 06/11/2018)
47 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Jeremie Dupin. (Bhandari, Esha) (Entered: 06/11/2018)
48 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Matthew Wright. (Bhandari, Esha) (Entered: 06/11/2018)
49 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Mohammed Akram Shibly. (Bhandari, Esha) (Entered: 06/11/2018)
50 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Nadia Alasaad. (Bhandari, Esha) (Entered: 06/11/2018)
51 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Sidd Bikkannavar. (Bhandari, Esha) (Entered: 06/11/2018)
52 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Suhaib Allababidi. (Bhandari, Esha) (Entered: 06/11/2018)
53 CERTIFICATION pursuant to Local Rule 16.1 for Plaintiff Zainab Merchant. (Bhandari, Esha) (Entered: 06/11/2018)
54 CERTIFICATION pursuant to Local Rule 16.1 . (Drezner, Michael) (Entered: 06/11/2018)
55 Joint MOTION to Stay Scheduling Conference and Extend Deadline to File Joint Statement by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 06/11/2018)
56 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 55 Motion to Continue Scheduling Conference. (Hourihan, Lisa) (Entered: 06/13/2018)

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06/13/2018 07/09/2018 07/16/2018
07/20/2018

57 ELECTRONIC NOTICE OF RESCHEDULING Scheduling Conference set for 7/16/2018 02:45 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 06/13/2018)
58 JOINT SUBMISSION pursuant to Local Rule 16.1 Joint Statement and Proposed Discovery Schedule by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Bhandari, Esha) (Entered: 07/09/2018)
59 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Scheduling Conference held on 7/16/2018. Court hears from counsel on their positions for the scheduling of the case. Court takes matter under advisement. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Adam Schwartz, Esha Bhandari and Sophia Cope for the plaintiffs. Michael Drezner for the defendants.) (Hourihan, Lisa) (Entered: 07/18/2018)
60 Judge Denise J. Casper: ELECTRONIC ORDER entered: Having considered the parties' joint statement and discussion with counsel at the recent initial scheduling conference, the Court ORDERS as follows:

August 15, 2018: Deadline by which parties may continue to attempt to reach stipulations of fact.

August 30, 2018: Deadline for the exchange of initial disclosures. No formal discovery requests shall be served before August 30th.

December 30, 2018: Close of fact discovery concerning Defendants' policies and practices and Plaintiffs' standing. See D. 58 at 4.

January 14. 2019: Status conference at 3:30 p.m.

February 1, 2019: Deadline for Plaintiffs' motion for summary judgment.

March 1, 2019: Deadline for Defendants' opposition/cross−motion for summary judgment.

April 1, 2019: Deadline for Plaintiffs' opposition to Defendants' cross−motion for summary judgment/reply brief.

07/27/2018 08/15/2018 08/17/2018
08/17/2018
08/20/2018

(McKillop, Matthew) (Entered: 07/20/2018)
61 ELECTRONIC NOTICE of Hearing. Status Conference set for 1/14/2019 03:30 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 07/27/2018)
62 Joint MOTION for Extension of Time to August 30, 2018 to Attempt to Reach Stipulations of Fact by Elaine Duke, Thomas Homan, Kevin McAleenan. (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 08/15/2018)
63 Transcript of Scheduling Conference held on July 16, 2018, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 9/7/2018. Redacted Transcript Deadline set for 9/17/2018. Release of Transcript Restriction set for 11/15/2018. (Scalfani, Deborah) (Entered: 08/17/2018)
64 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 08/17/2018)
65 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 62 Motion for Extension of Time to August 30, 2018 to Attempt to Reach Stipulations of Fact by Elaine Duke, Thomas Homan, Kevin McAleenan (Hourihan, Lisa) (Entered: 08/20/2018)

Case: 1:17-cv-11730 As of: 04/14/2020 02:29 PM EDT 17 of 21

09/07/2018 09/07/2018 09/18/2018 09/18/2018 12/06/2018 12/12/2018
12/12/2018 12/12/2018 01/02/2019 01/04/2019
01/18/2019 01/22/2019
01/28/2019 02/01/2019

66 Joint MOTION for Protective Order by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Text of Proposed Order Proposed Agreed Protective Order)(Wessler, Nathan) (Entered: 09/07/2018)
67 NOTICE of Appearance by Marsha S. Edney on behalf of Elaine Duke, Thomas Homan, Kevin McAleenan (Edney, Marsha) (Entered: 09/07/2018)
68 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 66 Motion for Protective Order. (McKillop, Matthew) (Entered: 09/19/2018)
69 Judge Denise J. Casper: ORDER entered. PROTECTIVE ORDER. (McKillop, Matthew) (Entered: 09/19/2018)
70 First MOTION for Extension of Time to January 31, 2019 to Complete Discovery by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Handeyside, Hugh) (Entered: 12/06/2018)
71 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 70 Motion for Extension of Time to Complete Discovery. Fact discovery to be completed by 1/31/2019. Summary Judgment Motions to be filed by 3/1/2019. Opposition and Cross−Motion for Summary Judgment to be filed by 4/15/19. Plaintiffs' Opposition to Defendant's Cross−Motion for Summary Judgment and Reply to be filed by 5/15/19. Status Conference by telephone rescheduled to 2/14/19 at 2:30PM. Counsel to reach out to clerk for dial in instructions. Hearing on Cross−Motions for Summary Judgment set for 6/6/19 at 3:00PM. (Hourihan, Lisa) (Entered: 12/12/2018)
72 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 2/14/2019 02:30 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 12/12/2018)
73 ELECTRONIC NOTICE Setting Hearing on Cross−Motions for Summary Judgment. Motion Hearing set for 6/6/2019 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 12/12/2018)
74 MOTION to Stay Discovery by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 01/02/2019)
75 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 74 : Motion for stay allowed in part. Motion allowed for stay through 1/18/19 or whatever date the Department of Justice attorneys resume their usual civil litigation functions, whichever date is earlier. On or before 1/18/19, counsel to file status report or seek further stay if Department of Justice attorneys have not yet been able to resume their usual civil litigation functions. (McKillop, Matthew) (Entered: 01/04/2019)
76 STATUS REPORT (Joint) by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Wessler, Nathan) (Entered: 01/18/2019)
77 ELECTRONIC ENDORSEMENT re 76 Status Report filed by Nadia Alasaad, Jeremie Dupin, Mohammed Akram Shibly, Aaron Gach, Ghassan Alasaad, Suhaib Allababidi, Matthew Wright, Diane Maye, Zainab Merchant, Sidd Bikkannavar, Ismail Abdel−Rasoul. Stay allowed in part to the following extent. Stay continued through 2/1/19 or whatever date the Department of Justice attorneys resume their usual civil litigation functions, whichever date is earlier. On or before 2/1/19, counsel to file status report or seek further stay if Department of Justice attorneys have not yet been able to resume their usual civil litigation functions. (Hourihan, Lisa) (Entered: 01/22/2019)
78 NOTICE by Elaine Duke, Thomas Homan, Kevin McAleenan (Drezner, Michael) (Entered: 01/28/2019)
79 STATUS REPORT (Joint) by Elaine Duke, Thomas Homan, Kevin McAleenan. (Drezner, Michael) (Entered: 02/01/2019)

Case: 1:17-cv-11730 As of: 04/14/2020 02:29 PM EDT 18 of 21

02/05/2019
02/05/2019 02/05/2019 03/06/2019 04/03/2019 04/04/2019 04/09/2019 04/09/2019
04/10/2019
04/11/2019 04/30/2019 04/30/2019

80 ELECTRONIC ENDORSEMENT re 79 Status Report filed by Elaine Duke, Kevin McAleenan, Thomas Homan. Court adopts the schedule outlined in D. 79. Fact discovery to be completed by 3/22/19. Plaintiffs' motion for summary judgment to be filed by 4/30/19. Defendants' cross motion for summary judgment to be filed by 6/6/19. Plaintiffs' reply brief to be filed by 7/3/19 not to exceed 15 pages. Hearing set for 7/18/19 at 3:00PM. Status Conference set for 4/11/19 at 2:00PM. (Hourihan, Lisa) (Entered: 02/05/2019)
81 ELECTRONIC NOTICE Resetting Hearing on Cross Motions for Summary Judgment. Motion Hearing set for 7/18/2019 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 02/05/2019)
82 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 4/11/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. If counsel wish to participate by telephone, they should call the clerk for dial in instructions.(Hourihan, Lisa) (Entered: 02/05/2019)
83 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 4/9/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 03/06/2019)
84 Joint MOTION for Leave to File Excess Pages and Defendants' Unopposed Motion for Leave to File Reply by Elaine Duke, Thomas Homan, Kevin McAleenan.(Drezner, Michael) (Entered: 04/03/2019)
85 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 84 Motion for Leave to File Excess Pages. Summary judgment memoranda not to exceed 30 pages. Reply brief not to exceed 15 pages. (Hourihan, Lisa) (Entered: 04/04/2019)
86 MOTION for Leave to Appear Pro Hac Vice for admission of Saira Hussain Filing fee: $ 100, receipt number 0101−7628235 by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Declaration in Support)(Rossman, Jessie) (Entered: 04/09/2019)
88 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 4/9/2019. Summary Judgment Motions to be filed by 4/30/19. The Court amends D. 80 to allow defendants to file reply brief not to exceed 15 pages by 7/15/19. Plaintiff to file notice of change of name of one of the plaintiffs. If counsel have suggestions for sequence of oral argument for the 7/18/19 hearing, they can file notice with the Court by 7/11/19. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Esha Bhandari and Michael Drezner.) (Hourihan, Lisa) (Entered: 04/10/2019)
87 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 86 Motion for Leave to Appear Pro Hac Vice Added Saira Hussain. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) (Entered: 04/10/2019)
89 NOTICE of Agreed Name Change in Caption by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar et al. (Hussain, Saira) (Entered: 04/11/2019)
90 MOTION for Summary Judgment by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Memorandum ISO MSJ, # 2 Statement of Undisputed Material Facts ISO MSJ)(Bhandari, Esha) (Entered: 04/30/2019)
91 APPENDIX/EXHIBIT re 90 MOTION for Summary Judgment by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, #

Case: 1:17-cv-11730 As of: 04/14/2020 02:29 PM EDT 19 of 21

04/30/2019 05/01/2019 05/01/2019 06/06/2019 06/06/2019 06/06/2019
07/03/2019
07/03/2019 07/09/2019 07/10/2019 07/12/2019

14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22, # 22 Exhibit 23, # 23 Exhibit 24, # 24 Exhibit 25, # 25 Exhibit 26, # 26 Exhibit 27, # 27 Exhibit 28, # 28 Exhibit 29, # 29 Exhibit 30, # 30 Exhibit 31, # 31 Exhibit 32, # 32 Exhibit 33, # 33 Exhibit 34, # 34 Exhibit 35, # 35 Exhibit 36, # 36 Exhibit 37, # 37 Exhibit 38, # 38 Exhibit 39, # 39 Exhibit 40, # 40 Exhibit 41, # 41 Exhibit 42, # 42 Exhibit 43, # 43 Exhibit 44, # 44 Exhibit 45, # 45 Exhibit 46)(Bhandari, Esha) (Entered: 04/30/2019)
92 Assented to MOTION to Seal Exhibit #47 ISO MSJ by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Bhandari, Esha) (Entered: 04/30/2019)
93 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 92 Motion to Seal Exhibit #47 in support of Motion for Summary Judgment by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright (Hourihan, Lisa) (Entered: 05/01/2019)
95 CERTIFICATE OF CONSULTATION pursuant to LR 7.1 re 90 MOTION for Summary Judgment by Jessie J. Rossman on behalf of All Plaintiffs. (Rossman, Jessie) (Entered: 05/01/2019)
96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by Elaine Duke, Thomas Homan, Kevin McAleenan. (Attachments: # 1 Text of Proposed Order)(Edney, Marsha) (Entered: 06/06/2019)
97 MEMORANDUM in Support re 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Edney, Marsha) (Entered: 06/06/2019)
98 Statement of Material Facts L.R. 56.1 re 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Attachments: # 1 Exhibit A−Howe Decl, # 2 Exhibit B−Denton Decl, # 3 Exhibit C−2009 DHS PIA, # 4 Exhibit D−2009 ICE Directive, # 5 Exhibit E−2009 CBP Directive, # 6 Exhibit F−2018 CBP Directive, # 7 Exhibit G−Stipulated Facts, # 8 Exhibit H−2018 DHS PIA, # 9 Exhibit I−Defs. Resp. Interrogs, # 10 Exhibit J−Combined Pls. Resp. Interrogs, # 11 Exhibit K−DHS PIA, # 12 Exhibit L−Tsang Decl)(Edney, Marsha) (Entered: 06/06/2019)
99 Opposition re 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Plaintiffs' Reply in Support of Pl. Motion for Summary Judgment filed by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Pl. Response to Def. SUMF and Reply SUMF, # 2 Exhibit 49, # 3 Exhibit 50, # 4 Exhibit 51)(Bhandari, Esha) (Additional attachment(s) added on 7/8/2019: # 5 Sealed Exhibit 48) (McKillop, Matthew). (Entered: 07/03/2019)
100 Assented to MOTION to Seal Document 99 Opposition to Motion,, Exhibit 48 by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Bhandari, Esha) (Entered: 07/03/2019)
101 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 100 Motion to Seal Exhibit 48 in support of their motion for summary judgment and in opposition to Defendants' motion for summary judgment (Hourihan, Lisa) (Entered: 07/09/2019)
102 NOTICE by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright Joint Notice Regarding Oral Argument (Bhandari, Esha) (Entered: 07/10/2019)
103 MOTION for Leave to File Supplemental Statement of Undisputed Material Facts by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. (Attachments: # 1 Supplement, # 2

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07/15/2019 07/15/2019 07/18/2019
08/21/2019
08/21/2019 11/12/2019 11/12/2019 11/19/2019 11/21/2019 12/19/2019 12/20/2019 01/10/2020

Exhibit)(Hussain, Saira) (Entered: 07/12/2019)
104 REPLY to Response to 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Drezner, Michael) (Entered: 07/15/2019)
105 Statement of Material Facts L.R. 56.1 re 103 MOTION for Leave to File Supplemental Statement of Undisputed Material Facts filed by Elaine Duke, Thomas Homan, Kevin McAleenan. (Drezner, Michael) (Entered: 07/15/2019)
106 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 7/18/2019 re 90 MOTION for Summary Judgment filed by Nadia Alasaad, Jeremie Dupin, Diane Maye Zorri, Mohammed Akram Shibly, Aaron Gach, Ghassan Alasaad, Suhaib Allababidi, Matthew Wright, Zainab Merchant, Sidd Bikkannavar, Ismail Abdel−Rasoul, 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed by Elaine Duke, Kevin McAleenan, Thomas Homan. Court grants 103 Motion for Leave to File Supplemental Statement of Undisputed Material Facts. Arguments. Court takes under advisement 90 Motion for Summary Judgment; takes under advisement 96 Motion for Summary Judgment.(Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Adam Schwartz, Esha Bhandari, Hugh Hamdeyside, Nathan Freed Wessler, Sophia Cope and Saira Hussain for the plaintiffs. Michael Drezner and Marsha Edney for the defendants.) (Hourihan, Lisa) (Entered: 07/19/2019)
107 Transcript of Motion Hearing held on July 18, 2019, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 9/11/2019. Redacted Transcript Deadline set for 9/23/2019. Release of Transcript Restriction set for 11/19/2019. (Scalfani, Deborah) (Entered: 08/21/2019)
108 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 08/21/2019)
109 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER − The Court ALLOWS IN PART and DENIES IN PART Plaintiffs' motion for summary judgment, D. 90 and DENIES Defendants' motion for summary judgment, D. 96.(Hourihan, Lisa) (Entered: 11/12/2019)
110 Judge Denise J. Casper: ELECTRONIC ORDER entered. In light of the Court's ruling today on D. 90 and 96, the Court further orders as follows. Counsel for the parties shall confer and by November 19, 2019, file a joint statement indicating what, if any, further action the parties seek to have the Court take in regard to any relief sought, entering judgment or otherwise. (Hourihan, Lisa) (Entered: 11/12/2019)
111 JOINT STATEMENT of counsel regarding relief. (Wessler, Nathan) (Entered: 11/19/2019)
112 Judge Denise J. Casper: ORDER entered. JUDGMENT (Hourihan, Lisa) (Entered: 11/21/2019)
113 Assented to MOTION to Stay Proceedings for Attorneys' Fees and Costs by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright.(Bhandari, Esha) (Entered: 12/19/2019)
114 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 113 Motion to Stay Proceedings for Attorneys' Fees and Costs (McKillop, Matthew) (Entered: 12/20/2019)
115 NOTICE OF APPEAL 109 MMORANDUM AND ORDER, 112 JUDGMENT by Elaine Duke, Thomas Homan, Kevin McAleenan Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at

Case: 1:17-cv-11730 As of: 04/14/2020 02:29 PM EDT 21 of 21

01/10/2020 01/13/2020
01/13/2020 01/15/2020 01/15/2020

http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 1/30/2020. (Drezner, Michael) (Modified on 1/10/2020 to Correct Docket Text and CM/ECF Document Links) (Paine, Matthew). (Entered: 01/10/2020)
116 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 115 Notice of Appeal. (Paine, Matthew) (Entered: 01/10/2020)
117 NOTICE OF CROSS APPEAL as to 112 Judgment, 109 Memorandum & ORDER by Ismail Abdel−Rasoul, Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jeremie Dupin, Aaron Gach, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly, Matthew Wright. ( Filing fee: $ 505, receipt number 0101−8051533 (Fee Status: Filing Fee paid)) NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 2/3/2020. (Wessler, Nathan) (Entered: 01/13/2020)
118 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 117 Notice of Cross Appeal. (Paine, Matthew) (Entered: 01/13/2020)
119 USCA Case Number 20−1077 for 115 Notice of Cross Appeal filed by Nadia Alasaad, Jeremie Dupin, Diane Maye Zorri, Mohammed Akram Shibly, Aaron Gach, Ghassan Alasaad, Suhaib Allababidi, Matthew Wright, Zainab Merchant, Sidd Bikkannavar, Ismail Abdel−Rasoul. (Paine, Matthew) (Modified on 1/15/2020 to Correct Docket Entry Information) (Paine, Matthew). (Entered: 01/15/2020)
120 USCA Case Number 20−1081 for 117 Notice of Cross Appeal filed by Nadia Alasaad, Jeremie Dupin, Diane Maye Zorri, Mohammed Akram Shibly, Aaron Gach, Ghassan Alasaad, Suhaib Allababidi, Matthew Wright, Zainab Merchant, Sidd Bikkannavar, Ismail Abdel−Rasoul. (Paine, Matthew) (Entered: 01/15/2020)

 
 Case 1:17-cv-11730-DJC Document 1 Filed 09/13/17 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul aka Isma’il Kushkush, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, and Matthew Wright,

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Violation of First and Fourth Amendment rights)

Plaintiffs,

No. _______________________

v.

Elaine Duke, Acting Secretary of the U.S. Department of Homeland Security, in her official capacity; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity,

Defendants.

PRELIMINARY STATEMENT 1. This lawsuit challenges searches and seizures of smartphones, laptops, and other electronic devices at the U.S. border in violation of the First and Fourth Amendments to the U.S. Constitution. U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”) search travelers’ mobile electronic devices pursuant to policies that do not require a warrant, probable cause, or even reasonable suspicion that the device contains contraband or evidence of a violation of immigration or customs laws. Today’s electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of their owners’ lives. Because government scrutiny of electronic devices is an
1

Case 1:17-cv-11730-DJC Document 1 Filed 09/13/17 Page 2 of 42
unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.
2. Plaintiffs are ten U.S. citizens and a lawful permanent resident who regularly travel outside the country with their electronic devices and intend to continue doing so. Federal officers seized and searched Plaintiffs’ electronic devices at U.S. ports of entry without probable cause to believe that the devices contained contraband or evidence of a violation of immigration or customs laws. Four of the Plaintiffs had their devices retained for weeks or months beyond the time they entered the country, and were deprived of the use of their devices.
3. Defendants, who are responsible for the challenged searches, seizures, practices, and policies, are the heads of the U.S. Department of Homeland Security (“DHS”), and two of its units, CBP and ICE.
4. CBP and ICE have searched the mobile electronic devices of tens of thousands of individuals, and the frequency of such searches has been increasing. While border officers conduct some searches manually, they conduct other searches with increasingly powerful and readily available forensic tools, which amplify the intrusiveness and comprehensiveness of the searches.
5. The effect of searches of mobile electronic devices on individual privacy and expression can hardly be overstated. Travelers’ electronic devices contain massive amounts of personal information, including messages to loved ones, private photographs of family members, opinions and expressive material, and sensitive medical, legal, and financial information. The volume and detail of personal data contained on these devices
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provides a comprehensive picture of travelers’ private lives, making mobile electronic devices unlike luggage or other items that travelers bring across the border.
6. The U.S. Supreme Court recognized that searches of mobile electronic devices implicate unique privacy interests in Riley v. California, 134 S. Ct. 2473 (2014). The Court observed that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The Court rejected the government’s argument that “a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical items.” In the Court’s words, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” The Court held that the Fourth Amendment requires police to obtain a warrant based on probable cause before searching a phone seized during an arrest. Id. at 2488, 2494–95.
7. In this lawsuit, Plaintiffs challenge: (a) searches by CBP and ICE of travelers’ electronic devices in violation of the First and Fourth Amendments; and (b) prolonged seizures, i.e., confiscation of travelers’ electronic devices for weeks or months to effectuate searches after travelers leave the border, in violation of the Fourth Amendment.
8. Two written directives expressly authorize the challenged searches and confiscations:
a. CBP’s 2009 directive titled “Border Searches of Electronic Devices Containing Information” (“CBP’s 2009 Policy”);1 and
1 https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf. 3

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b. ICE’s 2009 directive titled “Border Searches of Electronic Devices” (“ICE’s 2009 Policy”).2
9. Each directive permits warrantless and suspicionless searches and confiscations of mobile electronic devices. Neither directive requires that searches of electronic devices be authorized by a warrant based on probable cause to believe that the device contains contraband or evidence of a violation of immigration or customs laws.
10. Searching personal electronic devices without a warrant based on probable cause violates the constitutional rights of individuals to keep the private and expressive details of their lives free from unwarranted government scrutiny. Defendants’ policies and practices in searching and seizing personal electronic devices at the border eviscerate Americans’ constitutional rights to privacy and freedom of speech and association.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331. 12. This Court has authority to issue declaratory and injunctive relief under 28 U.S.C. § 2201 and § 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and its inherent equitable powers. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
2 https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf. 4

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PARTIES Plaintiffs 14. Plaintiffs Ghassan and Nadia Alasaad are married U.S. citizens. They reside in Revere, Massachusetts, where Mr. Alasaad is a limousine driver and Ms. Alasaad is a nursing student. 15. Plaintiff Suhaib Allababidi is a U.S. citizen who resides in Texas. He owns and operates a business that sells security technology, including to federal government clients. 16. Plaintiff Sidd Bikkannavar is a U.S. citizen who resides in California. He is an optical engineer at NASA’s Jet Propulsion Laboratory. 17. Plaintiff Jérémie Dupin is a U.S. lawful permanent resident, a citizen of Haiti, and a resident of Massachusetts. He is a journalist. 18. Plaintiff Aaron Gach is a U.S. citizen who resides in California. He is an artist. 19. Plaintiff Ismail Abdel-Rasoul aka Isma’il Kushkush is a U.S. citizen who resides in Virginia. He is a freelance journalist. 20. Plaintiff Diane Maye is a U.S. citizen who resides in Florida. She is an Assistant Professor of Homeland Security at Embry-Riddle Aeronautical University and a former captain in the United States Air Force. 21. Plaintiff Zainab Merchant is a U.S. citizen who resides in Florida. She is a writer and a graduate student in international security and journalism at Harvard University.
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22. Plaintiff Mohammed Akram Shibly is a U.S. citizen who resides in New York. He is a filmmaker.
23. Plaintiff Matthew Wright is a U.S. citizen who resides in Colorado. He is a computer programmer.
Defendants 24. Defendant Elaine Duke is Acting DHS Secretary. She has authority over all DHS policies and practices, including those challenged here. Plaintiffs sue her in her official capacity. 25. Defendant Kevin M. McAleenan is Acting Commissioner of CBP, which controls U.S. ports of entry. He has authority over all CBP policies and practices, including those challenged here. Plaintiffs sue him in his official capacity. 26. Defendant Thomas D. Homan is Acting Director of ICE, which assists CBP in searching electronic devices seized at the border. He has authority over all ICE policies and practices, including those challenged here. Plaintiffs sue him in his official capacity.
ELECTRONIC DEVICES CARRIED OVER THE U.S. BORDER 27. Nearly everyone who crosses U.S. borders each day carries an electronic device of some kind. These include mobile phones (most commonly smartphones), laptops, tablets, digital cameras, and portable digital storage devices. The use of mobile phones among U.S. adults is pervasive: 95 percent own a cell phone, with 77 percent owning a smartphone.3 Similarly, more than 50 percent of U.S. adults own a tablet
3 http://www.pewinternet.org/fact-sheet/mobile/. 6

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computer.4 Travelers rely on these devices for communication (via text messages, calls, email, and social networking), navigation, shopping, banking, entertainment, news, and photography, among other functions.
28. People consistently carry electronic devices with them when they travel. Many travelers carry several electronic devices at a time, thus multiplying the data in their possession.
29. Today’s electronic devices are unlike luggage or other items a person might carry across the border.
30. Electronic devices contain massive amounts of data, and their storage capacities continue to grow. Laptops sold in 2017 can store up to two terabytes.5 Even tablet computers can be purchased with a terabyte of storage, and smartphones can store hundreds of gigabytes of data. The availability of cloud storage (i.e., data located on remote servers), email, and social media services that are accessible from electronic devices via the Internet can dramatically increase the functional capacity of a device. The storage capacity of a smartphone, laptop, or tablet can be the equivalent of hours of video files, thousands of pictures, or millions of pages of text.6
31. Electronic devices also contain a diverse array of personal, expressive, and associational information, including emails, text messages, voice mails, communications and location history, contact lists, social media postings, Internet browsing history, medical records, financial records, privileged information, videos, photos, other images,
4 http://www.pewinternet.org/fact-sheet/mobile/. 5Apple, Compare Mac models, https://www.apple.com/mac/compare/. 6 LexisNexis, How Many Pages in a Gigabyte? (2007), http://www.lexisnexis.com/applieddiscovery/lawlibrary/whitePapers/ADI_FS_PagesInA Gigabyte.pdf.
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calendars, and notes. Government officers can learn a great deal about people just by looking at the “apps” (i.e., applications) they have chosen to install, such as apps related to news, dating, religious communities, health, or foreign languages. Many people store sensitive information about other people in their devices, including professionals who have duties to secure sensitive information about their clients.
32. Electronic devices can act as portals to access cloud content, which is stored on or pulled from the remote servers of private companies. Cloud services and apps can reveal, for example, years’ worth of emails, photos, or health data such as heart rates and reproductive cycles.
33. Owners of electronic devices may not even be aware of some types of data that their devices contain, which can include historical location information, so-called “deleted” items that actually remain in digital storage, or metadata about digital files or the device itself such as time stamps or GPS coordinates created automatically by software on the device.
34. Electronic devices can also contain data that span years, particularly given that data can readily be transferred from an old device to a new one.
35. Because electronic devices contain enormous quantities of information reflecting a range of conduct over extended periods of time, their contents can be used to assemble pictures of their owners’ lives that are far more detailed, intimate, and personal than would be possible even through comprehensive searches of those individuals’ homes.
36. Electronic devices are often essential to people’s work, including that of the Plaintiffs. Many individuals rely on their mobile phones or laptop computers to
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respond to work-related email, create or edit important documents, or run their businesses. Thus, devices are essential possessions for most people. As explained below, officials’ confiscation of such devices not only violates Plaintiffs’ Fourth Amendment rights, it also significantly interferes with their economic livelihoods.
SEARCHES OF ELECTRONIC DEVICES AT THE U.S. BORDER 37. All eleven Plaintiffs were subjected to searches of their electronic devices at the U.S. border. 38. The number of border searches of electronic devices by CBP and ICE has been growing rapidly. According to CBP data, CBP conducted 14,993 electronic device searches in the first half of fiscal year 2017, meaning that CBP is on track to conduct approximately 30,000 searches this fiscal year, compared to just 8,503 searches in fiscal year 2015.7 If the rate of searches continues to grow, CBP may conduct even more searches in the next fiscal year. 39. The searches of electronic devices that border officials conduct can be (a) “manual,” (b) “forensic,” or (c) both manual and forensic searches for a single device. 40. During manual searches, officers review the contents of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or touchscreen interfaces. For example, Mr. Allababidi watched a CBP officer manually search one of his phones for at least 20 minutes. 41. Given the great volume and detail of personal information that electronic devices contain, and the ease of manually navigating them, manual searches are
7 https://www.cbp.gov/newsroom/national-media-release/cbp-releases-statisticselectronic-device-searches-0. The fiscal year runs from October 1 of the year before to September 30 of that same year. So, for example, fiscal year 2017 runs from October 1, 2016 to September 30, 2017.
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extraordinarily invasive of travelers’ privacy. With little effort, an officer without specialized training or equipment can conduct thorough manual searches, including by opening and perusing various stored files, programs, and apps, or by using a device’s built-in keyword-search function. The device searches at issue in Riley, which the Supreme Court held were unlawful without a search warrant based on probable cause, were manual searches.
42. The accessibility of cloud-based content on smartphones and other electronic devices—including email, social media, financial records, or health services— further expands the amount of private information officers could view during a manual search.
43. In a forensic search, border officials use sophisticated tools, such as software programs or specialized equipment, to evaluate information contained on a device. Although there are different types of forensic searches, many of them begin with agents making a copy of some or all data contained on a device. Forensic tools can capture all active files, deleted files, files in allocated and unallocated storage space, metadata related to activities or transactions, password-protected or encrypted data, and log-in credentials and keys for cloud accounts. They also are able to capture the same kinds of information that can be viewed in a manual search. Officials then can analyze the data they have copied using powerful programs that read and sort the device’s data even more efficiently than through manual searches.
44. CBP and ICE use various sophisticated tools to conduct forensic searches. For example, a CBP officer told Mr. Bikkannavar that “algorithms” were used to search the contents of his phone, indicating the use of one or more forensic tools. Likewise, an
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ICE agent attempted to image Mr. Wright’s laptop with MacQuisition software, and a CBP forensic scientist extracted data from the SIM card in Mr. Wright’s phone and from his camera.
45. Searches of electronic devices by CBP and ICE, regardless of the method used, are extraordinarily invasive of travelers’ privacy, given the volume and detail of highly sensitive information that the devices contain.
46. Searches of electronic devices also impinge on constitutionally protected speech and associational rights, including the right to speak anonymously, the right to private association, the right to gather and receive information, and the right to engage in newsgathering. For example, CBP officers twice searched the contents of Mr. Dupin’s phone, which contained his confidential journalistic work product, including reporting notes and images, source contact and identifying information, and communications with editors. Similarly, on three separate occasions, officers searched the contents of Mr. Kushkush’s phones, which he used for his work as a journalist, and which contained his work product, work-related photos, and lists of contacts. Such warrantless searches of travelers’ electronic devices unconstitutionally chill the exercise of speech and associational rights protected by the First Amendment.
47. Border searches of electronic devices typically occur in the “secondary inspection” or “secondary screening” area of a port of entry. The secondary inspection environment is inherently coercive. Officers wear government uniforms and carry weapons, and they command travelers to enter and remain in the secondary inspection areas. Travelers are not free to exit those areas until officers permit them to leave. The areas are unfamiliar to travelers and closed off from the public areas of the airports or
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other ports of entry. During the inspection process, officers take possession of travelers’ passports and other belongings.
48. CBP officers often use the coercive nature of the secondary inspection environment to compel travelers to unlock their devices or disclose their device passwords. Officers also threaten to confiscate travelers’ devices if they decline to provide access to the devices. For example, Mr. and Ms. Alasaad had no meaningful choice but to disclose to a CBP officer the password to Ms. Alasaad’s phone, because the officer told them that CBP would confiscate and keep the phone if they did not provide the password.
49. CBP officers even resort to physical force in order to conduct electronic device searches. For example, when Mr. Shibly refused to hand over his phone after having done so three days earlier at the same port of entry, three CBP officers physically restrained him and took his phone. One officer squeezed his hand around Mr. Shibly’s throat, which caused him great pain and emotional distress.
CONFISCATION OF ELECTRONIC DEVICES AT THE U.S. BORDER 50. Four Plaintiffs were subjected to confiscation and prolonged seizure of
their electronic devices at the U.S. border: Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright.
51. When travelers decline to comply with government officers’ orders to unlock their devices or provide their device passwords, officers often respond by confiscating those devices. In such cases, CBP officers may also confiscate unlocked devices (i.e., devices whose content can be accessed without entering a password or other security authentication), including devices that CBP officers have already searched.
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52. These confiscations can last for months. For example, when Mr. Allababidi refused to unlock one of his phones, officers confiscated that phone and also his unlocked phone that officers had already searched. The government returned his unlocked phone more than two months later. After more than seven months, CBP still has not returned his locked phone. Similarly, when Mr. Wright refused to unlock his laptop, officers confiscated that laptop, and also his locked phone, and his camera, which did not have a locking feature. Mr. Wright received his confiscated devices 56 days later.
53. Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days.
54. These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data.
55. For example, a CBP officer told Mr. Wright that it could take a year for his devices to be returned. Mr. Wright needs these tools to perform his job as a computer programmer. Soon after CBP confiscated his laptop and phone, Mr. Wright had to spend
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$2,419.97 to buy a new laptop and phone. Similarly, Mr. Alasaad needs his phone for his work as a limousine driver, and Ms. Alasaad needs her phone for daily responsibilities, so the Alasaads had to spend approximately $1,000 to purchase two new phones.
56. When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways:
a. First, these confiscations are not justified at their inception when they are affected absent probable cause.
b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched.
c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices.
DEFENDANTS’ POLICIES ON DEVICE SEARCH AND CONFISCATION 57. CBP and ICE policies expressly authorize warrantless and suspicionless
searches and confiscations of electronic devices at the border. Data Searches
58. The 2009 CBP and ICE Policies authorize border officials to search travelers’ electronic devices without a warrant or any basis for suspecting that the devices contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to searches of their devices.
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a. CBP’s 2009 Policy authorizes CBP officers to “examine electronic devices” and “review and analyze the information encountered at the border”— “with or without individualized suspicion.” ¶ 5.1.2. On information and belief, this policy is currently in force.
b. ICE’s 2009 Policy authorizes ICE agents to search electronic devices “with or without individualized suspicion.” ¶ 6.1. On information and belief, this policy is currently in force.
59. The 2009 Policies permit warrantless and suspicionless searches of content that raises heightened privacy concerns. Under CBP’s 2009 Policy, if digital information is protected by the attorney-client or attorney work product privilege, it is “not necessarily exempt from a border search.” ¶ 5.2.1. While officers “must seek advice from the CBP Associate/Assistant Chief Counsel before” searching it, id., that requirement provides no substantive protection. Likewise, the policy provides that “[o]ther possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.” ¶ 5.2.2. By referencing “any applicable” law and policy, CBP’s 2009 Policy does not make clear whether there are any limits on its search authority. If there are any limits, the CBP policy provides no guidance on how agents should comply with such limits.
60. Similarly, under ICE’s 2009 Policy, “a claim of privilege or personal information” may justify “special handling,” but it “does not prevent the search of a traveler’s information . . . .” ¶ 8.6.1. Likewise, the ICE policy acknowledges that confidential business information “may” be subject to the Trade Secrets Act, the Privacy
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Act, and “other laws” (¶ 8.6.2.a), but it provides no guidance on how agents should process such materials. The ICE rules on information subject to the attorney-client or attorney work product privilege (¶ 8.6.2.b), and “[o]ther possibly sensitive information, such as medical records and work-related information carried by journalists” (¶ 8.6.2.c), suffer the same flaws as the corresponding CBP rules.
Device Confiscations 61. The 2009 CBP and ICE Policies authorize confiscation of travelers’ electronic devices for weeks or months at a time in order to effectuate searches after travelers leave the border, without probable cause or any basis for suspecting that the devices contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to confiscation of their devices.
a. Under CBP’s 2009 Policy, officers may confiscate devices from travelers for a “thorough” search, on-site or off-site. ¶ 5.3.1. The policy does not require that any such confiscation be pursuant to individualized suspicion of wrongdoing.
b. ICE’s 2009 Policy permits agents to confiscate devices for a “further review” on-site or off-site. ¶ 8.1.4. The policy expressly provides that agents need no individualized suspicion to do so. ¶ 6.1.
c. The policies also allow for lengthy confiscations. While the default period of CBP confiscation is five days, CBP supervisors may extend this period based on undefined “extenuating circumstances.” ¶¶ 5.3.1, 5.3.1.1. Likewise, while the default period of ICE confiscation is 30 days, ICE supervisors may extend this period under undefined “circumstances . . . that warrant more time.” ¶ 8.3.1.
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BORDER SEARCHES AND CONFISCATIONS OF PLAINTIFFS’ ELECTRONIC DEVICES Ghassan Alasaad and Nadia Alasaad Search 1
62. On July 7, 2017, Plaintiffs Ghassan and Nadia Alasaad drove with their daughters and other family members from Revere, Massachusetts, to Quebec for a family vacation. During their return trip on July 12, 2017, they entered the United States at the border crossing near Highgate Springs, Vermont. Ghassan Alasaad had an unlocked smartphone, and Nadia Alasaad had a locked smartphone.
63. The Alasaads’ 11-year-old daughter was ill and had a high fever. 64. CBP officers directed them to secondary inspection. Mr. Alasaad explained that his daughter was ill and needed care. Nevertheless, a CBP officer took Mr. Alasaad into a small room for questioning. 65. The Alasaads observed a CBP officer in the waiting room manually searching Mr. Alasaad’s unlocked phone, which CBP officers had retrieved from the Alasaads’ car. 66. The Alasaads told a CBP supervisor that their daughter’s fever had worsened. The supervisor responded that they would have to continue waiting. Mr. Alasaad asked why the family was being detained and searched. The supervisor responded that he had simply felt like ordering a secondary inspection. 67. After approximately five hours of detention, a CBP officer ordered Ms. Alasaad to provide the password to her locked phone. The Alasaads objected, especially because Ms. Alasaad wears a headscarf in public in accordance with her religious beliefs,
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and she has photos in her phone of herself and her daughters without headscarves that she did not want any CBP officers, especially male officers, to view.
68. The CBP officer told the Alasaads that if they did not disclose the password to Ms. Alasaad’s phone, the phone would be confiscated. Because they had no meaningful choice, the Alasaads wrote down the password.
69. The officer coerced the Alasaads into disclosing the password to Ms. Alasaad’s phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. The family had already been detained in the customs inspection building for approximately five hours.
c. The CBP officer threatened to confiscate the phone if they declined to provide the password.
d. The Alasaads were increasingly concerned about their daughter, who was ill and urgently required care and rest.
70. After the Alasaads disclosed the password, the officer told them that they could remain while their phones were searched, or depart and leave their phones behind. Ms. Alasaad told the officer that a male officer could not search her phone because it had photos of herself and her daughters without their headscarves. The officer told them that it would take two hours for a female officer to arrive, and then more time to search the phone. Based on what they were told, the Alasaads understood that they would need to wait several hours for their phones to be searched. Exhausted and desperate to attend to their daughter’s health, the Alasaads departed without their phones. CBP officers coerced
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them into leaving their phones at the border, with the threat of several more hours of detention.
71. The family departed after approximately six hours of detention. 72. Approximately fifteen days later, CBP returned the two phones to the Alasaads. On information and belief, CBP’s search and seizure of Mr. Alasaad’s phone damaged its functionality. Soon after CBP returned the phone to him, he attempted to access certain media files in his WhatsApp application, including videos of his daughter’s graduation. The phone displayed the message, “Sorry, this media file doesn’t exist on your internal storage.” This problem did not occur prior to CBP’s search and seizure of the phone.
Search 2 73. On August 28, 2017, Ms. Alasaad and her 11-year-old daughter arrived from Morocco, where they had been visiting family, in New York’s John F. Kennedy International Airport. Ms. Alasaad was not carrying her smartphone with her because she had lost it while traveling. Her daughter was traveling with a locked smartphone. 74. CBP officers directed Ms. Alasaad and her daughter to a secondary inspection area. While questioning Ms. Alasaad, officers asked her to produce her phone. Ms. Alasaad informed the officers that she had lost it. Officers then searched Ms. Alasaad’s handbag and found the smartphone her daughter was using. The phone was locked. 75. CBP officers directed Ms. Alasaad to unlock the phone. Ms. Alasaad informed the officers that she did not know the password. The officers then directed Ms. Alasaad’s daughter to write down the password on a piece of paper. She did so, because
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the environment was coercive, and because she was an 11-year old obeying an instruction from an adult. A CBP officer took the phone to another room for approximately 15 minutes.
76. On information and belief, one or more CBP officers searched this phone during this time. They had the means to do so (Ms. Alasaad’s daughter had provided the password to unlock it), and they had no reason to order her to unlock it other than to search it.
Suhaib Allababidi 77. On January 21, 2017, Mr. Allababidi returned from a business trip on a flight from Dubai, United Arab Emirates, to Dallas, Texas. He carried with him a locked smartphone that he used regularly for both personal and business matters inside the United States. He also carried an unlocked smartphone that he had brought on the trip because it enabled him to communicate easily while overseas. 78. At the passport control area in the Dallas-Fort Worth airport, a CBP officer directed Mr. Allababidi to a secondary inspection area. There, as CBP officers searched his belongings, Mr. Allababidi observed a CBP officer seize and manually search his unlocked phone for at least 20 minutes. The officer then returned the phone to Mr. Allababidi. 79. The officer then ordered Mr. Allababidi to unlock his other phone. Concerned about officers accessing private information on his phone, Mr. Allababidi declined to do so. CBP officers responded by confiscating both phones, including the unlocked phone that the officer had already searched and returned to him.
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80. The government returned the unlocked phone to Mr. Allababidi more than two months later. After more than seven months, CBP still has not returned the locked phone to him.
Sidd Bikkannavar 81. On January 31, 2017, Mr. Bikkannavar flew into Houston, Texas, from Santiago, Chile, where he had been on vacation. He traveled with a locked smartphone that is the property of his employer, NASA’s Jet Propulsion Laboratory (“JPL”). Consistent with his employer’s policies, Mr. Bikkannavar used the phone for both work and personal matters. 82. At the passport control area of the Houston airport, CBP officers escorted Mr. Bikkannavar to a secondary inspection area. A CBP officer seized Mr. Bikkannavar’s phone. The officer coerced Mr. Bikkannavar into disclosing his phone’s password. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. A CPB officer had handed Mr. Bikkannavar a CBP form titled “Inspection of Electronic Devices.”8 It stated in relevant part: “All persons, baggage, and merchandise . . . are subject to inspection, search and detention. . . . [Y]our electronic device(s) has been detained for further examination, which may include copying. . . . CBP may retain documents or information . . . . Consequences of failure to provide information: Collection of this information is mandatory . . . . Failure to provide
8 https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devicestearsheet.pdf.
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information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure.”
c. Mr. Bikkannavar understood this form to mean that CBP was asserting a legal prerogative to search the contents of his phone, and that if he refused to disclose his phone password, CBP would respond by seizing his device and copying his information.
d. The first time the officer ordered Mr. Bikkannavar to disclose his phone password, Mr. Bikkannavar refused to do so, and explained that the phone belonged to his employer. He pointed out the JPL barcode and the JPL asset tag on the back of the phone. The agent then repeated his order to disclose the phone’s password. Mr. Bikkannavar complied because the agent insisted.
e. Officers did not answer Mr. Bikkannavar’s questions. f. Mr. Bikkannavar was in danger of missing his connecting flight from Houston to Los Angeles. 83. When Mr. Bikkannavar disclosed his phone password, the officer wrote it down and took the password and the phone to another room. 84. After about 30 minutes, the officer returned the phone to Mr. Bikkannavar and informed him that officers had used “algorithms” to search the contents of the phone, indicating that they used one or more forensic tools. 85. The officer also informed Mr. Bikkannavar that officers had not found any “derogatory” information about him.
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Jérémie Dupin Search 1
86. On December 22, 2016, Mr. Dupin flew from Port-au-Prince, Haiti, to Miami, Florida, where he had a connecting flight to Montreal, Quebec, to visit his daughter and take her by bus to New York City for Christmas. He had a locked smartphone with him that he used for both his work as a journalist and personal matters.
87. At the passport control area of the Miami airport, a CBP officer directed Mr. Dupin to a secondary inspection area. Mr. Dupin waited there for more than two hours. Three officers then escorted him to a smaller room, where they asked him specific questions about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked.
88. During the questioning, the officers seized Mr. Dupin’s phone and ordered him to provide the password to the phone. Because he had no meaningful choice, Mr. Dupin provided the password.
89. The officers coerced Mr. Dupin into disclosing his phone password. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Dupin was alone in an interrogation room with three CBP officers. He understood, based on the CBP officers’ tone and demeanor, that they were commanding him to disclose his password.
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c. When Mr. Dupin had told a CBP officer that he was frustrated by the delay in his processing, the officer responded by putting his hand on the holster of his gun and ordering Mr. Dupin to sit down and wait.
90. A CBP officer searched Mr. Dupin’s phone for about two hours. During some of this time, Mr. Dupin observed the officer manually searching his phone. At other times, the officer took Mr. Dupin’s phone into another room and returned periodically to ask Mr. Dupin questions about the contents of the phone, including his photos, emails, and contacts.
91. After Mr. Dupin had spent about two hours in the smaller room, the officers returned Mr. Dupin’s phone to him and told him he could leave.
Search 2 92. On December 23, 2016, Mr. Dupin traveled by bus with his seven-yearold daughter from Montreal to New York City. Mr. Dupin carried the same locked smartphone with him. 93. Mr. Dupin and his daughter arrived at the customs checkpoint at the U.S. border near midnight. A CBP officer directed Mr. Dupin and his daughter to a secondary inspection area, where they waited and tried to sleep. CBP officers arrived and asked Mr. Dupin some of the same questions officers had asked him in Miami. 94. During the questioning, the officers seized Mr. Dupin’s phone and ordered him to provide the password to the phone. As on the day before, Mr. Dupin had no meaningful choice and provided the password. 95. The officers coerced Mr. Dupin into unlocking his phone. Specifically:
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a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Dupin again understood, based on the CBP officers’ tone and demeanor, that they were commanding him to disclose his password.
c. It was the middle of the night, and the bus on which Mr. Dupin and his daughter had been traveling had already departed. Mr. Dupin did not know how or when he would be able to catch another bus to New York City.
d. Mr. Dupin was traveling with his young daughter. When the officers ordered Mr. Dupin to unlock his phone, his exhausted daughter was trying to sleep in his lap. Mr. Dupin feared that if he refused to unlock his phone, the officers would escalate the encounter, which would upset and frighten his daughter.
96. A CBP officer took Mr. Dupin’s phone into another room for about four hours. During this time, one or more CBP officers searched the phone. An officer periodically returned to ask Mr. Dupin questions about the contents of the phone, including specific photos and emails.
97. After approximately seven hours of detention on the morning of Christmas Eve, officers returned the phone to Mr. Dupin and told him that he and his daughter could catch another bus to New York City.
Aaron Gach 98. On February 23, 2017, Mr. Gach arrived at San Francisco International Airport on a flight from Belgium, where he had participated in an art exhibition displaying works that could be considered critical of the government. He traveled with a locked smartphone.
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99. A CBP officer directed Mr. Gach to a secondary inspection area, where two CBP officers asked him detailed questions about his work as an artist and the exhibition in Belgium and told him they needed to search his phone. Mr. Gach responded that he did not want the officers to search his phone, and he asked what specific information the officers were seeking. They refused to identify any information in response.
100. The CBP officers asked Mr. Gach why he did not want to submit his phone for a search. Mr. Gach responded that he believes strongly in the U.S. Constitution and in his right to privacy. The officers told Mr. Gach that his phone would be held for an indeterminate amount of time if he did not disclose his password. The CBP officers continued to demand that Mr. Gach submit to a phone search. Because he had no meaningful choice, Mr. Gach entered his password and handed over his unlocked phone.
101. The officers coerced Mr. Gach into unlocking his phone. Specifically: a. The secondary inspection setting is inherently coercive. Supra ¶¶
47–48. b. The officers repeatedly demanded that Mr. Gach produce his
phone for a search. c. The CBP officers told Mr. Gach that they would keep his phone
for an indeterminate amount of time if he did not unlock his phone for a search. 102. The officers refused to conduct a search of the phone in Mr. Gach’s
presence. Instead, they took it behind a dividing wall for approximately 10 minutes.
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103. On information and belief, one or more CBP officers searched Mr. Gach’s phone during this time. They had the means to do so (Mr. Gach had unlocked it), and they had no reason to order him to unlock it other than to search it.
104. The CBP officers then returned Mr. Gach’s phone and permitted him to leave the secondary inspection area.
Isma’il Kushkush Search 1
105. On January 9, 2016, Mr. Kushkush traveled to New York City from Stockholm, Sweden, where he had been conducting research for his master’s thesis on refugees for Columbia Journalism School. He had a locked laptop computer and two unlocked cell phones, one being a smartphone, with him. He uses his laptop and phones for his work as a journalist.
106. Upon Mr. Kushkush’s arrival at New York’s John F. Kennedy International Airport, CBP officers took him to a secondary inspection area, where they questioned him and searched his belongings. The officers searched his notebooks, which contained information related to his work as a journalist, and asked him about the contents of the notebooks.
107. The CBP officers took Mr. Kushkush’s laptop and two phones out of his sight for approximately 20 minutes. On information and belief, one or more CBP officers searched Mr. Kushkush’s two phones during this time, either manually or forensically. The officers returned the devices to Mr. Kushkush and permitted him to leave after he had spent approximately three hours in the secondary inspection area.
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Search 2 108. On January 4, 2017, Mr. Kushkush traveled to Washington, D.C. from Israel, where he had completed an internship with the Associated Press through funding from the Overseas Press Club Foundation. He carried with him a locked smartphone that he used for both professional and personal matters, and that contained his journalistic work product, work-related photos, and lists of contacts. He also carried the same locked laptop that had been previously seized by CBP, an unlocked digital camera, an unlocked voice recorder, and multiple unlocked flash drives. 109. When Mr. Kushkush arrived at Dulles International Airport, CBP officers took him to a secondary inspection area, where they questioned him, searched his notebooks, and asked about his reporting activities. They also asked Mr. Kushkush for his social media identifiers and his email address. 110. A CBP officer demanded to see Mr. Kushkush’s phone and told him to unlock it. Because he had no meaningful choice, Mr. Kushkush reluctantly complied. 111. The CBP officer coerced Mr. Kushkush into unlocking his phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Kushkush understood, based on the CBP officer’s tone and demeanor, that he was commanding Mr. Kushkush to unlock his phone.
112. Mr. Kushkush observed the CBP officer manually searching through the contents of his phone. CBP officers also took Mr. Kushkush’s laptop, voice recorder, camera, flash drives, and notebooks into another room for approximately 20 minutes. On
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information and belief, one or more CBP officers searched Mr. Kushkush’s unlocked devices during that time, either manually or forensically.
113. The officers returned the devices to Mr. Kushkush and permitted him to leave after he had spent about one and a half hours in the secondary inspection area.
Search 3 114. On July 30, 2017, Mr. Kushkush traveled by bus from Middlebury, Vermont, where he was attending a language program at Middlebury College, to Montreal, Quebec, along with other students in the program. They returned the following day, on July 31, 2017, and entered the United States at Highgate Springs, Vermont. Mr. Kushkush carried a locked smartphone with him. 115. A CBP officer directed Mr. Kushkush to secondary inspection, where he waited for approximately one hour. An officer then demanded Mr. Kushkush’s phone and the password to unlock it. The officer stated that he could seize the phone if Mr. Kushkush did not cooperate. Because he had no meaningful choice, Mr. Kushkush unlocked his phone and stated that he was doing so against his will. 116. Mr. Kushkush was coerced into unlocking his phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. The CBP officer told Mr. Kushkush that he would keep his phone for an indeterminate amount of time if Mr. Kushkush did not unlock his phone for a search.
117. The CBP officer wrote down the password to Mr. Kushkush’s phone as he unlocked it and took the phone out of Mr. Kushkush’s sight for at least one hour. On
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information and belief, one or more CBP officers then searched the phone, either manually or forensically: they had the means to do so (Mr. Kushkush had unlocked it), and they had no reason to order him to unlock the phone other than to search it.
118. After nearly three hours, two CBP officers directed Mr. Kushkush to a separate room, where they questioned him about his work as a journalist.
119. The officers permitted Mr. Kushkush to leave after he had spent approximately three and a half hours in the customs inspection building. He was given his phone to take with him.
Diane Maye 120. On June 25, 2017, Ms. Maye flew from Oslo, Norway, to Miami, Florida. She was on her way home after a vacation in Europe. She was traveling with a locked laptop computer and a locked smartphone. 121. Upon landing, a CBP officer seized Ms. Maye’s computer and phone and ordered her to unlock the devices. Because she had no meaningful choice, Ms. Maye unlocked both devices. 122. An officer coerced Ms. Maye into unlocking her computer and phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. She was confined alone with two CBP officers in a small room that felt to her like a police station. An officer had ordered her to enter the room.
c. Ms. Maye understood, based on the CBP officers’ tone and demeanor, that they were commanding her to unlock her devices.
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d. Ms. Maye was exhausted after 24 hours of continuous travel, and she needed to communicate with her husband, who was waiting for her.
123. Ms. Maye observed a CBP officer manually search her unlocked laptop. 124. A CBP officer seized Ms. Maye’s unlocked phone for approximately two hours. On information and belief, one or more CBP officers searched Ms. Maye’s phone during this time: they had the means to do so (Ms. Maye had unlocked it), and they had no reason to order her to unlock it other than to search it.
Zainab Merchant 125. Zainab Merchant is the founder and editor of Zainab Rights, a media organization that publishes multimedia content on the Internet on current affairs, politics, and culture, and she is a graduate student at Harvard University. 126. In March 2017, Ms. Merchant traveled from her home in Orlando, Florida to Toronto, Ontario to visit her uncle. On March 5, 2017, she went to the Toronto airport for her flight home to Orlando. She carried with her a locked laptop and a locked smartphone. 127. At a U.S. customs preclearance station at the Toronto airport, she was directed to a secondary inspection area. 128. CBP officers took Ms. Merchant’s laptop out of her sight. 129. CBP officers told her to turn over her smartphone. Ms. Merchant, who wears a headscarf in public in accordance with her religious beliefs, did not want to turn over the phone because it contained pictures of her without her headscarf that she did not want officers to see. It also contained information and communications related to her blog site. She told the CBP officers she would turn over the phone, but would not unlock it. A
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CBP officer told her that if she gave them the password, they would look through the phone quickly, but if she did not give them the password, they would detain the phone indefinitely.
130. Ms. Merchant said she was traveling alone, and that if she did not have a phone she would have no means of communicating. She also said that she needed the phone for her work and studies. A CBP officer reiterated that she could choose to unlock the phone, or have it seized indefinitely.
131. In tears, Ms. Merchant unlocked her phone. She also provided the password to unlock her laptop.
132. The CBP officers coerced Ms. Merchant into unlocking her phone and providing the password to her laptop. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. CBP officers told Ms. Merchant that they would seize her phone indefinitely if she did not unlock it.
c. Ms. Merchant was traveling alone and needed her phone to communicate with her family.
133. CBP officers then began questioning Ms. Merchant about the purpose of her trip, her religious affiliation, and her blog. They specifically asked about an article she had written on her blog that described a previous border crossing experience.
134. After approximately two hours, officers gave Ms. Merchant her phone and laptop and permitted her to leave the U.S. customs preclearance area.
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135. Ms. Merchant’s laptop and phone were out of her sight for approximately one and a half hours. On information and belief, one or more CBP officers searched her laptop and phone during this time: they had the means to do so (they had the passwords), and they had no reason to seize the laptop and phone other than to search them. When the CBP officers returned the phone to Ms. Merchant and she unlocked it, the Facebook application was open to the “friends” page. It had not been open to that page when she had given up the phone.
Akram Shibly Search 1
136. Akram Shibly drove from his home in Buffalo, New York, to Toronto, Ontario, in late December 2016 for his job as a professional filmmaker. He returned on January 1, 2017, and sought to enter the United States at the Lewiston-Queenston Bridge in New York. He was traveling with a locked smartphone.
137. At the customs checkpoint, a CBP officer directed Mr. Shibly to a secondary inspection area, where officers told Mr. Shibly to fill out a form with information that included, among other things, his phone’s password. Mr. Shibly left that line of the form blank. A CBP officer examined the completed form and ordered Mr. Shibly to provide his password. Mr. Shibly told the officer that he did not feel comfortable doing so. In an accusatory manner, the officer told Mr. Shibly that if he had nothing to hide, then he should unlock his phone.
138. Because he had no meaningful choice, Mr. Shibly disengaged the lock screen of his phone, which the officer then took from him.
139. The officer coerced Mr. Shibly into unlocking his phone. Specifically:
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a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Shibly understood, based on the CBP officer’s tone and demeanor, that the officer was commanding him to disclose his password.
c. Mr. Shibly feared that if he refused to unlock his phone, the officer would assume he had done something wrong and treat him accordingly. Among other things, Mr. Shibly feared that if he refused to unlock his phone, the officer would detain him for the rest of the day.
140. The CBP officer took Mr. Shibly’s phone out of his sight for at least one hour. On information and belief, one or more CBP officers searched Mr. Shibly’s phone during this time: they had the means to do so (Mr. Shibly had unlocked it), and they had no reason to order him to unlock it other than to search it.
141. A CBP officer also coerced Mr. Shibly into disclosing his social media identifiers. On information and belief, CBP officers used this information to facilitate their search of Mr. Shibly’s phone as a portal to search his cloud-based apps and content.
142. A CBP officer returned Mr. Shibly’s phone and permitted him to leave the customs inspection building.
Search 2 143. On January 4, 2017, Mr. Shibly again drove from Buffalo to the Toronto area for a social outing. He returned later that day and again sought to enter the United States at the Lewiston-Queenston Bridge in New York. He was traveling with the same smartphone, but this time it was not locked, because he had not restored the lock screen that he had disengaged during the prior border crossing.
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144. At the customs checkpoint, a CBP officer again directed Mr. Shibly to a secondary inspection area inside the border station. There, a CBP officer ordered Mr. Shibly to hand over his phone. Mr. Shibly declined to do so, since officers had seized and searched his phone only three days earlier.
145. Three CBP officers approached him and used physical force to seize his phone. One of the officers squeezed his hand around Mr. Shibly’s throat, causing Mr. Shibly to suffer great pain and fear of death. Another officer restrained Mr. Shibly’s legs, and a third officer pulled Mr. Shibly’s phone from his pocket. Additional officers stood in a circle around Mr. Shibly. At no time did Mr. Shibly physically resist.
146. A CBP officer took Mr. Shibly’s phone to a separate room, out of his sight. On information and belief, one or more CBP officers searched Mr. Shibly’s phone during this time: they had the means to do so (the screen lock was still not engaged), and they had no reason to seize the phone other than to search it.
Matthew Wright 147. During March and April 2016, Matthew Wright traveled through Southeast Asia, where he participated in four Ultimate Frisbee tournaments and spent time with friends. On April 21, 2016, he flew from Tokyo, Japan, to Denver, Colorado. He had a locked smartphone, a locked laptop computer, and a camera without a locking feature. 148. At the passport control area of the Denver airport, a CBP officer directed Mr. Wright to a separate inspection area. The officer removed Mr. Wright’s laptop from its bag and ordered Mr. Wright to unlock it. Mr. Wright declined to do so. In response, CBP officers confiscated Mr. Wright’s locked laptop, locked phone, and camera.
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149. The CBP officers confiscated Mr. Wright’s devices on instructions from ICE’s Homeland Security Investigations (“HSI”), which sought “further forensic review,” according to CBP documents disclosed to Mr. Wright under the Freedom of Information Act and Privacy Act (“FOIA/PA”).
150. An officer informed Mr. Wright that it might take CBP as long as a year to return his devices to him.
151. Soon after leaving the airport, Mr. Wright spent $2,419.97 for a new laptop and phone. He is a computer programmer, and his livelihood depends on these tools.
152. CBP records show that HSI “attempted to image” Mr. Wright’s laptop with MacQuisition software. Also, a CBP forensic scientist extracted data from the SIM card in Mr. Wright’s phone and from his camera, stored the data on three thumb drives, and sent those thumb drives to other CBP officers.
153. CBP did not find any “derogatory” information about Mr. Wright, in his devices or otherwise, according to a CBP document disclosed to Mr. Wright under the FOIA/PA.
154. Mr. Wright received his devices 56 days after CBP had confiscated them. 155. On information and belief, CBP retained the information it extracted from Mr. Wright’s devices:
a. CBP extracted data from Mr. Wright’s devices. Supra ¶ 152. b. The 2009 CBP Policy provides that if a CBP officer destroys the information extracted from a traveler’s device, then the agent must document the destruction. ¶ 5.3.1.2.
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c. CBP’s documentation of its search and seizure of Mr. Wright’s devices, disclosed to Mr. Wright under the FOIA/PA, does not reflect such destruction.
FACTS RELEVANT TO ALL PLAINTIFFS 156. All Plaintiffs face a likelihood of future injury caused by the challenged policies and practices:
a. Defendants adopted the policies and practices discussed above related to searching and seizing electronic devices at the border. The frequency with which border officials enforce these policies and practices against travelers is rapidly growing. Supra ¶ 38.
b. All Plaintiffs have traveled across the U.S. border with their electronic devices multiple times. All Plaintiffs will continue to do so in the future.
c. When Plaintiffs cross the U.S. border, they will be subject to CBP’s and ICE’s policies and practices. Thus, all Plaintiffs are at great risk of constitutional harm, namely, search and seizure of their devices absent a warrant, probable cause or reasonable suspicion that their electronic devices contain contraband or evidence of a violation of immigration or customs laws. There is nothing that Plaintiffs can do to avoid this harm, except to forego international travel or to travel without any electronic devices, which would cause great hardship.
157. On information and belief, Plaintiffs are suffering the ongoing harm of CBP and ICE retaining (a) content copied from their devices or records reflecting content observed during searches of their devices, (b) content copied from their cloud-based accounts accessed through their devices or records reflecting content from their cloud-
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based accounts observed during the searches, (c) their social media identifiers, and/or (d) their device passwords.
158. Plaintiff Allababidi is suffering the ongoing harm of the confiscation of his device. He is also at imminent risk of suffering a device search so long as his device remains in CBP or ICE’s possession.
159. For these reasons, Plaintiffs are suffering and will continue to suffer irreparable harm, and have no adequate remedy at law.
160. Plaintiffs have a reasonable expectation of privacy in the content their electronic devices contain, in the content they store in the cloud that is accessible through their electronic devices, in their device passwords, and in the nature of their online presence and their social media identifiers.
161. Plaintiffs use their devices to communicate, associate, and gather and receive information privately and anonymously. Plaintiffs Dupin and Kushkush also use their devices to store sensitive journalistic work product and identifying information about their confidential sources.
162. Plaintiffs, and the many other travelers who cross the United States border every year with electronic devices, will be chilled from exercising their First Amendment rights of free speech and association, in knowing that their personal, confidential and anonymous communications and expressive material may be viewed and retained by government agents without any wrongdoing on their part.
163. Plaintiffs feel confused, embarrassed, upset, violated, and anxious about the search and confiscation of their devices. They worry that the CBP officers viewed personal information from their devices, including photos and messages; downloaded and
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retained that information; and shared it with other government agencies. This worry includes their own personal information, and also personal information from and about other people, including friends, family, and professional associates.
164. Defendants have directly performed, or aided, abetted, commanded, encouraged, willfully caused, participated in, enabled, contributed to, or conspired in the device searches, device confiscations, policies, and practices alleged above.
165. By the acts alleged above, Defendants have proximately caused harm to Plaintiffs.
166. Defendants’ conduct was done intentionally, with deliberate indifference, or with reckless disregard of Plaintiffs’ constitutional rights.
167. Defendants will continue to violate Plaintiffs’ constitutional rights unless enjoined from doing so by this Court.
COUNT I: Fourth Amendment claim for searching electronic devices
(by all Plaintiffs against all Defendants) 168. Plaintiffs herein incorporate by reference the allegations above. 169. Defendants violate the Fourth Amendment by searching the content that electronic devices contain, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
COUNT II: First Amendment claim for searching electronic devices
(all Plaintiffs against all Defendants) 170. Plaintiffs herein incorporate by reference the allegations above.
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171. Defendants violate the First Amendment by searching electronic devices that contain expressive content and associational information, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
COUNT III: Fourth Amendment claim for confiscating electronic devices (by Plaintiffs Ghassan and Nadia Alasaad, Allababidi, and Wright
against all Defendants) 172. Plaintiffs herein incorporate by reference the allegations above. 173. Defendants violate the Fourth Amendment by confiscating travelers’ electronic devices, for the purpose of effectuating searches of those devices after travelers leave the border, absent probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws. These confiscations are unreasonable at their inception, and in scope and duration.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that this Court: A. Declare that Defendants’ policies and practices violate the First and Fourth Amendments by authorizing searches of travelers’ electronic devices, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched. B. Declare that Defendants violated Plaintiffs’ First and Fourth Amendment rights by searching their electronic devices absent a warrant supported by probable cause
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that the devices contained contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
C. Enjoin Defendants from searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
D. Declare that Defendants’ policies and practices violate the Fourth Amendment by authorizing the confiscation of travelers’ electronic devices, for the purpose of effectuating searches of those devices after travelers leave the border, absent probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws.
E. Declare that Defendants violated the Fourth Amendment rights of Plaintiffs Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright by confiscating their electronic devices, to effectuate searches of their devices after they left the border, absent probable cause that the devices contained contraband or evidence of a violation of immigration or customs laws.
F. Declare that Defendants violated the Fourth Amendment rights of Plaintiffs Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright by confiscating their electronic devices, both locked and unlocked, for a period of unreasonable duration.
G. Enjoin Defendants (i) from confiscating travelers’ electronic devices, to effectuate searches of those devices after travelers leave the border, absent probable
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cause that the devices contain contraband or evidence of a violation of immigration or

customs laws, and (ii) in such cases, promptly to seek a warrant to search the device.

H. Enjoin Defendants to return Plaintiff Allababidi’s phone.

I. Enjoin Defendants to expunge all information gathered from, or copies

made of, the contents of Plaintiffs’ electronic devices, and all of Plaintiffs’ social media

information and device passwords.

J. Award Plaintiffs reasonable attorney’s fees and costs.

K. Grant such other and further relief as the Court deems proper.

DATED: September 13, 2017

Respectfully submitted:

Adam Schwartz (pro hac vice forthcoming) Sophia Cope (pro hac vice forthcoming) Aaron Mackey (pro hac vice forthcoming) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 (phone) (415) 436-9993 (fax) adam@eff.org sophia@eff.org amackey@eff.org

Esha Bhandari (pro hac vice forthcoming) Hugh Handeyside (pro hac vice forthcoming) Nathan Freed Wessler (pro hac vice forthcoming) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 (phone) (212) 549-2583 (fax) ebhandari@aclu.org hhandeyside@aclu.org nwessler@aclu.org

/s/ Jessie J. Rossman Jessie J. Rossman BBO #670685 Matthew R. Segal BBO #654489 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 (phone) (617) 451-0009 (fax) jrossman@aclum.org msegal@aclum.org

Counsel for Plaintiffs

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 Case 1:17-cv-11730-DJC Document 7 Filed 09/13/17 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul aka Isma’il Kushkush, Diane Maye, Zainab Merchant, Mohammed Akram Shibly, and Matthew Wright,

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Violation of First and Fourth Amendment rights)

Plaintiffs,

No. 1:17-cv-11730-DJC

v.

Elaine Duke, Acting Secretary of the U.S. Department of Homeland Security, in her official capacity; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity,

Defendants.

AMENDED COMPLAINT PRELIMINARY STATEMENT 1. This lawsuit challenges searches and seizures of smartphones, laptops, and other electronic devices at the U.S. border in violation of the First and Fourth Amendments to the U.S. Constitution. U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”) search travelers’ mobile electronic devices pursuant to policies that do not require a warrant, probable cause, or even reasonable suspicion that the device contains contraband or evidence of a violation of immigration or customs laws. Today’s electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of
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their owners’ lives. Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.
2. Plaintiffs are ten U.S. citizens and a lawful permanent resident who regularly travel outside the country with their electronic devices and intend to continue doing so. Federal officers seized and searched Plaintiffs’ electronic devices at U.S. ports of entry without probable cause to believe that the devices contained contraband or evidence of a violation of immigration or customs laws. Four of the Plaintiffs had their devices retained for weeks or months beyond the time they entered the country, and were deprived of the use of their devices.
3. Defendants, who are responsible for the challenged searches, seizures, practices, and policies, are the heads of the U.S. Department of Homeland Security (“DHS”), and two of its units, CBP and ICE.
4. CBP and ICE have searched the mobile electronic devices of tens of thousands of individuals, and the frequency of such searches has been increasing. While border officers conduct some searches manually, they conduct other searches with increasingly powerful and readily available forensic tools, which amplify the intrusiveness and comprehensiveness of the searches.
5. The effect of searches of mobile electronic devices on individual privacy and expression can hardly be overstated. Travelers’ electronic devices contain massive amounts of personal information, including messages to loved ones, private photographs of family members, opinions and expressive material, and sensitive medical, legal, and
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financial information. The volume and detail of personal data contained on these devices provides a comprehensive picture of travelers’ private lives, making mobile electronic devices unlike luggage or other items that travelers bring across the border.
6. The U.S. Supreme Court recognized that searches of mobile electronic devices implicate unique privacy interests in Riley v. California, 134 S. Ct. 2473 (2014). The Court observed that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The Court rejected the government’s argument that “a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical items.” In the Court’s words, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” The Court held that the Fourth Amendment requires police to obtain a warrant based on probable cause before searching a phone seized during an arrest. Id. at 2488, 2494–95.
7. In this lawsuit, Plaintiffs challenge: (a) searches by CBP and ICE of travelers’ electronic devices in violation of the First and Fourth Amendments; and (b) prolonged seizures, i.e., confiscation of travelers’ electronic devices for weeks or months to effectuate searches after travelers leave the border, in violation of the Fourth Amendment.
8. Two written directives expressly authorize the challenged searches and confiscations:
a. CBP’s 2009 directive titled “Border Searches of Electronic Devices Containing Information” (“CBP’s 2009 Policy”);1 and
1 https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf.
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b. ICE’s 2009 directive titled “Border Searches of Electronic Devices” (“ICE’s 2009 Policy”).2
9. Each directive permits warrantless and suspicionless searches and confiscations of mobile electronic devices. Neither directive requires that searches of electronic devices be authorized by a warrant based on probable cause to believe that the device contains contraband or evidence of a violation of immigration or customs laws.
10. Searching personal electronic devices without a warrant based on probable cause violates the constitutional rights of individuals to keep the private and expressive details of their lives free from unwarranted government scrutiny. Defendants’ policies and practices in searching and seizing personal electronic devices at the border eviscerate Americans’ constitutional rights to privacy and freedom of speech and association.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331. 12. This Court has authority to issue declaratory and injunctive relief under 28 U.S.C. § 2201 and § 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and its inherent equitable powers. 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
2 https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf. 4

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PARTIES Plaintiffs 14. Plaintiffs Ghassan and Nadia Alasaad are married U.S. citizens. They reside in Revere, Massachusetts, where Mr. Alasaad is a limousine driver and Ms. Alasaad is a nursing student. 15. Plaintiff Suhaib Allababidi is a U.S. citizen who resides in Texas. He owns and operates a business that sells security technology, including to federal government clients. 16. Plaintiff Sidd Bikkannavar is a U.S. citizen who resides in California. He is an optical engineer at NASA’s Jet Propulsion Laboratory. 17. Plaintiff Jérémie Dupin is a U.S. lawful permanent resident, a citizen of Haiti, and a resident of Massachusetts. He is a journalist. 18. Plaintiff Aaron Gach is a U.S. citizen who resides in California. He is an artist. 19. Plaintiff Ismail Abdel-Rasoul aka Isma’il Kushkush is a U.S. citizen who resides in Virginia. He is a freelance journalist. 20. Plaintiff Diane Maye is a U.S. citizen who resides in Florida. She is an Assistant Professor of Homeland Security at Embry-Riddle Aeronautical University and a former captain in the United States Air Force. 21. Plaintiff Zainab Merchant is a U.S. citizen who resides in Florida. She is a writer and a graduate student in international security and journalism at Harvard University.
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22. Plaintiff Mohammed Akram Shibly is a U.S. citizen who resides in New York. He is a filmmaker.
23. Plaintiff Matthew Wright is a U.S. citizen who resides in Colorado. He is a computer programmer.
Defendants 24. Defendant Elaine Duke is Acting DHS Secretary. She has authority over all DHS policies and practices, including those challenged here. Plaintiffs sue her in her official capacity. 25. Defendant Kevin M. McAleenan is Acting Commissioner of CBP, which controls U.S. ports of entry. He has authority over all CBP policies and practices, including those challenged here. Plaintiffs sue him in his official capacity. 26. Defendant Thomas D. Homan is Acting Director of ICE, which assists CBP in searching electronic devices seized at the border. He has authority over all ICE policies and practices, including those challenged here. Plaintiffs sue him in his official capacity.
ELECTRONIC DEVICES CARRIED OVER THE U.S. BORDER 27. Nearly everyone who crosses U.S. borders each day carries an electronic device of some kind. These include mobile phones (most commonly smartphones), laptops, tablets, digital cameras, and portable digital storage devices. The use of mobile phones among U.S. adults is pervasive: 95 percent own a cell phone, with 77 percent owning a smartphone.3 Similarly, more than 50 percent of U.S. adults own a tablet
3 http://www.pewinternet.org/fact-sheet/mobile/. 6

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computer.4 Travelers rely on these devices for communication (via text messages, calls, email, and social networking), navigation, shopping, banking, entertainment, news, and photography, among other functions.
28. People consistently carry electronic devices with them when they travel. Many travelers carry several electronic devices at a time, thus multiplying the data in their possession.
29. Today’s electronic devices are unlike luggage or other items a person might carry across the border.
30. Electronic devices contain massive amounts of data, and their storage capacities continue to grow. Laptops sold in 2017 can store up to two terabytes.5 Even tablet computers can be purchased with a terabyte of storage, and smartphones can store hundreds of gigabytes of data. The availability of cloud storage (i.e., data located on remote servers), email, and social media services that are accessible from electronic devices via the Internet can dramatically increase the functional capacity of a device. The storage capacity of a smartphone, laptop, or tablet can be the equivalent of hours of video files, thousands of pictures, or millions of pages of text.6
31. Electronic devices also contain a diverse array of personal, expressive, and associational information, including emails, text messages, voice mails, communications and location history, contact lists, social media postings, Internet browsing history, medical records, financial records, privileged information, videos, photos, other images,
4 http://www.pewinternet.org/fact-sheet/mobile/. 5Apple, Compare Mac models, https://www.apple.com/mac/compare/. 6 LexisNexis, How Many Pages in a Gigabyte? (2007), http://www.lexisnexis.com/applieddiscovery/lawlibrary/whitePapers/ADI_FS_PagesInA Gigabyte.pdf.
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calendars, and notes. Government officers can learn a great deal about people just by looking at the “apps” (i.e., applications) they have chosen to install, such as apps related to news, dating, religious communities, health, or foreign languages. Many people store sensitive information about other people in their devices, including professionals who have duties to secure sensitive information about their clients.
32. Electronic devices can act as portals to access cloud content, which is stored on or pulled from the remote servers of private companies. Cloud services and apps can reveal, for example, years’ worth of emails, photos, or health data such as heart rates and reproductive cycles.
33. Owners of electronic devices may not even be aware of some types of data that their devices contain, which can include historical location information, so-called “deleted” items that actually remain in digital storage, or metadata about digital files or the device itself such as time stamps or GPS coordinates created automatically by software on the device.
34. Electronic devices can also contain data that span years, particularly given that data can readily be transferred from an old device to a new one.
35. Because electronic devices contain enormous quantities of information reflecting a range of conduct over extended periods of time, their contents can be used to assemble pictures of their owners’ lives that are far more detailed, intimate, and personal than would be possible even through comprehensive searches of those individuals’ homes.
36. Electronic devices are often essential to people’s work, including that of the Plaintiffs. Many individuals rely on their mobile phones or laptop computers to
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respond to work-related email, create or edit important documents, or run their businesses. Thus, devices are essential possessions for most people. As explained below, officials’ confiscation of such devices not only violates Plaintiffs’ Fourth Amendment rights, it also significantly interferes with their economic livelihoods.
SEARCHES OF ELECTRONIC DEVICES AT THE U.S. BORDER 37. All eleven Plaintiffs were subjected to searches of their electronic devices at the U.S. border. 38. The number of border searches of electronic devices by CBP and ICE has been growing rapidly. According to CBP data, CBP conducted 14,993 electronic device searches in the first half of fiscal year 2017, meaning that CBP is on track to conduct approximately 30,000 searches this fiscal year, compared to just 8,503 searches in fiscal year 2015.7 If the rate of searches continues to grow, CBP may conduct even more searches in the next fiscal year. 39. The searches of electronic devices that border officials conduct can be (a) “manual,” (b) “forensic,” or (c) both manual and forensic searches for a single device. 40. During manual searches, officers review the contents of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or touchscreen interfaces. For example, Mr. Allababidi watched a CBP officer manually search one of his phones for at least 20 minutes. 41. Given the great volume and detail of personal information that electronic devices contain, and the ease of manually navigating them, manual searches are
7 https://www.cbp.gov/newsroom/national-media-release/cbp-releases-statisticselectronic-device-searches-0. The fiscal year runs from October 1 of the year before to September 30 of that same year. So, for example, fiscal year 2017 runs from October 1, 2016 to September 30, 2017.
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extraordinarily invasive of travelers’ privacy. With little effort, an officer without specialized training or equipment can conduct thorough manual searches, including by opening and perusing various stored files, programs, and apps, or by using a device’s built-in keyword-search function. The device searches at issue in Riley, which the Supreme Court held were unlawful without a search warrant based on probable cause, were manual searches.
42. The accessibility of cloud-based content on smartphones and other electronic devices—including email, social media, financial records, or health services— further expands the amount of private information officers could view during a manual search.
43. In a forensic search, border officials use sophisticated tools, such as software programs or specialized equipment, to evaluate information contained on a device. Although there are different types of forensic searches, many of them begin with agents making a copy of some or all data contained on a device. Forensic tools can capture all active files, deleted files, files in allocated and unallocated storage space, metadata related to activities or transactions, password-protected or encrypted data, and log-in credentials and keys for cloud accounts. They also are able to capture the same kinds of information that can be viewed in a manual search. Officials then can analyze the data they have copied using powerful programs that read and sort the device’s data even more efficiently than through manual searches.
44. CBP and ICE use various sophisticated tools to conduct forensic searches. For example, a CBP officer told Mr. Bikkannavar that “algorithms” were used to search the contents of his phone, indicating the use of one or more forensic tools. Likewise, an
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ICE agent attempted to image Mr. Wright’s laptop with MacQuisition software, and a CBP forensic scientist extracted data from the SIM card in Mr. Wright’s phone and from his camera.
45. Searches of electronic devices by CBP and ICE, regardless of the method used, are extraordinarily invasive of travelers’ privacy, given the volume and detail of highly sensitive information that the devices contain.
46. Searches of electronic devices also impinge on constitutionally protected speech and associational rights, including the right to speak anonymously, the right to private association, the right to gather and receive information, and the right to engage in newsgathering. For example, CBP officers twice searched the contents of Mr. Dupin’s phone, which contained his confidential journalistic work product, including reporting notes and images, source contact and identifying information, and communications with editors. Similarly, on three separate occasions, officers searched the contents of Mr. Kushkush’s phones, which he used for his work as a journalist, and which contained his work product, work-related photos, and lists of contacts. Such warrantless searches of travelers’ electronic devices unconstitutionally chill the exercise of speech and associational rights protected by the First Amendment.
47. Border searches of electronic devices typically occur in the “secondary inspection” or “secondary screening” area of a port of entry. The secondary inspection environment is inherently coercive. Officers wear government uniforms and carry weapons, and they command travelers to enter and remain in the secondary inspection areas. Travelers are not free to exit those areas until officers permit them to leave. The areas are unfamiliar to travelers and closed off from the public areas of the airports or
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other ports of entry. During the inspection process, officers take possession of travelers’ passports and other belongings.
48. CBP officers often use the coercive nature of the secondary inspection environment to compel travelers to unlock their devices or disclose their device passwords. Officers also threaten to confiscate travelers’ devices if they decline to provide access to the devices. For example, Mr. and Ms. Alasaad had no meaningful choice but to disclose to a CBP officer the password to Ms. Alasaad’s phone, because the officer told them that CBP would confiscate and keep the phone if they did not provide the password.
49. CBP officers even resort to physical force in order to conduct electronic device searches. For example, when Mr. Shibly refused to hand over his phone after having done so three days earlier at the same port of entry, three CBP officers physically restrained him and took his phone. One officer squeezed his hand around Mr. Shibly’s throat, which caused him great pain and emotional distress.
CONFISCATION OF ELECTRONIC DEVICES AT THE U.S. BORDER 50. Four Plaintiffs were subjected to confiscation and prolonged seizure of
their electronic devices at the U.S. border: Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright.
51. When travelers decline to comply with government officers’ orders to unlock their devices or provide their device passwords, officers often respond by confiscating those devices. In such cases, CBP officers may also confiscate unlocked devices (i.e., devices whose content can be accessed without entering a password or other security authentication), including devices that CBP officers have already searched.
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52. These confiscations can last for months. For example, when Mr. Allababidi refused to unlock one of his phones, officers confiscated that phone and also his unlocked phone that officers had already searched. The government returned his unlocked phone more than two months later. After more than seven months, CBP still has not returned his locked phone. Similarly, when Mr. Wright refused to unlock his laptop, officers confiscated that laptop, and also his locked phone, and his camera, which did not have a locking feature. Mr. Wright received his confiscated devices 56 days later.
53. Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days.
54. These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data.
55. For example, a CBP officer told Mr. Wright that it could take a year for his devices to be returned. Mr. Wright needs these tools to perform his job as a computer programmer. Soon after CBP confiscated his laptop and phone, Mr. Wright had to spend
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$2,419.97 to buy a new laptop and phone. Similarly, Mr. Alasaad needs his phone for his work as a limousine driver, and Ms. Alasaad needs her phone for daily responsibilities, so the Alasaads had to spend approximately $1,000 to purchase two new phones. Likewise, Mr. Allababidi had to spend more than $1,000 on replacement phones.
56. When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways:
a. First, these confiscations are not justified at their inception when they are affected absent probable cause.
b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched.
c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices.
DEFENDANTS’ POLICIES ON DEVICE SEARCH AND CONFISCATION 57. CBP and ICE policies expressly authorize warrantless and suspicionless
searches and confiscations of electronic devices at the border. Data Searches
58. The 2009 CBP and ICE Policies authorize border officials to search travelers’ electronic devices without a warrant or any basis for suspecting that the devices
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contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to searches of their devices.
a. CBP’s 2009 Policy authorizes CBP officers to “examine electronic devices” and “review and analyze the information encountered at the border”— “with or without individualized suspicion.” ¶ 5.1.2. On information and belief, this policy is currently in force.
b. ICE’s 2009 Policy authorizes ICE agents to search electronic devices “with or without individualized suspicion.” ¶ 6.1. On information and belief, this policy is currently in force.
59. The 2009 Policies permit warrantless and suspicionless searches of content that raises heightened privacy concerns. Under CBP’s 2009 Policy, if digital information is protected by the attorney-client or attorney work product privilege, it is “not necessarily exempt from a border search.” ¶ 5.2.1. While officers “must seek advice from the CBP Associate/Assistant Chief Counsel before” searching it, id., that requirement provides no substantive protection. Likewise, the policy provides that “[o]ther possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.” ¶ 5.2.2. By referencing “any applicable” law and policy, CBP’s 2009 Policy does not make clear whether there are any limits on its search authority. If there are any limits, the CBP policy provides no guidance on how agents should comply with such limits.
60. Similarly, under ICE’s 2009 Policy, “a claim of privilege or personal information” may justify “special handling,” but it “does not prevent the search of a
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traveler’s information . . . .” ¶ 8.6.1. Likewise, the ICE policy acknowledges that confidential business information “may” be subject to the Trade Secrets Act, the Privacy Act, and “other laws” (¶ 8.6.2.a), but it provides no guidance on how agents should process such materials. The ICE rules on information subject to the attorney-client or attorney work product privilege (¶ 8.6.2.b), and “[o]ther possibly sensitive information, such as medical records and work-related information carried by journalists” (¶ 8.6.2.c), suffer the same flaws as the corresponding CBP rules.
Device Confiscations 61. The 2009 CBP and ICE Policies authorize confiscation of travelers’ electronic devices for weeks or months at a time in order to effectuate searches after travelers leave the border, without probable cause or any basis for suspecting that the devices contain contraband or evidence of a violation of immigration or customs laws. Nor do the policies require that travelers consent to confiscation of their devices.
a. Under CBP’s 2009 Policy, officers may confiscate devices from travelers for a “thorough” search, on-site or off-site. ¶ 5.3.1. The policy does not require that any such confiscation be pursuant to individualized suspicion of wrongdoing.
b. ICE’s 2009 Policy permits agents to confiscate devices for a “further review” on-site or off-site. ¶ 8.1.4. The policy expressly provides that agents need no individualized suspicion to do so. ¶ 6.1.
c. The policies also allow for lengthy confiscations. While the default period of CBP confiscation is five days, CBP supervisors may extend this period based on undefined “extenuating circumstances.” ¶¶ 5.3.1, 5.3.1.1. Likewise, while the default
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period of ICE confiscation is 30 days, ICE supervisors may extend this period under undefined “circumstances . . . that warrant more time.” ¶ 8.3.1.
BORDER SEARCHES AND CONFISCATIONS OF PLAINTIFFS’ ELECTRONIC DEVICES Ghassan Alasaad and Nadia Alasaad Search 1
62. On July 7, 2017, Plaintiffs Ghassan and Nadia Alasaad drove with their daughters and other family members from Revere, Massachusetts, to Quebec for a family vacation. During their return trip on July 12, 2017, they entered the United States at the border crossing near Highgate Springs, Vermont. Ghassan Alasaad had an unlocked smartphone, and Nadia Alasaad had a locked smartphone.
63. The Alasaads’ 11-year-old daughter was ill and had a high fever. 64. CBP officers directed them to secondary inspection. Mr. Alasaad explained that his daughter was ill and needed care. Nevertheless, a CBP officer took Mr. Alasaad into a small room for questioning. 65. The Alasaads observed a CBP officer in the waiting room manually searching Mr. Alasaad’s unlocked phone, which CBP officers had retrieved from the Alasaads’ car. 66. The Alasaads told a CBP supervisor that their daughter’s fever had worsened. The supervisor responded that they would have to continue waiting. Mr. Alasaad asked why the family was being detained and searched. The supervisor responded that he had simply felt like ordering a secondary inspection.
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67. After approximately five hours of detention, a CBP officer ordered Ms. Alasaad to provide the password to her locked phone. The Alasaads objected, especially because Ms. Alasaad wears a headscarf in public in accordance with her religious beliefs, and she has photos in her phone of herself without a headscarf and of her daughters that she did not want any CBP officers, especially male officers, to view.
68. The CBP officer told the Alasaads that if they did not disclose the password to Ms. Alasaad’s phone, the phone would be confiscated. Because they had no meaningful choice, the Alasaads wrote down the password.
69. The officer coerced the Alasaads into disclosing the password to Ms. Alasaad’s phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. The family had already been detained in the customs inspection building for approximately five hours.
c. The CBP officer threatened to confiscate the phone if they declined to provide the password.
d. The Alasaads were increasingly concerned about their daughter, who was ill and urgently required care and rest.
70. After the Alasaads disclosed the password, the officer told them that they could remain while their phones were searched, or depart and leave their phones behind. Ms. Alasaad told the officer that a male officer could not search her phone because it had photos of herself without a headscarf. The officer told them that it would take two hours for a female officer to arrive, and then more time to search the phone. Based on what they
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were told, the Alasaads understood that they would need to wait several hours for their phones to be searched. Exhausted and desperate to attend to their daughter’s health, the Alasaads departed without their phones. CBP officers coerced them into leaving their phones at the border, with the threat of several more hours of detention.
71. The family departed after approximately six hours of detention. 72. Approximately fifteen days later, CBP returned the two phones to the Alasaads. On information and belief, CBP’s search and seizure of Mr. Alasaad’s phone damaged its functionality. Soon after CBP returned the phone to him, he attempted to access certain media files in his WhatsApp application, including videos of his daughter’s graduation. The phone displayed the message, “Sorry, this media file doesn’t exist on your internal storage.” This problem did not occur prior to CBP’s search and seizure of the phone.
Search 2 73. On August 28, 2017, Ms. Alasaad and her 11-year-old daughter arrived from Morocco, where they had been visiting family, in New York’s John F. Kennedy International Airport. Ms. Alasaad was not carrying her smartphone with her because she had lost it while traveling. Her daughter was traveling with a locked smartphone. 74. CBP officers directed Ms. Alasaad and her daughter to a secondary inspection area. While questioning Ms. Alasaad, officers asked her to produce her phone. Ms. Alasaad informed the officers that she had lost it. Officers then searched Ms. Alasaad’s handbag and found the smartphone her daughter was using. The phone was locked.
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75. CBP officers directed Ms. Alasaad to unlock the phone. Ms. Alasaad informed the officers that she did not know the password. The officers then directed Ms. Alasaad’s daughter to write down the password on a piece of paper. She did so, because the environment was coercive, and because she was an 11-year old obeying an instruction from an adult. A CBP officer took the phone to another room for approximately 15 minutes.
76. On information and belief, one or more CBP officers searched this phone during this time. They had the means to do so (Ms. Alasaad’s daughter had provided the password to unlock it), and they had no reason to order her to unlock it other than to search it.
Suhaib Allababidi 77. On January 21, 2017, Mr. Allababidi returned from a business trip on a flight from Dubai, United Arab Emirates, to Dallas, Texas. He carried with him a locked smartphone that he used regularly for both personal and business matters inside the United States. He also carried an unlocked smartphone that he had brought on the trip because it enabled him to communicate easily while overseas. 78. At the passport control area in the Dallas-Fort Worth airport, a CBP officer directed Mr. Allababidi to a secondary inspection area. There, as CBP officers searched his belongings, Mr. Allababidi observed a CBP officer seize and manually search his unlocked phone for at least 20 minutes. The officer then returned the phone to Mr. Allababidi. 79. The officer then ordered Mr. Allababidi to unlock his other phone. Concerned about officers accessing private information on his phone, Mr. Allababidi
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declined to do so. CBP officers responded by confiscating both phones, including the unlocked phone that the officer had already searched and returned to him.
80. The government returned the unlocked phone to Mr. Allababidi more than two months later. After more than seven months, CBP still has not returned the locked phone to him.
Sidd Bikkannavar 81. On January 31, 2017, Mr. Bikkannavar flew into Houston, Texas, from Santiago, Chile, where he had been on vacation. He traveled with a locked smartphone that is the property of his employer, NASA’s Jet Propulsion Laboratory (“JPL”). Consistent with his employer’s policies, Mr. Bikkannavar used the phone for both work and personal matters. 82. At the passport control area of the Houston airport, CBP officers escorted Mr. Bikkannavar to a secondary inspection area. A CBP officer seized Mr. Bikkannavar’s phone. The officer coerced Mr. Bikkannavar into disclosing his phone’s password. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. A CPB officer had handed Mr. Bikkannavar a CBP form titled “Inspection of Electronic Devices.”8 It stated in relevant part: “All persons, baggage, and merchandise . . . are subject to inspection, search and detention. . . . [Y]our electronic device(s) has been detained for further examination, which may include copying. . . . CBP may retain documents or information . . . . Consequences of failure to provide
8 https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devicestearsheet.pdf.
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information: Collection of this information is mandatory . . . . Failure to provide information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure.”
c. Mr. Bikkannavar understood this form to mean that CBP was asserting a legal prerogative to search the contents of his phone, and that if he refused to disclose his phone password, CBP would respond by seizing his device and copying his information.
d. The first time the officer ordered Mr. Bikkannavar to disclose his phone password, Mr. Bikkannavar refused to do so, and explained that the phone belonged to his employer. He pointed out the JPL barcode and the JPL asset tag on the back of the phone. The agent then repeated his order to disclose the phone’s password. Mr. Bikkannavar complied because the agent insisted.
e. Officers did not answer Mr. Bikkannavar’s questions. f. Mr. Bikkannavar was in danger of missing his connecting flight from Houston to Los Angeles. 83. When Mr. Bikkannavar disclosed his phone password, the officer wrote it down and took the password and the phone to another room. 84. After about 30 minutes, the officer returned the phone to Mr. Bikkannavar and informed him that officers had used “algorithms” to search the contents of the phone, indicating that they used one or more forensic tools. 85. The officer also informed Mr. Bikkannavar that officers had not found any “derogatory” information about him.
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Jérémie Dupin Search 1
86. On December 22, 2016, Mr. Dupin flew from Port-au-Prince, Haiti, to Miami, Florida, where he had a connecting flight to Montreal, Quebec, to visit his daughter and take her by bus to New York City for Christmas. He had a locked smartphone with him that he used for both his work as a journalist and personal matters.
87. At the passport control area of the Miami airport, a CBP officer directed Mr. Dupin to a secondary inspection area. Mr. Dupin waited there for more than two hours. Three officers then escorted him to a smaller room, where they asked him specific questions about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked.
88. During the questioning, the officers seized Mr. Dupin’s phone and ordered him to provide the password to the phone. Because he had no meaningful choice, Mr. Dupin provided the password.
89. The officers coerced Mr. Dupin into disclosing his phone password. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Dupin was alone in an interrogation room with three CBP officers. He understood, based on the CBP officers’ tone and demeanor, that they were commanding him to disclose his password.
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c. When Mr. Dupin had told a CBP officer that he was frustrated by the delay in his processing, the officer responded by putting his hand on the holster of his gun and ordering Mr. Dupin to sit down and wait.
90. A CBP officer searched Mr. Dupin’s phone for about two hours. During some of this time, Mr. Dupin observed the officer manually searching his phone. At other times, the officer took Mr. Dupin’s phone into another room and returned periodically to ask Mr. Dupin questions about the contents of the phone, including his photos, emails, and contacts.
91. After Mr. Dupin had spent about two hours in the smaller room, the officers returned Mr. Dupin’s phone to him and told him he could leave.
Search 2 92. On December 23, 2016, Mr. Dupin traveled by bus with his seven-yearold daughter from Montreal to New York City. Mr. Dupin carried the same locked smartphone with him. 93. Mr. Dupin and his daughter arrived at the customs checkpoint at the U.S. border near midnight. A CBP officer directed Mr. Dupin and his daughter to a secondary inspection area, where they waited and tried to sleep. CBP officers arrived and asked Mr. Dupin some of the same questions officers had asked him in Miami. 94. During the questioning, the officers seized Mr. Dupin’s phone and ordered him to provide the password to the phone. As on the day before, Mr. Dupin had no meaningful choice and provided the password. 95. The officers coerced Mr. Dupin into unlocking his phone. Specifically:
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a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Dupin again understood, based on the CBP officers’ tone and demeanor, that they were commanding him to disclose his password.
c. It was the middle of the night, and the bus on which Mr. Dupin and his daughter had been traveling had already departed. Mr. Dupin did not know how or when he would be able to catch another bus to New York City.
d. Mr. Dupin was traveling with his young daughter. When the officers ordered Mr. Dupin to unlock his phone, his exhausted daughter was trying to sleep in his lap. Mr. Dupin feared that if he refused to unlock his phone, the officers would escalate the encounter, which would upset and frighten his daughter.
96. A CBP officer took Mr. Dupin’s phone into another room for about four hours. During this time, one or more CBP officers searched the phone. An officer periodically returned to ask Mr. Dupin questions about the contents of the phone, including specific photos and emails.
97. After approximately seven hours of detention on the morning of Christmas Eve, officers returned the phone to Mr. Dupin and told him that he and his daughter could catch another bus to New York City.
Aaron Gach 98. On February 23, 2017, Mr. Gach arrived at San Francisco International Airport on a flight from Belgium, where he had participated in an art exhibition displaying works that could be considered critical of the government. He traveled with a locked smartphone.
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99. A CBP officer directed Mr. Gach to a secondary inspection area, where two CBP officers asked him detailed questions about his work as an artist and the exhibition in Belgium and told him they needed to search his phone. Mr. Gach responded that he did not want the officers to search his phone, and he asked what specific information the officers were seeking. They refused to identify any information in response.
100. The CBP officers asked Mr. Gach why he did not want to submit his phone for a search. Mr. Gach responded that he believes strongly in the U.S. Constitution and in his right to privacy. The officers told Mr. Gach that his phone would be held for an indeterminate amount of time if he did not disclose his password. The CBP officers continued to demand that Mr. Gach submit to a phone search. Because he had no meaningful choice, Mr. Gach entered his password and handed over his unlocked phone.
101. The officers coerced Mr. Gach into unlocking his phone. Specifically: a. The secondary inspection setting is inherently coercive. Supra ¶¶
47–48. b. The officers repeatedly demanded that Mr. Gach produce his
phone for a search. c. The CBP officers told Mr. Gach that they would keep his phone
for an indeterminate amount of time if he did not unlock his phone for a search. 102. The officers refused to conduct a search of the phone in Mr. Gach’s
presence. Instead, they took it behind a dividing wall for approximately 10 minutes.
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103. On information and belief, one or more CBP officers searched Mr. Gach’s phone during this time. They had the means to do so (Mr. Gach had unlocked it), and they had no reason to order him to unlock it other than to search it.
104. The CBP officers then returned Mr. Gach’s phone and permitted him to leave the secondary inspection area.
Isma’il Kushkush Search 1
105. On January 9, 2016, Mr. Kushkush traveled to New York City from Stockholm, Sweden, where he had been conducting research for his master’s thesis on refugees for Columbia Journalism School. He had a locked laptop computer and two unlocked cell phones, one being a smartphone, with him. He uses his laptop and phones for his work as a journalist.
106. Upon Mr. Kushkush’s arrival at New York’s John F. Kennedy International Airport, CBP officers took him to a secondary inspection area, where they questioned him and searched his belongings. The officers searched his notebooks, which contained information related to his work as a journalist, and asked him about the contents of the notebooks.
107. The CBP officers took Mr. Kushkush’s laptop and two phones out of his sight for approximately 20 minutes. On information and belief, one or more CBP officers searched Mr. Kushkush’s two phones during this time, either manually or forensically. The officers returned the devices to Mr. Kushkush and permitted him to leave after he had spent approximately three hours in the secondary inspection area.
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Search 2 108. On January 4, 2017, Mr. Kushkush traveled to Washington, D.C. from Israel, where he had completed an internship with the Associated Press through funding from the Overseas Press Club Foundation. He carried with him a locked smartphone that he used for both professional and personal matters, and that contained his journalistic work product, work-related photos, and lists of contacts. He also carried the same locked laptop that had been previously seized by CBP, an unlocked digital camera, an unlocked voice recorder, and multiple unlocked flash drives. 109. When Mr. Kushkush arrived at Dulles International Airport, CBP officers took him to a secondary inspection area, where they questioned him, searched his notebooks, and asked about his reporting activities. They also asked Mr. Kushkush for his social media identifiers and his email address. 110. A CBP officer demanded to see Mr. Kushkush’s phone and told him to unlock it. Because he had no meaningful choice, Mr. Kushkush reluctantly complied. 111. The CBP officer coerced Mr. Kushkush into unlocking his phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Kushkush understood, based on the CBP officer’s tone and demeanor, that he was commanding Mr. Kushkush to unlock his phone.
112. Mr. Kushkush observed the CBP officer manually searching through the contents of his phone. CBP officers also took Mr. Kushkush’s laptop, voice recorder, camera, flash drives, and notebooks into another room for approximately 20 minutes. On
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information and belief, one or more CBP officers searched Mr. Kushkush’s unlocked devices during that time, either manually or forensically.
113. The officers returned the devices to Mr. Kushkush and permitted him to leave after he had spent about one and a half hours in the secondary inspection area.
Search 3 114. On July 30, 2017, Mr. Kushkush traveled by bus from Middlebury, Vermont, where he was attending a language program at Middlebury College, to Montreal, Quebec, along with other students in the program. They returned the following day, on July 31, 2017, and entered the United States at Highgate Springs, Vermont. Mr. Kushkush carried a locked smartphone with him. 115. A CBP officer directed Mr. Kushkush to secondary inspection, where he waited for approximately one hour. An officer then demanded Mr. Kushkush’s phone and the password to unlock it. The officer stated that he could seize the phone if Mr. Kushkush did not cooperate. Because he had no meaningful choice, Mr. Kushkush unlocked his phone and stated that he was doing so against his will. 116. Mr. Kushkush was coerced into unlocking his phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. The CBP officer told Mr. Kushkush that he would keep his phone for an indeterminate amount of time if Mr. Kushkush did not unlock his phone for a search.
117. The CBP officer wrote down the password to Mr. Kushkush’s phone as he unlocked it and took the phone out of Mr. Kushkush’s sight for at least one hour. On
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information and belief, one or more CBP officers then searched the phone, either manually or forensically: they had the means to do so (Mr. Kushkush had unlocked it), and they had no reason to order him to unlock the phone other than to search it.
118. After nearly three hours, two CBP officers directed Mr. Kushkush to a separate room, where they questioned him about his work as a journalist.
119. The officers permitted Mr. Kushkush to leave after he had spent approximately three and a half hours in the customs inspection building. He was given his phone to take with him.
Diane Maye 120. On June 25, 2017, Ms. Maye flew from Oslo, Norway, to Miami, Florida. She was on her way home after a vacation in Europe. She was traveling with a locked laptop computer and a locked smartphone. 121. Upon landing, a CBP officer seized Ms. Maye’s computer and phone and ordered her to unlock the devices. Because she had no meaningful choice, Ms. Maye unlocked both devices. 122. An officer coerced Ms. Maye into unlocking her computer and phone. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. She was confined alone with two CBP officers in a small room that felt to her like a police station. An officer had ordered her to enter the room.
c. Ms. Maye understood, based on the CBP officers’ tone and demeanor, that they were commanding her to unlock her devices.
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d. Ms. Maye was exhausted after 24 hours of continuous travel, and she needed to communicate with her husband, who was waiting for her.
123. Ms. Maye observed a CBP officer manually search her unlocked laptop. 124. A CBP officer seized Ms. Maye’s unlocked phone for approximately two hours. On information and belief, one or more CBP officers searched Ms. Maye’s phone during this time: they had the means to do so (Ms. Maye had unlocked it), and they had no reason to order her to unlock it other than to search it.
Zainab Merchant 125. Zainab Merchant is the founder and editor of Zainab Rights, a media organization that publishes multimedia content on the Internet on current affairs, politics, and culture, and she is a graduate student at Harvard University. 126. In March 2017, Ms. Merchant traveled from her home in Orlando, Florida to Toronto, Ontario to visit her uncle. On March 5, 2017, she went to the Toronto airport for her flight home to Orlando. She carried with her a locked laptop and a locked smartphone. 127. At a U.S. customs preclearance station at the Toronto airport, she was directed to a secondary inspection area. 128. CBP officers took Ms. Merchant’s laptop out of her sight. 129. CBP officers told her to turn over her smartphone. Ms. Merchant, who wears a headscarf in public in accordance with her religious beliefs, did not want to turn over the phone because it contained pictures of her without her headscarf that she did not want officers to see. It also contained information and communications related to her blog site. She told the CBP officers she would turn over the phone, but would not unlock it. A
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CBP officer told her that if she gave them the password, they would look through the phone quickly, but if she did not give them the password, they would detain the phone indefinitely.
130. Ms. Merchant said she was traveling alone, and that if she did not have a phone she would have no means of communicating. She also said that she needed the phone for her work and studies. A CBP officer reiterated that she could choose to unlock the phone, or have it seized indefinitely.
131. In tears, Ms. Merchant unlocked her phone. She also provided the password to unlock her laptop.
132. The CBP officers coerced Ms. Merchant into unlocking her phone and providing the password to her laptop. Specifically:
a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. CBP officers told Ms. Merchant that they would seize her phone indefinitely if she did not unlock it.
c. Ms. Merchant was traveling alone and needed her phone to communicate with her family.
133. CBP officers then began questioning Ms. Merchant about the purpose of her trip, her religious affiliation, and her blog. They specifically asked about an article she had written on her blog that described a previous border crossing experience.
134. After approximately two hours, officers gave Ms. Merchant her phone and laptop and permitted her to leave the U.S. customs preclearance area.
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135. Ms. Merchant’s laptop and phone were out of her sight for approximately one and a half hours. On information and belief, one or more CBP officers searched her laptop and phone during this time: they had the means to do so (they had the passwords), and they had no reason to seize the laptop and phone other than to search them. When the CBP officers returned the phone to Ms. Merchant and she unlocked it, the Facebook application was open to the “friends” page. It had not been open to that page when she had given up the phone.
Akram Shibly Search 1
136. Akram Shibly drove from his home in Buffalo, New York, to Toronto, Ontario, in late December 2016 for his job as a professional filmmaker. He returned on January 1, 2017, and sought to enter the United States at the Lewiston-Queenston Bridge in New York. He was traveling with a locked smartphone.
137. At the customs checkpoint, a CBP officer directed Mr. Shibly to a secondary inspection area, where officers told Mr. Shibly to fill out a form with information that included, among other things, his phone’s password. Mr. Shibly left that line of the form blank. A CBP officer examined the completed form and ordered Mr. Shibly to provide his password. Mr. Shibly told the officer that he did not feel comfortable doing so. In an accusatory manner, the officer told Mr. Shibly that if he had nothing to hide, then he should unlock his phone.
138. Because he had no meaningful choice, Mr. Shibly disengaged the lock screen of his phone, which the officer then took from him.
139. The officer coerced Mr. Shibly into unlocking his phone. Specifically:
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a. The secondary inspection setting is inherently coercive. Supra ¶¶ 47–48.
b. Mr. Shibly understood, based on the CBP officer’s tone and demeanor, that the officer was commanding him to disclose his password.
c. Mr. Shibly feared that if he refused to unlock his phone, the officer would assume he had done something wrong and treat him accordingly. Among other things, Mr. Shibly feared that if he refused to unlock his phone, the officer would detain him for the rest of the day.
140. The CBP officer took Mr. Shibly’s phone out of his sight for at least one hour. On information and belief, one or more CBP officers searched Mr. Shibly’s phone during this time: they had the means to do so (Mr. Shibly had unlocked it), and they had no reason to order him to unlock it other than to search it.
141. A CBP officer also coerced Mr. Shibly into disclosing his social media identifiers. On information and belief, CBP officers used this information to facilitate their search of Mr. Shibly’s phone as a portal to search his cloud-based apps and content.
142. A CBP officer returned Mr. Shibly’s phone and permitted him to leave the customs inspection building.
Search 2 143. On January 4, 2017, Mr. Shibly again drove from Buffalo to the Toronto area for a social outing. He returned later that day and again sought to enter the United States at the Lewiston-Queenston Bridge in New York. He was traveling with the same smartphone, but this time it was not locked, because he had not restored the lock screen that he had disengaged during the prior border crossing.
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144. At the customs checkpoint, a CBP officer again directed Mr. Shibly to a secondary inspection area inside the border station. There, a CBP officer ordered Mr. Shibly to hand over his phone. Mr. Shibly declined to do so, since officers had seized and searched his phone only three days earlier.
145. Three CBP officers approached him and used physical force to seize his phone. One of the officers squeezed his hand around Mr. Shibly’s throat, causing Mr. Shibly to suffer great pain and fear of death. Another officer restrained Mr. Shibly’s legs, and a third officer pulled Mr. Shibly’s phone from his pocket. Additional officers stood in a circle around Mr. Shibly. At no time did Mr. Shibly physically resist.
146. A CBP officer took Mr. Shibly’s phone to a separate room, out of his sight. On information and belief, one or more CBP officers searched Mr. Shibly’s phone during this time: they had the means to do so (the screen lock was still not engaged), and they had no reason to seize the phone other than to search it.
Matthew Wright 147. During March and April 2016, Matthew Wright traveled through Southeast Asia, where he participated in four Ultimate Frisbee tournaments and spent time with friends. On April 21, 2016, he flew from Tokyo, Japan, to Denver, Colorado. He had a locked smartphone, a locked laptop computer, and a camera without a locking feature. 148. At the passport control area of the Denver airport, a CBP officer directed Mr. Wright to a separate inspection area. The officer removed Mr. Wright’s laptop from its bag and ordered Mr. Wright to unlock it. Mr. Wright declined to do so. In response, CBP officers confiscated Mr. Wright’s locked laptop, locked phone, and camera.
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149. The CBP officers confiscated Mr. Wright’s devices on instructions from ICE’s Homeland Security Investigations (“HSI”), which sought “further forensic review,” according to CBP documents disclosed to Mr. Wright under the Freedom of Information Act and Privacy Act (“FOIA/PA”).
150. An officer informed Mr. Wright that it might take CBP as long as a year to return his devices to him.
151. Soon after leaving the airport, Mr. Wright spent $2,419.97 for a new laptop and phone. He is a computer programmer, and his livelihood depends on these tools.
152. CBP records show that HSI “attempted to image” Mr. Wright’s laptop with MacQuisition software. Also, a CBP forensic scientist extracted data from the SIM card in Mr. Wright’s phone and from his camera, stored the data on three thumb drives, and sent those thumb drives to other CBP officers.
153. CBP did not find any “derogatory” information about Mr. Wright, in his devices or otherwise, according to a CBP document disclosed to Mr. Wright under the FOIA/PA.
154. Mr. Wright received his devices 56 days after CBP had confiscated them. 155. On information and belief, CBP retained the information it extracted from Mr. Wright’s devices:
a. CBP extracted data from Mr. Wright’s devices. Supra ¶ 152. b. The 2009 CBP Policy provides that if a CBP officer destroys the information extracted from a traveler’s device, then the agent must document the destruction. ¶ 5.3.1.2.
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c. CBP’s documentation of its search and seizure of Mr. Wright’s devices, disclosed to Mr. Wright under the FOIA/PA, does not reflect such destruction.
FACTS RELEVANT TO ALL PLAINTIFFS 156. All Plaintiffs face a likelihood of future injury caused by the challenged policies and practices:
a. Defendants adopted the policies and practices discussed above related to searching and seizing electronic devices at the border. The frequency with which border officials enforce these policies and practices against travelers is rapidly growing. Supra ¶ 38.
b. All Plaintiffs have traveled across the U.S. border with their electronic devices multiple times. All Plaintiffs will continue to do so in the future.
c. When Plaintiffs cross the U.S. border, they will be subject to CBP’s and ICE’s policies and practices. Thus, all Plaintiffs are at great risk of constitutional harm, namely, search and seizure of their devices absent a warrant, probable cause or reasonable suspicion that their electronic devices contain contraband or evidence of a violation of immigration or customs laws. There is nothing that Plaintiffs can do to avoid this harm, except to forego international travel or to travel without any electronic devices, which would cause great hardship.
157. On information and belief, Plaintiffs are suffering the ongoing harm of CBP and ICE retaining (a) content copied from their devices or records reflecting content observed during searches of their devices, (b) content copied from their cloud-based accounts accessed through their devices or records reflecting content from their cloud-
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based accounts observed during the searches, (c) their social media identifiers, and/or (d) their device passwords.
158. Plaintiff Allababidi is suffering the ongoing harm of the confiscation of his device. He is also at imminent risk of suffering a device search so long as his device remains in CBP or ICE’s possession.
159. For these reasons, Plaintiffs are suffering and will continue to suffer irreparable harm, and have no adequate remedy at law.
160. Plaintiffs have a reasonable expectation of privacy in the content their electronic devices contain, in the content they store in the cloud that is accessible through their electronic devices, in their device passwords, and in the nature of their online presence and their social media identifiers.
161. Plaintiffs use their devices to communicate, associate, and gather and receive information privately and anonymously. Plaintiffs Dupin and Kushkush also use their devices to store sensitive journalistic work product and identifying information about their confidential sources.
162. Plaintiffs, and the many other travelers who cross the United States border every year with electronic devices, will be chilled from exercising their First Amendment rights of free speech and association, in knowing that their personal, confidential and anonymous communications and expressive material may be viewed and retained by government agents without any wrongdoing on their part.
163. Plaintiffs feel confused, embarrassed, upset, violated, and anxious about the search and confiscation of their devices. They worry that the CBP officers viewed personal information from their devices, including photos and messages; downloaded and
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retained that information; and shared it with other government agencies. This worry includes their own personal information, and also personal information from and about other people, including friends, family, and professional associates.
164. Defendants have directly performed, or aided, abetted, commanded, encouraged, willfully caused, participated in, enabled, contributed to, or conspired in the device searches, device confiscations, policies, and practices alleged above.
165. By the acts alleged above, Defendants have proximately caused harm to Plaintiffs.
166. Defendants’ conduct was done intentionally, with deliberate indifference, or with reckless disregard of Plaintiffs’ constitutional rights.
167. Defendants will continue to violate Plaintiffs’ constitutional rights unless enjoined from doing so by this Court.
COUNT I: Fourth Amendment claim for searching electronic devices
(by all Plaintiffs against all Defendants) 168. Plaintiffs herein incorporate by reference the allegations above. 169. Defendants violate the Fourth Amendment by searching the content that electronic devices contain, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
COUNT II: First Amendment claim for searching electronic devices
(all Plaintiffs against all Defendants) 170. Plaintiffs herein incorporate by reference the allegations above.
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171. Defendants violate the First Amendment by searching electronic devices that contain expressive content and associational information, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
COUNT III: Fourth Amendment claim for confiscating electronic devices (by Plaintiffs Ghassan and Nadia Alasaad, Allababidi, and Wright
against all Defendants) 172. Plaintiffs herein incorporate by reference the allegations above. 173. Defendants violate the Fourth Amendment by confiscating travelers’ electronic devices, for the purpose of effectuating searches of those devices after travelers leave the border, absent probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws. These confiscations are unreasonable at their inception, and in scope and duration.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that this Court: A. Declare that Defendants’ policies and practices violate the First and Fourth Amendments by authorizing searches of travelers’ electronic devices, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched. B. Declare that Defendants violated Plaintiffs’ First and Fourth Amendment rights by searching their electronic devices absent a warrant supported by probable cause
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that the devices contained contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
C. Enjoin Defendants from searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched.
D. Declare that Defendants’ policies and practices violate the Fourth Amendment by authorizing the confiscation of travelers’ electronic devices, for the purpose of effectuating searches of those devices after travelers leave the border, absent probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws.
E. Declare that Defendants violated the Fourth Amendment rights of Plaintiffs Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright by confiscating their electronic devices, to effectuate searches of their devices after they left the border, absent probable cause that the devices contained contraband or evidence of a violation of immigration or customs laws.
F. Declare that Defendants violated the Fourth Amendment rights of Plaintiffs Ghassan and Nadia Alasaad, Suhaib Allababidi, and Matthew Wright by confiscating their electronic devices, both locked and unlocked, for a period of unreasonable duration.
G. Enjoin Defendants (i) from confiscating travelers’ electronic devices, to effectuate searches of those devices after travelers leave the border, absent probable
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cause that the devices contain contraband or evidence of a violation of immigration or

customs laws, and (ii) in such cases, promptly to seek a warrant to search the device.

H. Enjoin Defendants to return Plaintiff Allababidi’s phone.

I. Enjoin Defendants to expunge all information gathered from, or copies

made of, the contents of Plaintiffs’ electronic devices, and all of Plaintiffs’ social media

information and device passwords.

J. Award Plaintiffs reasonable attorney’s fees and costs.

K. Grant such other and further relief as the Court deems proper.

DATED: September 13, 2017

Respectfully submitted:

Adam Schwartz (pro hac vice pending) Sophia Cope (pro hac vice pending) Aaron Mackey (pro hac vice pending) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 (phone) (415) 436-9993 (fax) adam@eff.org sophia@eff.org amackey@eff.org

Esha Bhandari (pro hac vice pending) Hugh Handeyside (pro hac vice pending) Nathan Freed Wessler (pro hac vice pending) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 (phone) (212) 549-2583 (fax) ebhandari@aclu.org hhandeyside@aclu.org nwessler@aclu.org

/s/ Jessie J. Rossman Jessie J. Rossman BBO #670685 Matthew R. Segal BBO #654489 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 (phone) (617) 451-0009 (fax) jrossman@aclum.org msegal@aclum.org

Counsel for Plaintiffs

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Certificate of Service I, Jessie J. Rossman, hereby certify that on September 13, 2017, I filed the foregoing document electronically with the Clerk of the Court through ECF, which will send a Notice of Electronic Filing to the registered participants.

DATE:September 13, 2017

/s/ Jessie J. Rossman Jessie J. Rossman

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 Case 1:17-cv-11730-DJC Document 109 Filed 11/12/19 Page 1 of 48

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

GHASSAN ALASAAD, NADIA ALASAAD, )

SUHAIB ALLABABIDI, SIDD

)

BIKKANNAVAR, JÉRÉMIE DUPIN,

)

AARON GACH, ISMAIL ABDEL-RASOUL )

a/k/a ISMA’IL KUSHKUSH, DIANE MAYE )

ZORRI, ZAINAB MERCHANT, MOHAMMED )

AKRAM SHIBLY and MATTHEW WRIGHT, )

)

Plaintiffs,

)

)

v.

)

No. 17-cv-11730-DJC

)

)

KIRSTJEN NIELSEN, Secretary of the U.S. )

Department of Homeland Security, in her

)

official capacity; KEVIN McALEENAN,

)

Acting Commissioner of U.S. Customs and

)

Border Protection, in his official capacity; and )

THOMAS HOMAN, Acting Director of U.S. )

Immigration and Customs Enforcement, in his )

official capacity,

)

)

Defendants.

)

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J.

November 12, 2019

I. Introduction

Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie

Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma’il Kushkush, Diane Maye, Zainab Merchant,

Mohammed Akram Shibly and Matthew Wright (individually, by last name and collectively,

“Plaintiffs”) bring this suit against the following persons in their official capacities: Kirstjen

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Nielsen, Secretary of the U.S. Department of Homeland Security (“DHS”),1 Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection (“CBP”), and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”). D. 7 at ¶¶ 14-26. Plaintiffs, ten U.S. citizens and one lawful permanent resident, allege that Defendants’ conduct—searching Plaintiffs’ electronic devices at ports of entry to the United States and, in some instances, confiscating the electronic devices being searched, pursuant to CBP and ICE policies—violates the Fourth Amendment (Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 at ¶¶ 1-10, 168-73. They seek declaratory and injunctive relief related to Defendants’ ongoing policies and practices as well as the searches of Plaintiffs’ electronic devices including expungement of “all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices, and all of Plaintiffs’ social media information and device passwords.” D. 7 at 40-42; D. 99 at 7-8, 12-13. Plaintiffs have now moved for summary judgment, D. 90, and Defendants have cross moved for summary judgment, D. 96. Although governmental interests are paramount at the border, where such non-cursory searches—even “basic” searches as broadly defined under CBP and ICE policies as well as the “advanced” searches of Plaintiffs’ electronic devices—amount to non-routine searches, they require reasonable suspicion that the devices contain contraband. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs’ motion, D. 90, and DENIES Defendants’ motion, D. 96. II. Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material
1 The initial suit was filed against Elaine Duke, then Acting Secretary of DHS, but Defendants substituted Nielsen as Secretary of Homeland Security pursuant to Fed. R. Civ. P. 25(d). D. 15 at 9 n.1. Defendants have not made any further substitutions since then.
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fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor,” Borges ex rel. S.M.B.W. v. SerranoIsern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly] probative.’” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). On crossmotions for summary judgment, the standards of Rule 56 remain the same, and require the courts “to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). III. Factual Summary
As perhaps evidenced by the parties’ cross motions for summary judgment, the material facts concerning the searches of Plaintiffs’ electronic devices and the policies pursuant to which CBP and ICE agents conduct border searches are undisputed. The Court gives this brief summary as background for the Plaintiffs’ claims, but otherwise addresses the material facts in the analysis of the parties’ respective legal positions below. This summary is drawn from the parties’
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statements of material facts, D. 90-2, D. 98, and D. 103-1, as well as the parties’ responses to those statements, D. 99-1 and D. 105.
The two agencies with primary responsibility for border searches are CBP and ICE. D. 902 at ¶¶ 1, 17; D. 98 at ¶ 1. Both agencies issued written policies on border searches of electronic devices in August 2009. D. 98 at ¶ 6; D. 99-1 at ¶ 6. In January 2018, CBP updated its policy to distinguish between two different types of searches, “basic” and “advanced,” and to require reasonable suspicion or a national security concern for any advanced search, but no showing of cause for a basic search. D. 98 at ¶ 7; D. 99-1 at ¶ 7. Under this policy, an advanced search is defined as “any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its contents.” D. 98 at ¶ 8; D. 99-1 at ¶ 8. The parameters of an advanced search are clearer given this definition than that adopted for a basic search, which is merely defined as “any border search that is not an advanced search.” D. 98 at ¶ 8; D. 99-1 at ¶ 8. Both CBP and ICE use the same definitions of basic and advanced searches and ICE policy also requires reasonable suspicion to perform an advanced search. D. 98 at ¶ 9; D. 99-1 at ¶ 9.2
The evidence as to the border searches of Plaintiffs’ electronic devices is largely the same as alleged in the amended complaint and as relied upon by this Court in its Memorandum & Order regarding Defendants’ motion to dismiss. Compare D. 34 at 10-16 with D. 99-1 at ¶¶ 120-149. Accordingly, the Court will not repeat all of the details of those searches again here but summarizes them and discusses some of them further below. Plaintiffs are U.S. citizens (except Dupin, who is a lawful permanent resident) who reside across the country and in Canada. D. 98 at ¶¶ 120, 124,
2 The record appears silent on whether ICE policy also includes a national security concern exception for an advanced search. See D. 91-19; D. 99-1 at ¶ 18.
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126, 128, 131, 133, 136, 143, 145, 148; D. 99-1 at ¶¶ 120, 124, 126, 128, 131, 133, 136, 143, 145, 148. Each of the eleven Plaintiffs has had their electronic devices searched at the border at least once. D. 98 at ¶¶ 51-52; D. 99-1 at ¶¶ 51-52. Some of the searches were at border crossings, id. at ¶¶ 121, 130, 135, 144, although most were at U.S. airports after a Plaintiff’s return to the United States on an international flight. Id. at ¶¶ 123, 125, 127, 129, 132, 134, 137, 140, 141-42, 146, 149; D. 105 at ¶ 125.1; United States v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015) (noting that “[i]nternational airports . . . are the ‘functional equivalent’ of an international border and thus subject to this [border search] exception”). These searches included searches of smartphones, either locked or unlocked, D. 99-1 at ¶¶ 121, 123, 125, 127, 129, 130, 132, 134, 135, 137, 140-42, 144, 147, 149, and at least as to Kushkush, Wright, and Allababidi, the search of other electronic media including, in some cases, laptop computers, id. at ¶¶ 134, 146-47; D. 105 at ¶ 125.1. Five of the Plaintiffs (Merchant, Nadia Alasaad, Dupin, Kushkush and Allababidi) have had their electronic devices searched more than once. D. 98 at ¶ 52; D. 99-1 at ¶ 52; D. 103-1 at ¶ 125.1; D. 105 at ¶ 125.1; D. 107 at 120-21. Two of the Plaintiffs, Merchant and Allababidi, have had their devices searched subsequent to the filing of the initial complaint in this case in September 2017: Merchant in September 2018, D. 98 at ¶¶ 53-54; D. 99-1 at ¶ 53, and Allababidi in July 2019, D. 103-1 at ¶ 125.1; D. 105 at ¶ 125.1. Each of the eleven Plaintiffs plans to continue to travel internationally with their electronic devices and many had or have international travel plans for later this year and into 2020. D. 99-1 at ¶¶ 170, 172, 174, 176, 178, 180, 182, 184, 186-87, 189.
Without recounting the nature and circumstances of all of the Plaintiffs’ searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her
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daughters without their headscarves as required in public by their religious beliefs. D. 99-1 at ¶¶ 122-123. During the second search, which was of her daughter’s phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad’s phone during her earlier search but was not present in the second search. D. 91-1 at ¶ 24. Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. D. 99-1 at ¶¶ 139, 142. Merchant observed a CBP officer viewing communications between her and her lawyer. D. 99-1 at ¶ 142. Dupin’s phone contained information from his work as a journalist, D. 91-4 at ¶¶ 1, 4, while Bikkannavar’s phone was a work phone officially owned by NASA’s Jet Propulsion Laboratory, D. 99-1 at ¶ 7, and containing information from his work there, see id. at ¶¶ 7, 15.
It is also undisputed that information gleaned by CBP or ICE agents during certain of these border searches of Plaintiffs’ electronic devices has been retained. Specifically, information observed by agents during the searches of the phones of Ghassan Alasaad, Nadia Alasaad, Bikkannavar, Dupin, Merchant, Shibly and Zorri has been retained. D. 99-1 at ¶ 150; D. 94. Reports containing such information note not just the fact that agents conducted a search of an electronic device, but in some instances, observations or characterizations of the information contained therein. See, e.g., D. 94 at 3 (noting absence of contraband from visual search of digital camera’s contents), 94 (noting “no derogatory items [redacted] found”), 114 (noting “[n]o derogatory observed” during media examination), 127-28 (noting the contents of a social media post). A number of Plaintiffs had their electronic devices seized during the border searches, even if CBP later returned the devices to them. D. 99-1 at ¶¶ 152, 154, 156, 160-61, 162, 166. As to
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one such Plaintiff, Wright, a computer programmer, CBP also extracted and retained data, including attempting to image his laptop with MacQuisition software and extracting data from the SIM cards in his phone and camera, D. 91-9 at ¶ 12, from his electronic devices, D. 99-1 at ¶ 151, and retained it for a period of fifty-six days, even if the parties agree that this data has now been returned to him. D. 98 at ¶ 166. IV. Procedural History
Plaintiffs instituted this action on September 13, 2017. D. 1; D. 7. On May 9, 2018, after briefing and argument, the Court denied Defendants’ motion to dismiss, D. 14, concluding that Plaintiffs had stated plausible Fourth Amendment and First Amendment claims and had standing to assert these claims and the requests for relief that they seek. D. 34. The parties each now move for summary judgment, D. 90; D. 96. The court heard the parties on the pending motions and took the matter under advisement. D. 106. V. Discussion
A. Standing As they did in their motion to dismiss, Defendants press their arguments challenging Plaintiffs’ standing in their motion for summary judgment. Defendants primarily contend that the risk of future injury is too speculative to support standing with respect to border searches and certain deficiencies with respect to Plaintiffs’ claim for expungement of data from previous border searches of their electronic devices retained by the government. On summary judgment, Plaintiffs “can no longer rest on . . . mere allegations” and must instead “set forth by affidavit or other evidence specific facts,” to establish standing, “which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal citations and quotation marks omitted).
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To establish Article III standing, Plaintiffs must demonstrate that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, __ U.S. __, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
1. Standing to Seek Injunctive or Declaratory Relief In its ruling on Defendants’ motion to dismiss, the Court ruled that Plaintiffs had demonstrated standing by plausibly alleging an injury in fact, traceable to the Defendants’ alleged conduct that was likely to be redressed by a favorable decision by the Court. D. 34 at 17-24. Since Plaintiffs were seeking injunctive and declaratory relief, the Court also held that they had met their burden of showing that there was a substantial risk that the harm will occur in the future. Id. at 24. Concluding that the risk of a future search subject to ICE and CBP policies was higher for Plaintiffs than for the general population and rejecting Defendants’ arguments that the allegations of such future harm were vague and speculative, id. at 20-24, the Court concluded that “Plaintiffs have plausibly alleged that they face a substantial risk of future harm from Defendants’ ongoing enforcement of their border electronics search policies.” Id. at 24. On a more developed record, Defendants’ challenge to Plaintiffs’ standing now at the summary judgment stage fares no better. The nature of Plaintiffs’ claimed injury remains the same (violation of constitutional rights as a result of electronic device searches conducted pursuant to official ICE and CBP border policies). Moreover, the record regarding the substantial risk of future harm has been borne out by discovery. The current record shows that agents have the potential to access information on a traveler’s past searches and that such information may be used to inform decisions on future searches. D. 90-2 at ¶¶ 25-35; D. 98 at ¶¶ 25-35. At the border, both CBP and ICE have access to CBP’s main database, TECS. D. 90-2 at ¶¶ 25-35; D. 98 at ¶¶ 25-35. TECS includes information about prior encounters between CBP and travelers at the border, including
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but not limited to “lookouts” (alerts about a traveler or vehicle that have been entered in the database by either agency or other law enforcement agencies) and the reasons for, or information discovered in, prior broad searches of electronic devices. D. 90-2 at ¶¶ 27-28, 32; D. 98 at ¶¶ 2728, 32. Agents and officers of both agencies may access and consider the information in TECS, including information about prior border searches, in deciding whether to conduct a border search of electronic devices. D. 90-2 at ¶¶ 34-35; D. 98 at ¶¶ 34-35. ICE also has its own database, Investigative Case Management (“ICM”). D. 90-2 at ¶ 45; D. 98 at ¶ 45. ICM contains information that ICE agents may access at the border including, but not limited to, prior encounters with travelers including whether they were subject to a device search. D. 90-2 at ¶ 49; D. 98 at ¶ 49. ICM can contain “an agent’s description of data in a traveler’s device, but not the data itself,” but Defendants acknowledge that “ICM information about the contents of travelers’ devices can be relevant to whether to conduct a future border search of an electronic device.” D. 90-2 at ¶¶ 5051; D. 98 at ¶¶ 50-51. Both CBP and ICE have access to CBP’s Automated Targeting System (“ATS”) that flags travelers for “additional inspection.” D. 90-2 at ¶¶ 36, 44; D. 98 at ¶¶ 36, 44. Although ATS permits the officers to access dozens of other government databases, it also contains copies of data obtained from advanced searches of electronic devices obtained during prior border encounters. D. 90-2 at ¶¶ 40-41; D. 98 at ¶¶ 40-41. “ATS may use the information copied from a traveler’s device to flag the traveler for heightened screening in the future.” D. 90-2 at ¶ 43; D. 98 at ¶ 43.
This possibility, in light of the prior searches Plaintiffs have been subjected to and their future, anticipated international travel (as discussed below), translates into a sufficient likelihood that the challenged harm (i.e., search of electronic devices without cause) may occur for Plaintiffs in the future.
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The recent additional search of Allababidi’s devices on July 6, 2019 furthers Plaintiffs’ argument as to the risk of future harm. Allababidi had previously been subject to a border search on January 24, 2017. D. 90-2 at ¶ 125. When he declined to provide the password to his locked phone, CBP seized it to conduct an examination. Id. at ¶ 125. On July 6, 2019, Allababidi arrived at the Toronto airport for a flight to Dallas, traveling with a smartphone and a laptop. D. 105 at ¶ 125.1. CBP officers searched both devices. Id. That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs’ future plans for international travel.
Defendants do not press the argument on summary judgment that Plaintiffs lack concrete plans for future international travel, but the Court notes that there is more than sufficient, undisputed evidence in the record as to both the frequency of Plaintiffs’ international travel and the specific plans by many of the Plaintiffs to do so in the future, see D. 90-2 at ¶¶ 170, 172, 174, 176, 178, 182, 187, 189; D. 98 at ¶¶ 170, 172, 174, 176, 178, 182, 187, 189. For some examples, Bikkannavar has at least eight international trips planned by September 2020 to participate in solar car races and other related activities. D. 90-2 at ¶ 174; D. 98 at ¶ 174. Further, several of Plaintiffs have work or family commitments that require regular international travel, see, e.g., D. 99-1 at ¶¶ 176, 180, and Merchant lives in Canada but studies at university in Boston and will continue to do so until her graduation in May 2020, D. 99-1 at ¶ 182.
This likelihood of the future harm of Plaintiffs being subjected to searches of their electronic devices is not undermined, as argued by Defendants, by the fact that the overall percentage of such searches is low. Specifically, Defendants point to the stipulated facts here that of the hundreds of millions of international travelers processed by CBP in FY2017, for one
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example, approximately .007% had their electronic devices searched. D. 98-7 at ¶ 13. Such evidence does not reduce the likelihood of future searches of these Plaintiffs for a number of reasons. First, the number of reported electronic devices likely is underestimated. Since the CBP calculated the total number of border searches of devices based upon closed or completed Electronic Media Reports (“EMRS”), D. 99-1 at ¶ 59, if the number of EMRs did not include all such searches, then this number may be underinclusive. The fact that there was no EMR as to the search of one of Plaintiff’s smartphones (that of Nadia Alasaad on August 28, 2017, D. 99-1 at ¶ 61), suggests that this may be the case. Moreover, although CBP and ICE conduct such searches at the border, the number of searches cited above in FY2017 refers only to CBP searches and not ICE searches as ICE does not maintain records of the number of basic searches that it conducts. D. 98-7 at ¶ 14. ICE’s recording of its advanced searches of electronic devices in FY2017—681— likely would be less than any number of basic searches of devices given that such basic searches do not involve the connection of external equipment to review, copy and analyze the device’s contents in the way that advanced searches do. Accordingly, the total number of searches of electronic devices by both agencies is underinclusive and does not permit the Court to conclude that the total percentage of all electronic device searches is as low as .007%.
Second, even if this percentage were higher, but not a significant percentage of the total number of travelers admitted to the U.S. each year, the likelihood of Plaintiffs having their electronic devices searched without cause is not a remote risk or “exceedingly low probability” of harm. D. 97 at 38 (citing Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014)). Although Defendants suggest the record only reveals that CBP and ICE officers may have access to the various agency databases, TECS, ATS and ICM, when conducting border searches, but not that they are accessed regularly in border encounters, D. 97 at 27 n.13, the record reasonably suggests
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that a traveler who has previously had an electronic device searched in the past has some greater chance of having same done in the future. Even at primary inspection, CBP officers query TECS for “lookouts” and “recent border crossings,” D. 99-1 at ¶ 29 and the TECS database includes information about prior border screenings. Id. at ¶ 34. The same is true as to secondary inspections as to the TECS database and its ATS database, which may contain copies of data from travelers’ devices, id. at ¶ 41, ICE’s ICM which contains information about prior border encounters “including whether travelers were subjected to device searches.” Id. at ¶ 49. Given these practices and the fact that, as discussed above, several of the Plaintiffs have been searched multiple times, none of Defendants’ arguments defeat standing.
For all of these reasons, the Court concludes that Plaintiffs have made sufficient showing of standing for the injunctive and declaratory relief that they seek.
2. Standing to Seek Expungement Defendants also challenge Plaintiffs’ standing to seek expungement. As Plaintiffs frame it now, they “seek to expunge information Defendants concede they retain.” D. 99 at 12. Here, Plaintiffs seek to expunge information gathered from their electronic devices (and now memorialized in officers’ reports, D. 94) and any copies made of their electronic devices, social media information and device passwords. D. 7 at 42. As previously noted in the Memorandum & Order regarding the motion to dismiss, D. 34 at 24, retention of data illegally obtained by law enforcement may constitute continuing harm sufficient to establish standing to seek expungement. See Tabbaa v. Chertoff, 509 F.3d 89, 96 n.2 (2d Cir. 2007) (stating that defendants there “properly do not contest that plaintiffs possess Article III standing based upon their demand for expungement” of data collected during border searches); Hedgepath v. Wash. Metro. Area Transit
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Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (holding plaintiff had standing to seek expungement of arrest record).
Where, as here, Plaintiffs allege that such information and data was gathered as a result of the allegedly unconstitutional border searches and such harm could be addressed by expungement, contrary to Defendants’ argument, D. 97 at 29-30, Plaintiffs have shown standing to seek expungement. While the ATS database appears to be the only database that may contain a copy of the data from an electronic device subject to an “advanced search,” D. 90-2 at ¶¶ 40-41; D. 98 at ¶¶ 40-41, CBP and ICE retain the substance of data seized from both basic and advanced searches of electronic devices as an agent’s description of same in the ICM database and TECS database could have been the result of either type of search. D. 90-2 at ¶¶ 26, 33, 50; D. 98 at ¶¶ 26, 33, 50. ICE policy permits retention of information from electronic devices that is “relevant to immigration, customs, and other law enforcement matters” and allows sharing of retained information with other law enforcement agencies. D. 99-1 at ¶¶ 22-23. CBP policy also permits retention of information on the same bases. D. 99-1 at ¶ 77. Specifically, the record indicates information retained from the device searches of the Alasaads, Bikkannavar, Dupin, Merchant, Shibly and Zorri. D. 99-1 at ¶ 150. Finally, Defendants retained information copied from Wright’s devices but have since deleted all copies of Wright’s data.3 D. 99-1 at ¶ 55, 151. Accordingly, at least these Plaintiffs, therefore, had information gleaned from the search of their electronic devices that Defendants have retained. Here, such retention constitutes the alleged ongoing and future harm as such information can be accessed by border agents and may be relevant as to whether agents otherwise might conduct a future border search of an electronic device. D. 99-1 at ¶¶ 25-
3Wright has withdrawn his request for expungement. D. 98-12. 13

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51. Accordingly, such Plaintiffs have standing to seek expungement, even as the Court reserves for discussion below whether this remedy is warranted here.
Having found standing as to Plaintiffs’ claims, the Court now turns to the merits of their claims.
B. Plaintiffs’ Fourth Amendment Claim (Count I) The parties have cross-moved for summary judgment. Plaintiffs challenge both the constitutionality of their searches and they claim that CBP and ICE policies that allow for border searches of electronic devices without a warrant—even as these policies still require no showing (for “basic” searches) and now reasonable suspicion (for “advanced” searches, subject to a national security exception which would allow for an advanced search without reasonable suspicion)—are facially violative of the Fourth Amendment’s protection against unreasonable searches and seizures.4 D. 7 at 40-42; see D. 99 at 7 (noting that Plaintiffs argue that “every warrantless, suspicionless search of the digital data on an electronic device at the border violates the Fourth Amendment,” with the exception of searches to verify that a laptop is operational and contains data). Defendants, in support of their own motion for summary judgment, argue that the border search exception to the Fourth Amendment’s warrant requirement applies to both types of searches and no further showing is constitutionally required. D. 97 at 11-12.
4 "[T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010); see City of Los Angeles, CA v. Patel, __ U.S. __, 135 S. Ct. 2443, 2449 (2015) (observing that while a facial challenge to a statute or governmental policy is “‘the most difficult . . . to mount successfully,’ the Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution” (internal citations omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))).
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The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “[A] warrantless search is per se unreasonable under the Fourth Amendment, unless one of ‘a few specifically established and well-delineated exceptions’ applies.” United States v. Wurie, 728 F.3d 1, 3 (1st Cir. 2013) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). These few exceptions all arise from the exigent situations that “make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). These exceptions to the warrant requirement include exigent circumstances, searches incident to arrest, vehicle searches and, as relevant here, border searches. United States v. Cano, 934 F.3d 1002, 1011 (9th Cir. 2019) (citing Supreme Court precedent as to each exception).
1. Border Search Exception to the Warrant Requirement The border search exception, “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country,” is one such exception. United States v. Ramsey, 431 U.S. 606, 620 (1977). As previously observed by this Court: [t]he border search serves the nation’s “paramount interest in protecting[] its territorial integrity.” Flores-Montano, 541 U.S. at 153. The rationales supporting the border search exception are the sovereign’s interest in protecting the “integrity of the border,” by “[r]egulat[ing] the collection of duties” and “prevent[ing] the introduction of contraband into this country.” Montoya de Hernandez, 473 U.S. at 538, 537; see Carroll, 267 U.S. at 154 (explaining that “[t]ravellers may be so stopped . . . because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in”). The Supreme Court has characterized customs officials’ role at the border as greater than that of “investigative law enforcement,”
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explaining that customs officers “are also charged . . . with protecting this Nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives.” Montoya de Hernandez, 473 U.S. at 544. D. 34 at 39. The Court has further described such searches as extending to examinations of “persons and property crossing into this country,” Ramsey, 431 U.S. at 616, to “prevent[] the entry of unwanted persons and effects” across the border, United States v. Flores-Montano, 541 U.S. 149, 152 (2004). “Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search exception from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” Riley v. California, 573 U.S. 373, 385 (2014) (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). That is, the border search exception is not limitless and must still be reasonable and subject to the same balancing of the level of intrusion upon an individual's privacy and its necessity for the promotion of legitimate governmental interests. D. 34 at 28-29 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985)). What the border search exception recognizes, rather than a limitless ability to conduct searches in connection with international travel, is that individuals have a reduced expectation of privacy at the international border, while the government’s “interest in preventing the entry of unwanted persons and effects is at its zenith” there. Flores-Montano, 541 U.S. at 152, 154. The balancing inquiry thus begins with the scales tipped heavily in favor of governmental interests.
2. Governmental Interests at the Border Are Paramount Defendants have a paramount interest in maintaining “territorial integrity” at the border. They define such interest to include the responsibility to “ensure the interdiction of persons and goods illegally entering or exiting the United States;” “facilitate and expedite the flow of legitimate
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travelers and trade;” “administer the . . . enforcement of the customs and trade laws of the United States;” “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States;” and “enforce and administer all immigration laws.” See D. 97 at 12 n.5 (citing 6 U.S.C. § 211); see 19 U.S.C. §§ 1461, 1496, 1582; 19 C.F.R. § 162.6. Defendants further cite the interests served by the border search exception as helping “to ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband;” and to “facilitate[] lawful trade and travel.” Id. To the extent that the government attempts to invoke “general law enforcement” purposes, that is not what gives rise to the border search exception, Cano, 934 F.3d at 1013, even as “the interdiction of contraband can serve both customs and law enforcement purposes.” United States v. Smasal, No. Crim. 15-85 JRT/BRT, 2015 WL 4622246, at *10 (D. Minn. June 19, 2015) (Report and Recommendation). “No doubt a text message or email may reveal evidence of crimes, but that is true both at and inside the border. But it is uncertain whether the evidence-gathering justification is so much stronger at the border that it supports warrantless and suspicionless searches of the phones of the millions crossing it.” United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018) (Costa, J., specially concurring). That is, as to contraband, it is the interdiction of contraband, not the mere evidence of contraband, that is a paramount concern at the border, not evidence of contraband that might be helpful in the investigations of past or future crimes. Cano, 934 F.3d at 1016-18 (recognizing “a difference between a search for contraband and a search for evidence of border-related crime,” citing among other cases, Boyd v. United States, 116 U.S. 616, 622-23 (1886)); United States v. Vergara, 884 F.3d 1309, 1317 (11th Cir. 2018) (Pryor, J., dissenting) (noting that although “searching a cell phone may lead to the discovery of physical contraband,” such a “general law enforcement justification is quite far removed from the purpose
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originally underlying the border search exception: ‘protecting this Nation from entrants who may bring anything harmful into this country’”) (quoting Montoya de Hernandez, 473 U.S. at 544); D. 34 at 40 (citing Boyd, 116 U.S. at 623).
Otherwise, the Defendants’ characterization of the government interests aligns with the Supreme Court’s and Circuit courts’ articulation of the rationale for the exception. Montoya de Hernandez, 473 U.S. at 544; see United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir. 1979) (noting that “Congress and the courts have specifically narrowed the border searches to searches conducted by customs officials in enforcement of customs laws”); United States v. Touset, 890 F.3d 1227, 1232 (11th Cir. 2018) (noting that “Congress has ‘broad powers . . . to prevent smuggling and to prevent prohibited articles from entry’ under its plenary authority ‘[t]o lay and collect Taxes, Duties, Imposts and Excises, [t]o regulate Commerce with foreign Nations,’ and ‘[t]o establish a[ ] uniform Rule of Naturalization’”) (internal citations omitted). That is, the “principal purposes” animating the border search exception are the government’s interest in identifying “travellers . . . entitled to come in” and verifying their “belongings as effects which may be lawfully brought in.” Cano, 934 F.3d at 1013 (quoting Carroll v. United States, 267 U.S. 132, 154 (1925)); D. 91-21 (CBP border search policy identifying the purpose of travelers’ inspection “to ensure they are legally eligible to enter and that their belongings are not being introduced contrary to law”). Even as the governmental interests may be broader at the border, there still must be a showing of “the degree to which [the search exception] is needed for the promotion of legitimate governmental interests,’” Riley, 573 U.S. at 385, before weighing it against the degree of intrusion on an individual’s privacy. United States v. Kim, 103 F. Supp. 3d 32, 57 (D.D.C. 2015) (noting that “[a]pplying the Riley framework, the national security concerns that underlie the enforcement of export control regulations at the border must be balanced against
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the degree to which [the defendant’s] privacy was invaded in this instance”). 3. Even Border Searches Are Not Boundless
When applying exceptions to the warrant requirement, courts must determine whether the search at issue is within the scope of the exception, i.e., whether the search furthers the underlying purpose of the exception, and whether the search, even if within the scope of the exception, intrudes upon a competing privacy interest to such an extent that a warrant or other heightened level of suspicion should still be required. Riley, 573 U.S. at 386-401.
Undisputedly, interdiction of inadmissible persons and goods are legitimate governmental interests at the border. Plaintiffs do not dispute that CBP and ICE officers have the unenviable task of screening “[o]ver one million travelers per day [who] go through U.S. ports of entry,” D. 99-1 at ¶ 14, and although they have some information about travelers (particularly those traveling by air and otherwise through agency databases), id. at ¶¶ 14, 20, they have little time to process it. See id. at ¶¶ 14, 22. Even so, the record that recites “searches of electronic devices at the border have successfully uncovered threats to national security, information pertaining to terrorism, illegal activities, contraband, and the inadmissibility of people and things,” id. at ¶¶ 37, 50, without explanation of the frequency, nature of same or the manner of the discovery of same, is not a strong counterweight to the intrusion on personal privacy evidenced by such searches. Even assuming, as Defendants assert, that some such threats (or, for other examples, evidence of criminal conduct or contradictory information regarding a traveler’s purpose for travel to the U.S., id. at ¶¶ 39-40) were uncovered in searches “without advance information or suspicion,” id. at ¶ 38-40, on this record it is not clear that such would not be uncovered even when some cause, such as reasonable suspicion, could be developed (or has been developed in other cases as discussed below) in these
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border encounters.5 Further, the CBP and ICE policies contemplate relying on some cause for certain searches and actions at the border: i.e., reasonable suspicion for advanced searches of electronic devices; and as the CBP policy contemplates, probable cause for the “retention” of “an electronic device, or copies of information from the device” when “they determine that there is probable cause to believe that the device, or copy of the contents from the device, contains evidence of a violation of a law that CBP is authorized to enforce or administer,” D. 91-18 at 910, even as this policy does not require such showing for “detention” of such devices “for a brief, reasonable period” or the retention of information relating to immigration, customs and other enforcement matters. Id.
As to the inadmissibility of travelers to the United States, the record is not clear as to what evidence of same would be revealed by a search of a traveler’s electronic device. Although Defendants suggest that an electronic device may contain contradictory information about a traveler’s stated purpose for visiting the United States, D. 99-1 at ¶ 39; D. 98-1 at ¶ 29, there is no suggestion that a search for same on the devices of the Plaintiffs would bear upon admission where ten of them are U.S. citizens and one is a lawful permanent resident of this country. D. 99-1 at ¶ 2 (acknowledging that U.S. citizens and lawful permanent residents are by definition admissible
5 Moreover, the Court notes that the CBP policy as to the reasonable standard for advanced searches includes a “national security concern” exception. To the extent that such exception is akin to the well-recognized “exigent circumstances” exception to the warrant requirement, see D. 107 at 25-26, such exception would remain available regardless of the Court’s ruling here. See Kentucky v. King, 563 U.S. 452, 460 (2011) (noting that this exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment”) (citing Mincey, 437 U.S. at 394); see also Riley, 573 U.S. at 402 (noting that exigent circumstances exception would still be available even as it ruled that a warrantless search of cell phone was not permissible as a search incident to arrest).
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once identity and citizenship are established); cf. 8 U.S.C. § 1225 (providing that an alien who presents at the border “shall be deemed . . . an applicant for admission”).
As to contraband, there are limits to the contraband that may be stored on digital devices. The forms of such contraband, as identified by Defendants, can include child pornography, classified information and counterfeit media, D. 98-1 at ¶¶ 23, 39; D. 99-1 at ¶¶ 35, 36, even as such devices may also contain evidence of contraband or other criminal or illegal conduct. D. 991 at ¶ 36. The record of the prevalence of such digital contraband encountered at the border remains unclear, even as to child pornography. D. 90-1 at 16 (noting that “[c]hild pornography, for instance, can be considered digital ‘contraband’ that may be interdicted at the border”); D. 97 at 23-24 n.6 (identifying cases involving searches that have uncovered contraband or evidence of illegality). Given the dearth of information of the prevalence of digital contraband entering the U.S. at the border, the Court cannot conclude that requiring a showing of some cause to search digital devices would obviate the deterrent effect of the border search exception. D. 99-1 at ¶ 47. “Notwithstanding the broad scope of the government’s authority at the border, the Supreme Court has suggested that even this power to search may be bounded by limits derived from the Fourth Amendment, particularly when the search cannot be characterized as ‘routine.’” Kim, 103 F. Supp. 3d at 49.
4. Border Search Exception Applies to Routine, Not Non-Routine Searches The Supreme Court has described the border search exception as applying to “routine inspections and searches of individuals or conveyances seeking to cross our borders.” AlmeidaSanchez v. United States, 413 U.S. 266, 272 (1973). “Routine searches of persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” Montoya de Hernandez, 473 U.S. at 538. “Non-routine searches, by contrast, require reasonable
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suspicion.” Molina-Gomez, 781 F.3d at 19 (citing Montoya de Hernandez, 473 U.S. at 541-42). The distinction between routine and non-routine does not turn upon the frequency of such searches, or the label the government may ascribe to it, see Kim, 103 F. Supp. 3d at 55, but the degree of invasiveness or intrusiveness of the search. Molina-Gomez, 781 F.3d at 19 (citing United States v. Braks, 842 F.2d 509, 511-12 (1st Cir. 1988)). Although many of the factors for determining whether the degree of same makes a search routine or non-routine concern physical exposure or contact with the person being searched (e.g., whether search involved exposure of intimate body parts, physical contact between agents and person subject to search, whether search exposes person to pain or danger, Braks, 842 F.2d at 512), others do not necessarily (e.g., the overall manner in which search is conducted, even whether force was used and certainly “whether the suspect’s reasonable expectations of privacy, if any, are abrogated by the search,” id.). Even where the First Circuit in Braks concluded in 1988, long before the digital devices at issue here were available or commonplace, that the search of a defendant who lifted up her skirt to reveal a bulge in girdle that contained heroin was routine, id. at 513, it was careful to note that “[w]e do not suggest that the categorization of a border search as routine or non-routine can be accomplished merely by stacking up and comparing the several factors favoring each of the two classifications.” Id. The court added that the factors above are not an “exhaustive list of equally-weighted concerns,” but instead “[u]ltimately each case must turn upon its own particularized facts.” Id.
That is, although as the court in Touset, 890 F.3d at 1234, noted, those border searches deemed non-routine have involved intrusive searches of a person, e.g., strip searches and body cavity searches, id. at 1235-38 (declining to conclude that any level of suspicion is constitutionally required for a search of electronic devices at the border, but, alternatively, finding that the agents had reasonable suspicion to search defendant’s electronic devices); Molina-Gomez, 781 F.3d at 19
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and cases cited; see Montoya de Hernandez, 473 U.S. at 541 (applying reasonable suspicion standard where traveler suspected of smuggling drugs ingested was subject to a physician’s examination), does not mean that there are no searches of property that could constitute nonroutine searches, particularly where they fall on the higher end of a continuum of invasiveness and intrusiveness than those routine searches that do not implicate such privacy concerns, like a patdown, searching checked luggage, opening and testing bottles of liquor or removing and disassembling a gas tank. Molina-Gomez, 781 F.3d at 19 and cases cited.
There are a number of reasons and “a convincing case for categorizing forensic searches of digital devices as nonroutine”: the “scale” and “sheer quantity” of personal information they contain, the “uniquely sensitive nature of that information,” and the portable nature of same such that it is neither “‘realistic nor reasonable to expect the average traveler to leave his digital devices at home when traveling.’” United States v. Kolsuz, 890 F.3d 133, 144-45 (4th Cir. 2018) (quoting United States v. Saboonchi, 990 F. Supp. 2d 536, 556 (D. Md. 2014)).
It is correct, as Defendants note, that no court has yet required a warrant for a search of an electronic device at the border. See, e.g., Kolsuz, 890 F.3d at 147 (noting that “there are no cases requiring more than reasonable suspicion for forensic cell phone searches at the border”); Vergara, 884 F.3d at 1311 (rejecting argument that border search of cell phones required a warrant or probable cause, but noting that “[a]t most, border searches require reasonable suspicion,” which had not been argued by defendant); Molina-Isidoro, 884 F.3d at 292 (noting that “not a single court addressing border searches of computers since Riley has read it to require a warrant”); United States v. Wanjiku, 919 F.3d 472, 485 (7th Cir. 2019) (noting that “no circuit court, before or after Riley, has required more than reasonable suspicion for a border search of cell phones or electronically-stored data”). There is, however, growing precedent in the weighing of
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governmental interests against privacy interests at the border of requiring a showing of reasonable suspicion at least for forensic searches of digital devices. For instance, in Molina-Gomez, the First Circuit declined to differentiate the search of the defendant’s laptop and cell phones (X-rays of which were negative for contraband, inspection confirmed that they were operational, but on which agents reviewed inculpatory text messages), instead concluding that “even assuming the search was non-routine, reasonable suspicion existed to justify the search.” Molina-Gomez, 781 F.3d at 20. The same was true, for another example, in Kolsuz, where the court ruled that “at least reasonable suspicion” was required, reasoning that “it is clear that a forensic search of a digital phone must be treated as a nonroutine border search, requiring some form of individualized suspicion.” Kolsuz, 890 F.3d at 146.
5. Plaintiff’s Privacy Interests in the Contents of their Electronic Devices The privacy interest against which the Court must balance the justifications for the border search exception is an individual’s interest in the contents of his or her electronic devices. The Court recognizes that while the “[g]overnment’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” an individual’s “expectation of privacy is less at the border than it is in the interior.” Flores-Montano, 541 U.S. at 152, 154. Still, courts have recognized the “substantial personal privacy interests” implicated by the searches of electronic devices now “capable of storing warehouses full of information.” United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013); see Riley, 573 U.S. at 393 (describing cell phones as “minicomputers that also happen to have the capacity to be used as a telephone”); Wurie, 728 F.3d at 9 (noting that “individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked”). This is true at the border as well. See Cotterman, 709 F.3d at
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964; Kim, 103 F. Supp. 3d at 50 (noting that, given their “vast storage capacity” and capacity “to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane”). The ICE and CBP policies cover the gamut of these electronic devices: the ICE policy defines electronic device as “[a]ny item that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and any other electronic or digital devices,” D. 98-4 at 3, and the CBP policy defines it as “[a]ny device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players,” D. 98-5 at 3. Smart phones and laptops, devices that Plaintiffs were carrying, can contain information such as photographs, contact information, emails and text messages, as well as information such as prescriptions, employment information, travel history and internet browsing history. D. 99-1 at ¶ 64. Here, information on Plaintiffs’ devices when the devices were searched includes attorneyclient communications, D. 99-1 at ¶142, pictures of some Plaintiffs without their required religious attire, D. 99-1 at ¶¶ 122, 139, information related to Plaintiffs’ journalism work, D. 99-1 at ¶ 129, and social media postings, D. 94 at 127-128. Even under the border search exception, it is the privacy interests implicated by unfettered access to such a trove of personal information that must be balanced against the promotion of paramount governmental interests at the border. Kim, 103 F. Supp. 3d at 55 (applying Riley).
It is in this balancing that the Supreme Court’s ruling in Riley is particularly instructive. As explained at length in the earlier Memorandum & Order, the Court rejects Defendants’ argument that Riley’s reasoning should be limited to the search incident to arrest exception, not the matter at issue there. D. 34 at 28-46. The analysis in Riley carries persuasive weight in this
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context, particularly where the Supreme Court has previously acknowledged that the search incident to arrest exception and the border search exceptions are “similar” as both are “longstanding, historically recognized exception[s] to the Fourth Amendment’s general principle that a warrant be obtained.” Ramsey, 431 U.S. at 621. Certainly, this Court is not alone in considering the analysis in Riley in resolution of a challenge to the application of the border search exception. See, e.g., Wanjiku, 919 F.3d at 484-85; Kolsuz, 890 F.3d at 140; Kim, 103 F. Supp. 3d at 54-58. In Riley, the Court analyzed the applicability of the search incident to arrest exception to searches of an arrestee’s cell phone and held that officers must secure a warrant before conducting such a search. Riley, 573 U.S. at 386. The case was the consolidation of two cases below, both of which involved police examining an arrestee’s phone subsequent to arrest, in one instance finding evidence of potential gang activity and in the other identifying the arrestee’s home address and seeking a search warrant for the premises. Id. at 378-381. The Court examined the justifications for the search incident to arrest exception, namely, the risk of harm to officers from concealed material on an arrestee’s person and the risk of destruction of evidence, and concluded that the justifications were untethered from searches of arrestees’ cell phones. Id. at 388-391. Even taking into account the reduced privacy interest of an arrestee, the Court noted that “diminished privacy interests do[] not mean that the Fourth Amendment falls out of the picture entirely.” Id. at 392. Riley further rejected the notion that searches of electronic devices are comparable to searches of physical items or persons, noting that such a comparison “is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Riley, 573 U.S. at 393. The Supreme Court further noted later in the
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opinion that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: [a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” Id. at 396-397 (emphasis in original). Riley, thus shows the challenge of applying and extending precedent concerning searches to new technology that presents a new privacy paradigm. See Carpenter v. United States, __ U.S.__, 138 S. Ct. 2206, 2222 (2018) (citing Riley, 573 U.S. at 386, ruling that the government must generally obtain a warrant to access cell phone location information and noting “[w]hen confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents”); United States v. Davis, 785 F.3d 498, 520 (11th Cir. 2015) (noting that “[j]udges cannot readily understand how . . . technologies may develop, cannot easily appreciate context, and often cannot even recognize whether the facts of the case before them raise privacy implications that happen to be typical or atypical”) (citing Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L.Rev. 801, 858–59 (2004)); Morgan v. Fairfield Cty., Ohio, 903 F.3d 553, 575 n. 3 (6th Cir. 2018) (noting “how ever-changing technology fits within the contours of these zones may continue to challenge courts”). Riley also shows the vast privacy interests against which the promotion of governmental interests must be weighed.
It is the promotion of these governmental interests by the device searches under the border search exception where the record is sparser in support of Defendants’ position. At the motion to dismiss stage, the Court noted that “the prevalence of physical transfers of illicit digital contraband across the U.S. borders (as opposed to through the internet) is unclear.” D. 34 at 41. Defendants now cite thirty-four published cases involving seizure at the border of digital contraband or
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evidence. D. 97 at 23 n.6. Even assuming that the thirty-four cases are not an exhaustive list of prosecutions resulting from border searches of electronic devices, as a percentage of all searches, this does not suggest a robust rate. CBP conducted approximately 108,000 searches of electronic devices at the border from fiscal year 2012 through fiscal year 2018. D. 90-2 at ¶ 52; D. 98 at ¶ 52. ICE does not track how many basic searches of electronic devices it conducts. D. 97 at 5. Comparing the thirty-four published cases cited by Defendants to the number of electronic devices searches performed by the CBP and over a shorter time frame than those published cases span, the number of searches that have led to seizures appears to be quite small.
Defendants also point to the broad latitude border officials have to search physical items, D. 104 at 7, but comparisons between searches for digital evidence or contraband and searches of other physical items or travelers themselves are inapposite. Riley recognized as much in responding to the government’s argument that officers could search a cell phone if there were a sufficiently similar non-digital analogue that officers could have searched by noting that “the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such a test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form.” Riley, 573 U.S. at 400.
The Court’s reasoning in Riley holds the same force when applied to border searches. Unlike a vehicle, vessel or even a home at the border, see 19 U.S.C. §§ 482, 1582, 1595(a)(2) (regarding inspections of vessels and homes), “the data stored on a cell phone is distinguished from physical records by quantity alone, [but] certain types of data are also qualitatively different.”
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Id. at 395-96. It can “reveal an individual's private interests or concerns” as evidenced by internet search and browsing history, “reveal where a person has been” through historic location information, and reveal which files a person created, accessed and when he or she did so through metadata. Id. The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches. See Cotterman, 709 F.3d at 966 (describing forensic search of digital device as “essentially a computer strip search”).
6. The Broadly Defined Basic Search and Advanced Searches of Electronic Devices are Both Non-Routine Searches
Under the CBP and ICE policies, a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns. Basic searches, defined only as any search of an electronic device that is not an advanced search, can access content from space physically resident on a device using the devices’ native operating system. D. 99-1 at ¶ 67. That is, even a basic search alone may reveal a wealth of personal information. Electronic devices carried by travelers, including smartphones and laptops, can contain a very large volume of information, including “sensitive information.” D. 99-1 at ¶¶ 63, 65-66. Such devices can contain, for some examples, prescription information, information about employment, travel history and browsing history. D. 99-1 at ¶ 64. Such information can be accessed during not just the forensic searches under the CBP and ICE policies, but also under a basic search. D. 99-1 at ¶¶ 67-71. Using a device’s native operating system, a basic search can access content from the allocated space physically present on the device, it can extend to any allocated file or information on the devices and, for devices that contain metadata, it can reveal “the date/time associated with the content, usage history, sender and receiver information or location data.” D. 99-1 at ¶¶ 67-69. Even in a basic search, agents can peruse and search the contents of the device, using the native
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search functions on the device, including, if available, a keyword search. D. 99-1 at ¶ 70. An agent conducting a basic search may use the device’s own internal search tools to search for particular words or images. D. 99-1 at ¶ 71. Accordingly, even a basic search allows for both a general perusal and a particularized search of a traveler’s personal data, images, files and even sensitive information.
This Court does not dispute that a cursory search of an electronic device—e.g., a brief look reserved to determining whether a device is owned by the person carrying it across the border, confirming that it is operational and that it contains data, D. 99 at 12—would fall within the border search exception and not require a heightened showing of cause. See, e.g., Cotterman, 709 F.3d at 960-61 (concluding that “a quick look and unintrusive search” of files on a laptop was a routine search, but a forensic search, “essentially a computer strip search” was nonroutine search requiring reasonable suspicion); Kim, 103 F. Supp. 3d at 57 (concluding that however the distinctions between a routine and forensic search are made by higher courts, the search at issue there was “qualitatively and quantitatively different from a routine border examination”). However, the range of searches that the Plaintiffs were subject to by CBP and ICE and the breadth of searches that continue to be permitted even as basic searches under the agencies’ current policies, are not such routine searches given the breadth of intrusion into personal information.
The range of searches that Plaintiffs were subject to here illustrates this breadth. Although most were conducted before the current CBP and ICE policies were adopted on January 4, 2018 (CBP), D. 99-1 at ¶ 6, and May 11, 2018 (ICE), id. at ¶ 17, the record indicates that only a few of the searches of Plaintiffs’ cellphones or laptops may have involved connection to external devices
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and would have been characterized as advanced searches under the current policies,6 while the others would have been considered basic searches (i.e., any search that is not an advanced search). These searches provided access to the photographs, contacts and data of both a personally and professionally sensitive nature. For one example, during one search of Dupin, a journalist, agents asked him about his phone’s contents including photos, emails and contacts. D. 99-1 at ¶ 130; D. 91-4 at ¶ 8. CBP agents searched the phone of Shibly, a filmmaker and graduate student, D. 99-1 at ¶ 143, on two occasions, one for approximately thirty-seven minutes, D. 99-1 at ¶ 144; D. 91-8, and officers made notes of the contents. D. 94 at 128. Agents searched the cell phone of Bikkannavar, an optical engineer at NASA’s Jet Propulsion Laboratory, D. 99-1 at ¶ 126, using what the CBP told him were “algorithms” to search his phone. D. 99-1 at ¶ 127; D. 91-3 at ¶ 12. Having had his phone searched by agents on several prior occasions, D. 99-1 at ¶ 134; D. 91-6, Kushkush, a freelance journalist, D. 99-1 at ¶ 133, had his phone taken by agents at the border and searched for an hour, D. 91-6 at ¶¶ 14-17, and then was questioned about his work as a journalist. His phone contained journalistic work product, work-related photos and lists of contacts. D. 91-6 at ¶ 8. These searches provided access to expressive content and personal contacts. For other examples, CBP agents searched the phone and laptop of Merchant, a writer, graduate student and founder and editor of a media website, D. 99-1 at ¶ 136. According to the uncontradicted attestation of Merchant, CBP officers asked her about one of her blog posts while searching her phone and laptop. D. 91-7 at ¶ 11. Her laptop and phone were taken out of her sight for one and
6 As to one such search, on April 21, 2016, Wright had his phone, laptop and camera confiscated. D. 99-1 at ¶146. CBP “extracted and obtained information” from the devices, including attempting to image the laptop. D. 99-1 at ¶ 147. As to another, Allababidi, the owner and operator of a security technology business, had his phones, containing both personal and business information, searched for at least twenty minutes and then the agents detained the devices for a number of months for further examination, including having the phones sent to the “Regional Computer Forensic Lab.” D. 99-1 at ¶¶ 124-25, 159; D. 91-2 at ¶ 4.
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a half hours and when returned her phone was open to the Facebook friends page, which it had not been when she gave officers her phone. Id. at ¶ 13. The phone of Nadia Alasaad, a nursing student, D. 99-1 at ¶ 120, was searched despite her objections that it contained photographs of her and her daughters without the headscarf that they are required to wear in public in accordance with her religious beliefs. D. 91 at ¶ 10; D. 91-1 at ¶ 10. Both her phone and the phone of her husband, Ghassan Alasaad, a limousine driver, D. 99-1 at ¶ 120, were seized and not returned to them until fifteen days later. D. 91 at ¶ 18. Upon return, media files in one application, including videos of her daughter’s graduation, indicated that they no longer existed on the phone and were not accessible. Id. at ¶ 19. Zorri, a university professor and former United States Air Force captain, D. 99-1 at ¶ 148, had her electronic devices, including her cell phone, searched for forty-five minutes, id. at ¶ 149.
Since the CBP and/or ICE adopted their search policies in 2018, the electronic devices of some Plaintiffs have also been searched in what were described as basic searches. For one example, on April 5, 2018, Merchant’s phones were searched out of her sight for approximately forty-five minutes, D. 91-7 at ¶¶ 14-21, again on July 7, 2018, D. 91-7 at ¶¶ 22-24; D. 99-1 at ¶ 141; D. 91-7, and again on September 9, 2018. D. 91-7 at ¶¶ 26-32. On this last occasion, Merchant observed a CBP officer viewing emails and text messages between herself and her lawyer. Id. at ¶ 31; D. 99-1 at ¶ 142.
An advanced search can generally reveal anything that would be discovered during a basic search. D. 99-1 at ¶ 72. In addition to data revealed during a basic search, an advanced search also may be able to uncover deleted or encrypted data and copy all of the information physically present on the device depending on the equipment, procedures and techniques used. D. 99-1 at ¶¶ 73-74. Even if a device is not connected to the internet, if information from the internet is cached
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on the device, agents can see and search the cached information. D. 99-1 at ¶ 75. That is, to the extent that the range of searches permissible as basic searches implicate privacy rights, so too as to the broader range of advanced searches.
On this record, and as Plaintiffs contend, D. 90-1 at 28; D. 107 at 11-12, the Court is unable to discern a meaningful difference between the two classes of searches in terms of the privacy interests implicated. The concerns laid out in Riley of unfettered access to thousands of pictures, location data and browsing history (which, applying the definition under the CBP and ICE policies would have qualified as a “basic search,” Riley, 573 U.S. at 379-80), apply with equal force to basic and advanced searches, particularly as a device’s native operating systems become more sophisticated and more closely mirror the capabilities of an advanced search. In light of this record, case law, and in conjunction with the lack of meaningful difference between basic and advanced searches, the Court concludes that agents and officials must have reasonable suspicion to conduct any search of entrants’ electronic devices under the “basic” searches and “advanced” searches as now defined by the CBP and ICE policies. This requirement reflects both the important privacy interests involved in searching electronic devices and the Defendant’s governmental interests at the border.
7. Reasonable Suspicion, not Probable Cause, Applies to Both Such Searches
Having not discerned a meaningful distinction between the currently defined basic search and advanced search in terms of privacy interests, reasonable suspicion should apply to both such searches at the border. Reasonable suspicion is a “common-sense conclusion[n] about human behavior upon which practical people,-including government officials, are entitled to rely.” Montoya de Hernandez, 473 U.S. at 541-42 (quoting New Jersey v. T.L.O., 469 U.S. 325, 346 (1985)). Moreover, with a reasonable suspicion standard, “officials are afforded deference due to
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their training and experience,” Abidor v. Napolitano, 990 F. Supp. 2d 260, 282 (E.D.N.Y. 2013),
and it allows authorities “‘to graduate their response to the demands of any particular situation.’”
Montoya de Hernandez, 473 U.S. at 542 (quoting United States v. Place, 462 U.S. 696, 709 n.10
(1983)). This standard is met when agents “can point to ‘specific and articulable facts’ . . .
considered together with the rational inferences that can be drawn from those facts.” Kim, 103 F.
Supp. 3d at 43 (quoting Terry v. Ohio, 392 U.S. 1, 21, 30 (1968)).
The seeds of applying reasonable suspicion7 in the border context have already been laid
by several Circuits, post-Riley,8 to the more intrusive searches of digital devices. See Kolsuz, 890
F.3d at 137; Cano, 934 F.3d at 1017; but see Touset, 890 F.3d at 1236 (concluding that “[w]e see
7 Defendants argue that Plaintiffs have effectively waived any claim that reasonable suspicion should apply here, having not raised it as a separate claim in their complaint. D. 97 at 21; see D. 104 at 13. The Court rejects this argument. First, the Court has broad discretion to fashion appropriate remedies for constitutional violations. See Fed. R. Civ. P. 54(c), (providing that judgment “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings“); see Town of Portsmouth, R.I. v. Lewis, 813 F.3d 54, 61 (1st Cir. 2016) (noting that a “plaintiff’s failure to seek a remedy in its complaint does not necessarily forego that remedy”). Second, Plaintiffs have sought broad relief, including “such other and further relief as the Court deems proper” and have consistently argued, since at least the motion to dismiss stage, that reasonable suspicion would be an alternative remedy to a probable cause standard and thus Defendants have been on notice of the possible relief, D. 99 at 8-9. Third, courts analyzing the issue of warrantless searches of electronic devices at the border have noted that review “necessarily encompasses a determination as to the applicable standard: no suspicion, reasonable suspicion of probable cause” and found no prejudice in analyzing the reasonable suspicion standard even when not fully briefed on appeal. See Cotterman, 709 F. 3d at 960. There is also no prejudice to Defendants in considering this issue as the reasonable suspicion standard, in addition to being a part of Defendants’ present policies with respect to advanced searches of electronic devices, has been repeatedly discussed in the parties’ briefing, see, e.g., D. 15 at 24; D. 19 at 24, as well as in the Court’s Memorandum & Order on the motion to dismiss, D. 34 at 44.
8 Some such seeds came pre-Riley. See Cotterman, 709 F.3d at 968 (concluding that “the forensic examination of Cotterman's computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment”); Abidor, 990 F. Supp. 2d at 280-82 (noting that "[a] comprehensive forensic search of a computer, whether a desktop or a laptop, involves a significant invasion of privacy" and that "if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required").
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no reason why we would permit traditional, invasive searches of all other kinds of property but create a special rule that will benefit offenders who now conceal contraband in a new kind of property”) (internal citation omitted).
Moreover, the reasonable suspicion that is required for the currently defined basic search and advanced search is a showing of specific and articulable facts, considered with reasonable inferences drawn from those facts, that the electronic devices contains contraband. Although this may be “a close question” on which at least two Circuits disagree, Cano, 934 F.3d at 1017-18 (noting its disagreement with the Fourth Circuit in Kolsuz, 890 F.3d at 143, on this point), the Court agrees that this formulation is consistent with the government’s interest in stopping contraband at the border and the long-standing distinction that the Supreme Court has made between the search for contraband, a paramount interest at the border, and the search of evidence of past or future crimes at the border, which is a general law enforcement interest not unique to the border. See Cano, 934 F.3d at 1018-20 (citing Boyd, 116 U.S. 616, 622-23 and concluding that border search exception authorizes warrantless searches of a cell phone only for contraband and that “border officials may conduct a forensic cell phone search only when they reasonably suspect that the cell phone contains contraband”). Although Defendants have the twin interests of protecting territorial integrity by preventing the entry of both contraband and inadmissible persons, this record does not reveal what, if any, evidence would be contained on the electronic devices, particularly of Plaintiffs, all U.S. citizens and one lawful resident alien, that would prevent their admission. Even as to an alien, where CBP posits that an electronic device might contain contradictory information about his/her intentions to work in the U.S. contrary to the limitations of a visa, D. 98-1 at ¶ 29, there is no indication as to the frequency of same or the necessity of unfettered access to the trove of personal information on electronic devices for this purpose. See
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Riley, 573 U.S. at 398-99 (rejecting extension of the Gant standard for warrantless vehicle searches to cell phones given the breadth of data, unrelated to any present crime, that a cell phone could provide such that application of the standard to cell phones “would in effect give “‘police officers unbridled discretion to rummage at will among a person’s private effects’”) (internal citation omitted). Moreover, this standard focused on discovery of contraband reflects the judicial preference “to provide clear guidance to law enforcement through categorical rules.” Riley, 573 U.S. at 399.
Even if the CBP’s and ICE’s adoption of a reasonable suspicion standard for advanced searches is not a concession that such standard is constitutionally required, it is at least an acknowledgment that the legal tide is turning in this direction and, more importantly, that even border searches may lend themselves to such showing. In January 2018, CBP revised its directive concerning border searches of electronic devices to make a distinction between basic and advanced searches and to require reasonable suspicion or a national security concern for an advanced search. D. 99-1 at ¶ 7. CBP officers have procedures for conducting advanced searches of electronic devices based on reasonable suspicion. D. 90-2 at ¶ 116. ICE agents use the same definitions of basic and advanced searches as CBP and ICE policy is to only conduct advanced searches when there is reasonable suspicion, D. 99-1 at ¶ 9; see also D. 98-2 at ¶ 12. Both agencies provide training on the reasonable suspicion standard, D. 90-2 at ¶ 118, and border agents have experience with applying this standard. D. 91-12 at 79-80.
The same is true where courts have not necessarily required reasonable suspicion for searches of electronic devices at the border but concluded this standard had been met by the agents in a particular case. Wanjiku, 919 F.3d at 488-489 (holding that customs agents had good faith belief that warrantless border search of electronic devices did not violate the Fourth Amendment
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and that search was supported by reasonable suspicion); Touset, 890 F.3d at 1237 (concluding, alternatively, that agents had reasonable suspicion to search the defendant’s electronic devices); Molina-Isidoro, 884 F.3d at 289 (declining to announce general rules with respect to border searches and electronic devices because search was supported by probable cause); Molina-Gomez, 781 F.3d at 19-20 (declining to determine whether search was non-routine or routine, but noting that reasonable suspicion standard for non-routine search had been met); Abidor, 990 F. Supp. 2d at 283 (concluding that “agents certainly had reasonable suspicion supporting further inspection of Abidor’s electronic devices”); United States v. Hampe, No. 07-3-B-W, 2007 WL 1192365, at *4 (D. Me. Apr. 18, 2007) (concluding that “even if the Court were to entertain the proposition that reasonable suspicion is required to search a computer at the border, the peculiar facts presented to the officers in this case gave rise to a reasonable suspicion”). Most of these cases, although not all, involved electronic devices that contained contraband (as opposed to evidence of contraband). Wanjiku, 919 F.3d at 477-78 (child pornography); Touset, 890 F.3d at 1237 (same); MolinaGomez, 781 F.3d at 17 (laptop and Playstation contained hides of heroin); Hampe, 2007 WL 1192365, at *4 (child pornography). The same is true of more than half of the broader array of published cases cited by Defendants, some of which were issued prior to Riley, D. 97 at 23 n.6. Although the Court understands Defendants’ contention that it might be impracticable to require a warrant for all searches of electronic devices at the border, D. 99-1 at ¶¶ 43, 45, 48, impracticability is not the touchstone for the legal analysis here, rather the touchstone is reasonableness. Riley, 573 U.S. at 381 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Moreover, impracticality lessens where the cause required here is that of an investigatory stop, that need not be known in advance, but where CBP and ICE agents have the “emerging tableau” of primary and secondary inspections to determine if reasonable suspicion exists for the search of electronic
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devices for contraband. United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001) (addressing reasonable suspicion for an investigative stop which, justified at the inception, must also reveal that “the officer’s subsequent actions were fairly responsive to the emerging tableau—the circumstances originally warranting the stop, informed by what occurred, and what the officer learned, as the stop progressed”). It is this emerging tableau that the agents will be responding to (and for which they are already implementing and preparing to implement as to advanced searches), and which agents have already done as reflected in the border search cases referenced above.
Although the border search exception and the search incident to arrest exception are similar, narrow exceptions to the search warrant requirement, the Court recognizes the governmental interests are different at the border and holds that reasonable suspicion and not the heightened warrant requirement supported by probable cause that Plaintiffs seek here and as applied to the search in Riley is warranted here. Accordingly, the Court ALLOWS IN PART Plaintiffs’ motion for summary judgment as to Count I and DENIES Defendants’ motion for summary judgment as to this Count.
C. Plaintiffs’ First Amendment Claim (Count II) Plaintiffs, in addition to their Fourth Amendment claims, argue that the First Amendment’s protections require border agents to seek a warrant before searching travelers’ electronic devices. Plaintiffs’ argument relies on the uncontested fact that the contents of electronic devices include “highly sensitive information concerning Plaintiffs’ personal, privileged, confidential, and anonymous communications and associations.” D. 90-1 at 23. The parties also agree that such information and materials constitute or include expressive materials that implicate First Amendment issues. D. 90-1 at 23; D. 97 at 23-24.
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The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” U.S. Const. amend. I. As the Court noted in ruling on the motion to dismiss, these rights “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” D. 34 at 47 (citing Bates v. City of Little Rock, 361 U.S. 516, 523 (1960)). For instance, “associational rights . . . can be abridged even by government actions that do not directly restrict individuals’ ability to associate freely.” Lyng v. Int’l Union, UAW, 485 U.S. 360, 367 n.5 (1988); see AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (explaining that compulsory “disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation”); Baird v. State Bar of Ariz., 401 U.S. 1, 6-7 (1971) (explaining that “[w]hen a State seeks to inquire about an individual’s beliefs and associations a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest”).
The parties disagree on the appropriate standard for balancing governmental interest in the border searches of electronic devices against travelers’ First Amendment freedoms. D. 90-1 at 23; D. 97 at 25. The first question for such analysis is whether the border searches of electronic devices of Plaintiffs and under the CBP and ICE policies burden those freedoms at all. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342-45 (1995); Boy Scouts of Am. v. Dale, 530 U.S. 640, 657–59 (2000). As the Court noted at the motion to dismiss stage, the policies at issue here are content-neutral. D. 34 at 48. Compelled disclosure of First Amendment protected activity, however, can itself be a burden. See Buckley v. Valeo, 424 U.S. 1, 64 (1976). Where such burden is present, as an “inevitable result of the government’s conduct in requiring disclosure,” there must be a “substantial relation between the governmental interest and the information required to be
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disclosed.” Id. at 64-65. Stated otherwise, “an infringement on [First Amendment] rights is not unconstitutional so long as it ‘serve[s] compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’” Tabbaa, 509 F.3d at 102 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)); cf. House v. Napolitano, 2012 WL 1038816, at *2, *13 (declining to dismiss First Amendment claim particularly given the allegations in the complaint that plaintiff was targeted and investigated because of his associations and the search of his laptop resulted in disclosure of same). Although it remains correct that an encounter at the border “does not strip [a citizen] of his First Amendment rights,” House, 2012 WL 1038816, at *13, here, where the paramount government interests are the interdiction of persons and goods at the border, and there is no suggestion on this developed record that Plaintiffs were targeted and investigated for their speech or associations as the plaintiff in House alleged, it is not clear what less restrictive means could be employed here. This is particularly true where the Court adopts a standard requiring that any such searches be conducted with reasonable suspicion that the electronic devices contain contraband, which is not protected speech. See New York v. Ferber, 458 U.S. 747, 763 (1982) (concluding that child pornography is not protected by the First Amendment). That is, any burden on First Amendment rights from the border agents’ viewing of any expressive materials is inextricably tied to, and therefore substantially related to, when supported by reasonable suspicion, a non-cursory searching of a traveler’s electronic devices at the border.
Although Ramsey, 431 U.S. at 624, involved Fourth Amendment and First Amendment issues, the Court’s ruling resolved the Fourth Amendment issue, holding that customs and border officers could search international mail where suspicion of contraband was present but “hav[ing] no occasion to decide whether, in the absence of the regulatory restrictions [prohibiting the reading
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of expressive material within the mail], speech would be ‘chilled,’ or, if it were, whether the appropriate response would be to apply the full panoply of Fourth Amendment requirements.” Id. at n.18. Although Ramsay did not squarely resolve the issue, a different standard for First Amendment issues from the Fourth Amendment issues is not necessarily required. United States v. Brunette, 256 F.3d 14, 16 (1st Cir. 2001) (analyzing probable cause for a search warrant for child pornography, i.e., whether there was a ‘fair probability that contraband or evidence of a crime would be found in a particular place,’ and concluding that “assessments [are] no different where First Amendment concerns may be at issue”) (internal citation omitted); see New York v. P.J. Video, Inc., 475 U.S. 868, 875 (1986) (noting “that an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally”). This is even true as the Court considers searches at the border.
Accordingly, to the extent that Count II seeks some further ruling or relief based upon Plaintiffs’ invocation of First Amendment rights, not otherwise granted as to Count I, the Court DENIES Plaintiffs’ motion for summary judgment and DENIES Defendants’ motion for summary judgment as to Count II.
D. Plaintiffs’ Seizure of Electronic Devices Claim (Count III) Certain of Plaintiffs claim that the government’s seizure of their electronic devices with the intent to search the devices after they left the border violated the Fourth Amendment due to a lack of probable cause (the same level of suspicion Plaintiffs contend should be required for a search of the devices) for the seizure at the time it was made. See Kolsuz, 890 F.3d at 141 (noting that, with respect to confiscation of an electronic device, “a seizure reasonable at its inception must remain reasonable in scope and duration to satisfy the Fourth Amendment”); Molina-Gomez, 781
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F.3d at 21 (applying same analysis to both search of defendant’s electronic devices and seizure of same). As the Court has previously noted, this claim is not coterminous with Count I since prolonged detention of electronic devices that may have been reasonable at their inception can become unreasonable. D. 34 at 46 and cases cited. The touchstone for any such detention remains reasonableness. Place, 462 U.S. at 709 (declining to adopt any outside time limitation for a Terry stop but concluding that the 90-minute detention of respondent’s luggage was sufficient to render the seizure unreasonable under the Fourth Amendment). Although the seizure in Place was not at the border, some inquiry into the reasonableness of the duration of a seizure at the border remains appropriate. Given the border context, the Supreme Court has been reluctant to adopt “hard-andfast time limits” for the reasonableness of detention. Montoya de Hernandez, 473 U.S. at 543 (citing Place, 462 at 709 n.10 and other cases). The Court is reluctant to do so here on this record, given the current CBP and ICE policies regarding same and in light of its ruling as to the reasonable suspicion requirement for non-cursory border searches of electronic devices except as follows. Where border agents seize an electronic device for non-cursory search supported by reasonable suspicion, such detention must be for a reasonable period that allows for an investigatory search for contraband. See D. 91-18 (CBP policy making a distinction between “detention” of electronic devices for “a brief, reasonable period of time” not requiring cause and “retention” of such devices or information from such devices requiring probable cause to believe they contain “evidence of a violation of law that CBP is authorized to enforce or administer” unless the information retained relates to immigration, customs and “other enforcement matters”).
Accordingly, the Court ALLOWS IN PART Plaintiffs’ motion for summary judgment as to Count III to the extent that it seeks the ruling above and DENIES Defendants’ motion for summary judgment as to same.
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E. Relief Sought 1. Expungement Not Warranted Here
As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. As addressed in the discussion of Plaintiffs’ standing, the Court understands that Plaintiffs seek such relief, at least in part, since previous border searches may lead to future border searches under the agencies’ policies. See Section V(A), supra. That is, as this Court previously held, Plaintiffs have plausibly alleged that expungement would afford them some redress as to their claims. D. 34 at 26. Still, expungement is an extraordinary measure committed to the discretion of the Court. Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 701 (5th Cir. 1997) (reversing an order commanding executive branch agencies to expunge the records of a defendant’s now overturned convictions); Chastain v. Kelley, 510 F.2d 1232, 1236 (D.C. Cir. 1975) (noting that “[e]xpungement, no less than any other equitable remedy, is one over which the trial court exercises considerable discretion,” but vacating order of expungement).
Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” Molina-Isidoro, 884 F.3d at 290 (applying the good faith exception under United States v. Leon, 468 U.S. 897 (1984) to the exclusionary rule to agents’ warrantless search of the defendant’s phone at the border). “In such circumstances, the cost of suppression—excluding the evidence from the truth-finding process— outweighs the deterrent effect suppression may have on police conduct.” Molina-Isidoro, 884 F.3d
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at 290; see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998) (noting that because the exclusionary rule “is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its ‘substantial social costs’”). Even where suppression is warranted, the remedial measure is that the fruits of the search cannot be used against the subject of the search in a criminal trial, not some further form of exclusion of these fruits. Scott, 524 U.S. at 363-64 (noting that it has “repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials” and holding that the exclusionary rule “does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees’ Fourth Amendment rights”); Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (weighing the deterrent value against the social costs and declining to apply the exclusionary rule in civil deportation hearings). If the costs of exclusion are too high in criminal trials where agents have a good faith basis for believing a search did not violate the Fourth Amendment, at least the same must be true at the border given the paramount governmental interests previously discussed, particularly where the law regarding the legality of electronic device searches has been in flux and has been the subject matter of ongoing litigation in several courts.
The same is also true of the analogous, but broader, remedy of expungement of the information obtained during searches of Plaintiffs’ electronic devices. Even where evidence obtained in an unconstitutional manner has been suppressed, a further remedy of expungement does not follow. See United States v. Fields, 756 F.3d 911, 917 (6th Cir. 2014) (declining to expunge arrest record where evidence was suppressed and such remedy was not necessary “to vindicate” the trial court’s rulings or the suppression remedy). That is, even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the
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fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. Such measures include, but are not limited to, the possibility of declaratory relief against the agency, training of border agents regarding constitutional requirements for searches, see Lopez-Mendoza, 468 U.S. at 1046 (citing, among other things, the instruction and examination in Fourth Amendment law that officers receive in concluding that deterrent effect of exclusionary rule would be met by other measures); see D. 99-1 at ¶¶ 105 (noting that CBP officers receive written guidance and training on what constitutes probable cause and how to obtain warrants), 111-112 (same regarding ICE agents), 118 (undisputed that both CBP and ICE officers receive training on reasonable suspicion); D. 91-26 at 3 (CBP accepting recommendations of Office of Inspector General audit of agency’s border searches of electronic devices), disciplinary action or other consequences against agents who violate agency policies complying with the law, see 91-28 at 6, and “because application of the [exclusionary] rule in the criminal trial context already provides significant deterrence of unconstitutional searches.” Scott, 524 U.S. at 364.
Putting aside the balancing of the deterrent effect on border agents that expungement of this information may have, Plaintiffs seek expungement also to protect them from the future harm of more likely being subject to border searches. In the civil context, a court in its discretion may order expungement for the purposes of remedying ongoing or future harm where such “is an equitable remedy designed to correct, not compensate for, the violation, and may be essential to prevent future harm as a result of the original violation.” Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 263 (5th Cir. 1984) (dismissing claim for expungement in the absence of an allegation that defendant school continues to maintain records falsely characterizing the children as “mentally retarded”); see Bruso v. United Airlines, Inc., 239 F.3d 848, 863 (7th Cir. 2001) (noting that “[a]
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court may use expungement as a means of removing the stain of the employer’s discriminatory actions from the plaintiff’s permanent work history). Still, the Court, in its discretion, must determine if such remedy is necessary, particularly where the Court is granting other forms of relief, namely, the measures noted above that may have a deterrent effect and the ruling that reasonable suspicion is required for basic and advanced searches. That is, in the future, whether information has been retained from prior searches or not, agents must be able to point to specific and articulable facts for reasonable suspicion to believe that Plaintiffs’ electronic devices contain contraband, which also addresses the concern about any likelihood, greater than the general public of U.S. citizens returning to the U.S. borders, of being subject to a non-cursory search. In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information9 taken from their digital devices given the declaratory relief provided below and ruling that reasonable suspicion is required for the basic and advanced searches.
2. Extent of Declaratory and Injunctive Relief As to declaratory relief, Plaintiffs seek: a) declaration that Defendants’ policies violate the First and Fourth Amendment facially and have violated Plaintiffs’ First and Fourth Amendment rights by authorizing and conducting searches of electronic devices absent a warrant supported by probable cause, D. 7 at 40-41 ¶¶ A-B; and b) declarations that Defendants’ policies violate the Fourth Amendment facially and have violated Plaintiffs’ Fourth Amendment rights by authorizing and conducting the confiscation of electronic devices absent probable cause, id. at 41 ¶¶ D-F. The Court grants this relief, but only to the extent consistent with its ruling here. Accordingly, the Court ALLOWS the request for declaratory relief to the following extent: the Court declares that
9 To the extent that Plaintiffs were also seeking expungement of passcodes or other means of access, the CBP policy provides for destruction of same, D. 91-18 at 7, and there is no indication in the record that such information has been retained.
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the CBP and ICE policies for “basic” and “advanced” searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of Plaintiffs’ electronic devices, without such reasonable suspicion, violated the Fourth Amendment.
As to injunctive relief, Plaintiffs seek: a) an injunction preventing Defendants from “searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws,” id. at 41 ¶ C; and b) an injunction preventing Defendants from confiscating electronic devices, with the intent to search the devices after the travelers leave the border, without probable cause and without promptly seeking a warrant for the search, id. at 41 ¶ G. Although there has been extensive briefing by both sides in this case, the bulk of that briefing focused on Plaintiffs’ standing to bring their claims and the merits of those claims and not the scope of the relief, particularly the scope of injunctive relief, sought by Plaintiffs. D. 90-1, 97, 99, 104. Given that Plaintiffs reside across the United States and Canada, were searched at different border entries and that the Plaintiffs sought a facial challenge to the constitutionality of such searches, it may be that Plaintiffs seek injunctive relief on a nationwide basis. Even if the Court had applied the warrant supported by probable cause standard reflected in Plaintiffs’ request for injunctive relief, the Court would not have imposed nationwide or universal injunction without further briefing from the parties. See Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392, 2424 (2018) (Thomas, J., concurring); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (per curiam) (affirming nationwide injunction of the Trump Administration’s travel ban); City of Chicago v. Sessions, 888 F.3d 272, 288 (7th Cir. 2018) (affirming nationwide injunction of the Trump Administration's withholding of federal
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funds from “sanctuary cities”); Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015) (affirming nationwide injunction of Deferred Action for Parents of Americans); Texas v. United States, No. 1:18-CV-00068, 2018 WL4178970, at *61-62 (Aug. 31, 2018) (declining to issue nationwide preliminary injunction halting Deferred Action for Childhood Arrivals program); Compare Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418 (2017) (concluding nationwide injunctions encourage forum shopping, hurt judicial decisionmaking and create risk of conflicting injunctions) with Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065 (2018) (concluding nationwide injunctions are not barred by statute nor the Constitution and “enable federal courts to play their essential role as a check on the political branches”). Accordingly, the Court DENIES the request for injunctive relief without prejudice. VI. Conclusion
For the foregoing reasons, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs’ motion for summary judgment, D. 90 and DENIES Defendants’ motion for summary judgment, D. 96.
So Ordered. /s/ Denise J. Casper United States District Judge
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 Case 1:17-cv-11730-DJC Document 34 Filed 05/09/18 Page 1 of 52

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

GHASSAN ALASAAD, NADIA ALASAAD, )

SUHAIB ALLABABIDI, SIDD

)

BIKKANNAVAR, JÉRÉMIE DUPIN,

)

AARON GACH, ISMAIL ABDEL-RASOUL )

a/k/a ISMA’IL KUSHKUSH, DIANE MAYE, )

ZAINAB MERCHANT, MOHAMMED

)

AKRAM SHIBLY and MATTHEW WRIGHT, )

)

Plaintiffs,

)

)

v.

)

No. 17-cv-11730-DJC

)

)

KIRSTJEN NIELSEN, Secretary of the U.S. )

Department of Homeland Security, in her

)

official capacity; KEVIN McALEENAN,

)

Acting Commissioner of U.S. Customs and

)

Border Protection, in his official capacity; and )

THOMAS HOMAN, Acting Director of U.S. )

Immigration and Customs Enforcement, in his )

official capacity,

)

)

Defendants.

)

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J.

May 9, 2018

I. Introduction

Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi (“Allababidi”), Sidd

Bikkannavar (“Bikkannavar”), Jérémie Dupin (“Dupin”), Aaron Gach (“Gach”), Ismail Abdel-

Rasoul a/k/a Isma’il Kushkush (“Kushkush”), Diane Maye (“Maye”), Zainab Merchant

(“Merchant”), Mohammed Akram Shibly (“Shibly”) and Matthew Wright (“Wright”)

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(collectively, “Plaintiffs”) bring this suit against the following persons in their official capacities: Kirstjen Nielsen (“Nielsen”), Secretary of the U.S. Department of Homeland Security (“DHS”),1 Kevin McAleenan (“McAleenan”), Acting Commissioner of U.S. Customs and Border Protection (“CBP”), and Thomas Homan (“Homan”), Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”). D. 7 ¶¶ 14-26. Plaintiffs, ten U.S. citizens and one lawful permanent resident, allege that Defendants’ conduct—searching Plaintiffs’ electronic devices at ports of entry to the United States and, in some instances, confiscating the electronic devices being searched, pursuant to CBP and ICE policies—violates the Fourth Amendment (Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 ¶¶ 1-10, 168-73. They seek declaratory and injunctive relief. D. 7 at 40-42. Defendants have now moved to dismiss. D. 14. For the reasons stated below, the Court DENIES Defendants’ motion to dismiss. II. Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). The Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). Plaintiffs “need not demonstrate that [they are] likely to prevail” at this stage, GarcíaCatalán, 734 F.3d at 102, but they must show that the combined allegations state “a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).
1 The initial suit was filed against Elaine Duke, then Acting Secretary of DHS, but Nielsen has been substituted as Secretary of Homeland Security pursuant to Fed. R. Civ. P. 25(d).
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III. Factual Background Unless otherwise noted, the following facts are drawn from Plaintiffs’ amended complaint
and accepted as true for the purposes of considering the motion to dismiss. Plaintiffs are individuals whose electronic devices have been searched by federal officers at U.S. ports of entry on at least one occasion, and who “regularly travel outside the country with their electronic devices and intend to continue doing so.” D. 7 ¶ 2. Defendants are the heads of DHS and two of its units, CBP and ICE. D. 7 ¶ 3.
In the United States, ninety-five percent of adults own a cell phone, seventy-seven percent own a smart phone and over fifty percent own a tablet computer. D. 7 ¶ 27. “Electronic devices are often essential to people’s work,” as well as “communication . . . navigation, shopping, banking, entertainment, news, and photography, among other functions.” D. 7 ¶¶ 36, 27. “Laptops sold in 2017 can store up to two terabytes” of data, tablet computers can hold up to a terabyte and “smartphones can store hundreds of gigabytes of data.” D. 7 ¶ 30. This storage capacity “can be the equivalent of hours of video files, thousands of pictures, or millions of pages of text.” Id. Electronic devices like these may also be used to access cloud storage—“data located on remote servers”—as well as email and social media applications. D. 7 ¶¶ 30, 32. Data stored on electronic devices includes “personal, expressive, and associational information” like communications, location history, contact lists, internet browsing history, photos, calendars and notes. D. 7 ¶ 31. Additionally, electronic devices store “historical location information, so-called ‘deleted’ items that actually remain in digital storage,” “metadata about digital files” and “time stamps or GPS coordinates created automatically by software on the device.” D. 7 ¶ 33.
According to public CBP data, “CBP conducted 14,993 electronic device searches in the first half of fiscal year 2017,” putting CBP “on track to conduct approximately 30,000 searches
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this fiscal year, compared to just 8,503 searches in fiscal year 2015.” D. 7 ¶ 38.2 Searches generally come in two forms: (1) “manual” searches, during which “officers review the contents of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or touchscreen interfaces”; and (2) “forensic” searches, during which officers “use sophisticated tools, such as software programs or specialized equipment, to evaluate information contained on a device,” typically starting by making a copy of the device’s data. D. 7 ¶¶ 39, 40, 43. Forensic searches “can capture all active files, deleted files, files in allocated and unallocated storage space, metadata . . . password-protected or encrypted data, and log-in credentials and keys for cloud accounts.” D. 7 ¶ 43. On occasion, officers confiscate travelers’ devices for prolonged periods. D. 7 ¶¶ 50-56.
CBP and ICE have policies that authorize and guide agents’ search of travelers’ electronic devices at border locations. D. 7 ¶¶ 8, 57-61. Both units’ policies permit searches of electronic devices without a showing of probable cause or issuance of a search warrant. D. 7 ¶¶ 9, 57.
A. The Search Policies The CBP and ICE electronic device search policies detailed below are matters of public record, published by DHS and available to the public and, accordingly, may be considered by the Court for the purposes of this motion. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co, 267 F.3d 30, 33 (1st Cir. 2001). Moreover, neither party challenges that the Court may take judicial

2 See CBP Releases Statistics on Electronic Device Searches, U.S. Customs and Border Protection

(Apr. 11, 2017), http://www.cbp.gov/newsroom/national-media-reliease/cbp-releases-statistics-

electronic-device-searches-0. Indeed, according to CBP’s reported statistics postdating Plaintiffs’

amended complaint, CBP’s electronic device search rate remained consistent in the second half of

fiscal year 2017, which ran until September 30, 2017, and the number of travelers whose electronic

devices were searched totaled 30,200. D. 18-2 at 5 n.7; CBP Releases Updated Border Search of

Electronic Device Directive and FY17 Statistics, U.S. Customs and Border Protection (Jan. 5,

2018),

http://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-

search-electronic-device-directive

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notice of these policies, but rather, request that the Court does so. See D. 18; D. 19 at 13 n.1. The Court, therefore, takes judicial notice of the following policies: ICE’s directive number 7-6.1, issued August 18, 2009, titled “Border Searches of Electronic Devices” (“ICE Policy”); CBP directive number 3340-049, issued August 20, 2009, titled “Border Searches of Electronic Devices Containing Information” (“2009 CBP Policy”);3 and CBP’s directive number 3340-049A, issued January 4, 2018, superseding the 2009 CBP Policy, titled “Border Search of Electronic Devices” (“2018 CBP Policy”), D. 18-1.
1. The ICE Policy The ICE Policy establishes procedures “to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border” and “applies to . . . all persons arriving in, departing from, or transitioning through the United States.” ICE Pol. ¶ 1.1. It states that “[a]ll electronic devices crossing U.S. borders are subject to border search,” defining “electronic devices” as “[a]ny item that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and any other electronic or digital devices.” ICE Pol. ¶¶ 8.6.1, 5.2. Under the ICE Policy, agents are authorized to search electronic devices “with or without individualized suspicion.” D. 7 ¶ 58(b); ICE Pol. ¶ 6.1. “To the extent practicable, border searches should be conducted in the presence of, or with the knowledge of, the traveler.” ICE Pol. ¶ 8.1.2. The traveler’s consent, however, is not needed for search. ICE Pol. ¶ 8.1.3.
3 As of this opinion’s publication, the 2009 ICE Policy is available at the following online address: https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf (“ICE Pol.”). The 2009 CBP Policy is available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf (“2009 CBP Pol.”).
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No individualized suspicion is required for officers to confiscate devices or “copies of information therefrom” for “further review” on- or off-site. ICE Pol. ¶¶ 6.1, 8.1.4; see D. 7 ¶ 61(b). Additionally, “[a]ssistance to complete a border search may be sought from other Federal agencies and non-Federal entities, on a case by case basis, as appropriate,” for technical or subject matter assistance. ICE Pol. ¶¶ 6.1, 8.1.4, 8.4. ICE agents “may create and transmit copies of information” when seeking assistance. ICE Pol. ¶ 8.4.4. Such assistance “is to be accomplished within a reasonable period of time.” ICE Pol. ¶ 8.4.5.a. In general, once ICE confiscates a device, ICE may retain it for “a reasonable time given the facts and circumstances of the particular search,” generally thirty days, and supervisors may extend this period under “circumstances . . . that warrant more time.” ICE Pol. ¶ 8.3.1; D. 7 ¶ 61(c).
Regarding written records of searches, “[n]othing in this policy limits the authority of Special Agents to make written notes or reports or to document impressions relating to a border encounter in ICE’s paper or electronic recordkeeping systems.” ICE Pol. ¶ 6.3. If ICE confiscates a device, agents must “provide the traveler with a copy of the applicable chain of custody form or other appropriate documentation.” ICE Pol. ¶ 8.2.4. ICE agents may seize and retain devices or copies of information contained therein if they determine there is probable cause of unlawful activity or, to “the extent authorized by law,” information “relevant to immigration, customs, and other law enforcement matters.” ICE Pol. ¶¶ 8.5.1.a-b. Copies may be shared with federal, state, local and foreign law enforcement agencies. ICE Pol. ¶ 8.5.1.c.
The ICE Policy states that copies of information “determined to be of no relevance to ICE will be destroyed . . . . within seven business days after conclusion of the border search unless circumstances require additional time” and “no later than 21 calendar days after conclusion of the border search.” ICE Pol. ¶ 8.5.1.e. Assisting agencies must return devices and data to ICE or
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“certify to ICE that any copies in its possession have been destroyed” unless they have the independent legal authority to retain copies. ICE Pol. ¶ 8.5.2. Non-federal entities must return all copies of information “as expeditiously as possible.” ICE Pol. ¶ 8.5.3.
2. The CBP Policies Given that Plaintiffs seek injunctive, prospective relief, the Court relies primarily upon the 2018 CBP Policy, as it supersedes the 2009 CBP Policy. See D. 18-1 at 2. For the purposes of any relief sought to address past harms, however, the Court briefly outlines the 2009 CBP Policy below to the extent it differs from the 2018 CBP Policy.
a) The 2018 CBP Policy The 2018 CBP Policy applies to searches performed by CBP officers, not ICE or Homeland Security Investigations (“HSI”) agents. D. 18-1 ¶ 2.7. It defines “electronic device” as “[a]ny device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players.” D. 18-1 ¶ 3.2. The 2018 CBP Policy divides electronic device searches into two categories: the basic search and the advanced search. D. 18-1 ¶ 5.1. An “advanced search” is defined as “any search in which an Officer connects external equipment . . . to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” D. 18-1 ¶ 5.1.4. It requires “reasonable suspicion of activity in violation of the laws enforced or administered by CBP” or a “national security concern,” as well as “supervisory approval,” to justify the search. Id. A supervisor must also be present during the search. D. 18-1 ¶ 5.1.5. A “basic search,” by contrast, is “[a]ny border search of an electronic device that is not an advanced search.” D. 18-1 ¶ 5.1.3. An officer may conduct such a search “with or without suspicion.” Id.
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All electronic device searches are documented. D. 18-1 ¶ 5.1.5. Additionally, all searches “should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, officer safety, or other operational considerations that make it inappropriate to permit the individual to remain present.” D. 18-1 ¶ 5.1.6. Permission to remain present, however, “does not necessarily mean that the individual shall observe the search itself.” Id.
The 2018 CBP Policy authorizes “examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications.” D. 18-1 ¶ 5.1.2. The policy prohibits an officer’s intentional search of information stored remotely, directing officers to request that travelers “disable connectivity to any network” prior to search. Id. According to the policy, “[t]ravelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents,” and “[p]asscodes or other means of access may be requested and retained as needed to facilitate” the search. D. 18-1 ¶ 5.3.1. If an officer cannot complete an inspection because of passcode or encryption protection, the officer may “detain the device pending a determination as to its admissibility, exclusion, or other disposition” or “seek technical assistance” or “use external equipment” to access the device. D. 18-1 ¶¶ 5.3.3-4.
The 2018 CBP Policy permits officers to “detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time,” which “ordinarily should not exceed five (5) days,” on- or off-site, but may be extended with supervisor approval. D. 18-1 ¶ 5.4.1. If a device is detained, the officer must issue a custody receipt to the traveler prior to the traveler’s departure, D. 18-1 ¶ 5.4.1.4, and all transfers of custody must be recorded, D. 18-1 ¶¶ 5.4.2.3, 5.6.2. CBP officers may make copies of electronic devices when seeking technical
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assistance—e.g., device access or translation assistance—or subject matter assistance “with reasonable suspicion or national security concern.” D. 18-1 ¶¶ 5.4.2.1-2. Unless assistance is sought within CBP or from ICE, requests for assistance require supervisory approval and must be documented. D. 18-1 ¶ 5.4.2.3.
If after a review of the electronic device an officer determines there is probable cause to believe it contains evidence of illegal activity, officers “may seize and retain” the device. D. 181 ¶ 5.5.1.1. “Without probable cause . . . CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the applicable system of records notice.” D. 18-1 ¶ 5.5.1.2. The 2018 CBP Policy does not limit CBP’s authority to share information from these devices, “retained in accordance with this Directive, with federal, state, local, and foreign law enforcement agencies.” D. 18-1 ¶ 5.5.1.3.
If the review does not give rise to “probable cause to seize the device or the information contained therein, any copies of the information held by CBP must be destroyed, and any electronic device must be returned” within seven days of such determination, barring special circumstances. D. 18-1 ¶ 5.4.1.2. Additionally, “[p]asscodes and other means of access obtained during the course of a border inspection . . . will be deleted or destroyed when no longer needed to facilitate the search.” D. 18-1 ¶ 5.3.2. To the extent any assistance was provided outside of CBP or ICE, the assisting agency or entity “should destroy all copies of the information conveyed.” D. 18-1 ¶ 5.5.2.2. “The destruction shall be noted in appropriate CBP systems.” D. 18-1 ¶ 5.4.1.2.
b) The 2009 CBP Policy Under the 2009 CBP Policy, which was in force at the time of Plaintiffs’ alleged border device searches, certain policies differed. The 2009 CBP Policy did not distinguish between a basic and advanced search and no level of suspicion was required for either. D. 7 ¶ 61(a); 2009
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CBP Pol. ¶ 5.1.2. Likewise, the earlier policy permitted confiscation of electronic devices for onor off-site search without any level of suspicion. D. 7 ¶ 61(a); 2009 CBP Pol. ¶ 5.3.1.
B. The Plaintiffs 1. The Alasaads
Ghassan and Nadia Alasaad are U.S. citizens and Massachusetts residents whose two smartphones were searched and retained when they were crossing the border in July 2017 from Canada to Vermont. D. 7 ¶¶ 14, 62, 70. They were traveling with their eleven-year-old daughter, who was “ill and had a high fever.” D. 7 ¶ 63. When asked, a CBP supervisor told them they were being detained and searched because he “simply felt like ordering a secondary inspection.” D. 7 ¶ 66. In a secondary inspection room, a CBP officer manually searched Ghassan’s smartphone. D. 7 ¶ 65. Several hours later, a CBP officer ordered Nadia to provide the password to her locked phone. D. 7 ¶ 67. After the officer told them that if Nadia did not disclose her password, the “phone would be confiscated,” she wrote down the password. D. 7 ¶ 68. Nadia “wears a headscarf in public in accordance with her religious beliefs” and told the officer that a male officer could not search her phone because it contained photos of her without a headscarf and the officer responded “that it would take two hours for a female officer to arrive, and then more time to search the phone.” D. 7 ¶¶ 67, 70. After approximately six hours of detention, the Alasaads departed without their two phones. D. 7 ¶¶ 70-71. The phones were returned fifteen days later. D. 7 ¶ 72. CBP’s search and seizure of Ghassan’s phone “damaged its functionality.” Id.
One month later, the Alasaads’ daughter’s locked smartphone was searched when Nadia and her daughter arrived in New York from Morocco “where they had been visiting family.” D. 7 ¶¶ 73, 75. CBP officers directed the two to a secondary inspection area. D. 7 ¶ 74. There, Nadia informed the officers that she had lost her phone, but when officers searched Nadia’s purse, they
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found her daughter’s smartphone. Id. The officers directed the Alasaads’ daughter to write down her password, and after she did, an officer “took the phone to another room for approximately 15 minutes.” D. 7 ¶ 75.
2. Allababidi In January 2017, Allababidi had his devices searched and confiscated by CBP officers when returning from a business trip on a flight from Dubai to Dallas. D. 7 ¶¶ 77-80. A U.S. citizen who lives in Texas and owns and operates a business that sells security technology, Allababidi carried a locked smartphone “that he used regularly for both personal and business matters” in the U.S. and an unlocked smartphone that “enabled him to communicate easily while overseas.” D. 7 ¶¶ 15, 77. A CBP officer directed Allababidi to a secondary inspection area, where he observed an officer “seize and manually search his unlocked phone for at least 20 minutes.” D. 7 ¶ 78. The officer ordered Allababidi to unlock his other phone, and when he declined, officers confiscated both smartphones. D. 7 ¶ 79. One phone was returned two months later, and the other had not been returned at the time the amended complaint was filed. D. 7 ¶ 80.
3. Bikkannavar Bikkannavar, a U.S. citizen residing in California, returned from a vacation in Chile with a locked smartphone owned by his employer, NASA’s Jet Propulsion Laboratory, which he used for work and personal matters. D. 7 ¶¶ 16, 81. CBP officers escorted Bikkannavar to a secondary inspection area, where an officer gave him a CBP form that Bikkannavar understood to “mean that CBP was asserting a legal prerogative to search the contents of his phone.” D. 7 ¶ 82. After initially declining to do so, Bikkannavar disclosed his password, which an officer wrote down and took, with Bikkannavar’s phone, to another room. D. 7 ¶¶ 82-83. The officer returned about thirty minutes later, informed Bikkannavar that officers had used “algorithms” to search its contents, and returned the phone. D. 7 ¶ 84.
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4. Dupin Dupin, a journalist, citizen of Haiti and legal permanent resident of the U.S. living in Massachusetts, was subject to two device searches in December 2016. D. 7 ¶¶ 17, 86-97. In the first, Dupin connected in Miami, Florida, en route from Port-au-Prince, Haiti to Montreal, Quebec, where he was visiting his daughter to take her by bus to New York City. D. 7 ¶ 86. A CBP officer escorted Dupin to a secondary inspection area in Miami, where he waited for over two hours before being escorted to a smaller room for questioning “about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked” by three CBP officers. D. 7 ¶ 87. During questioning, officers seized Dupin’s locked smartphone and ordered him to provide a password, which he did. D. 7 ¶ 88. An officer searched Dupin’s phone for “about two hours” during which, at certain points, the officer took Dupin’s phone “into another room,” returning “periodically to ask Mr. Dupin questions about the contents of the phone.” D. 7 ¶ 90. The officers then returned the phone and permitted him to leave. D. 7 ¶ 91. The next day, December 23, 2016, Dupin and his seven-year-old daughter traveled by bus from Montreal to New York. D. 7 ¶ 92. At the customs checkpoint “near midnight,” a CBP officer directed them to a secondary inspection area, where officers asked “some of the same questions officers had asked in Miami” as his daughter was “[a]sleep in his lap.” D. 7 ¶¶ 93, 95(d). The officers seized his phone, obtained his password, and took the “phone into another room for about four hours,” again returning periodically with specific questions about the phone’s contents. D. 7 ¶¶ 94, 96. “After approximately seven hours of detention,” on the morning of December 24, 2016, officers returned the phone to Dupin and told him that he and his daughter could leave. D. 7 ¶ 97.
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5. Gach Gach, an artist and U.S. citizen who lives in California, had his locked smartphone searched on arrival in San Francisco from Belgium, “where he had participated in an art exhibition displaying works that could be considered critical of the government.” D. 7 ¶ 18, 98-104. He was questioned “about his work as an artist and the exhibition in Belgium” in a secondary inspection area, and, when asked for his phone, told the officers that he did not want the officers to search it. D. 7 ¶ 99. After “[t]he officers told [him]that his phone would be held for an indeterminate amount of time if he did not disclose his password,” Gach entered his password and handed the officers his unlocked phone. D. 7 ¶ 100. The officers searched Gach’s phone “behind a dividing wall for approximately 10 minutes” and then returned the phone to him and permitted him to leave. D. 7 ¶¶ 102-04.
6. Kushkush Kushkush—a U.S. citizen and freelance journalist from Virginia—had his devices searched on three occasions between January 2016 and July 2017. D. 7 ¶¶ 19, 105-19. First, in New York, Kushkush, while returning from conducting research for a master’s thesis in Stockholm, Sweden, was questioned by CBP officers, who also seized his locked laptop and two unlocked cell phones. D. 7 ¶¶ 105-07. They searched the devices out of his sight for around twenty minutes before returning them to him. D. 7 ¶ 107. In January 2017, Kushkush flew to Washington, D.C. from Israel, where he had completed an internship with the Associated Press, carrying a “locked smartphone that he used for both professional and personal matters,” the same locked laptop and unlocked devices including a digital camera, voice recorder and flash drives. D. 7 ¶ 108. In a secondary inspection area, CBP officers questioned him “about his reporting activities,” asked for his social media identifiers and email address, and instructed Kushkush to unlock his phone. D. 7 ¶¶ 109-10. Kushkush
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“reluctantly complied” and observed the officer manually search the phone. D. 7 ¶¶ 110-12. Officers took the other devices “into another room for approximately 20 minutes.” D. 7 ¶ 112. The officers returned the devices and he was permitted to leave. D. 7 ¶ 113.
In July 2017, Kushkush returned to the U.S. on a bus from Montreal with fellow students in a language program, and at the border, he was directed to secondary inspection. D. 7 ¶¶ 11415. Kushkush unlocked his phone for the CBP officer, “stat[ing] that he was doing so against his will,” and the officer wrote down Kushkush’s password and took the phone out of Kushkush’s sight “for at least one hour.” D. 7 ¶¶ 115-17. Officers also questioned Kushkush “about his work as a journalist.” D. 7 ¶ 118. After “approximately three and a half hours,” CBP officers returned the phone and permitted Kushkush to leave. D. 7 ¶ 119.
7. Maye Maye, a U.S. citizen from Florida, assistant professor of homeland security at EmbryRiddle Aeronautical University and former U.S. Air Force captain, flew from vacation in Oslo, Norway, to Miami with a locked laptop and smartphone. D. 7 ¶¶ 20, 120. In a secondary inspection area with two CBP officers, Maye unlocked her devices after being ordered to do so. D. 7 ¶¶ 121-22. Maye observed an officer manually search her unlocked laptop. D. 7 ¶ 123. An officer also “seized” her “unlocked phone for approximately two hours.” D. 7 ¶ 124.
8. Merchant Merchant is a U.S. citizen, founder and editor of a media organization that publishes online news content and a graduate student in international security and journalism at Harvard University. D. 7 ¶¶ 21, 125. In March 2017, after visiting her uncle in Toronto, Ontario, Merchant was directed to a secondary inspection area at a U.S. customs preclearance station in the Toronto airport prior to her flight home to Orlando. D. 7 ¶¶ 126-27. After CBP officers asked for Merchant’s smartphone, Merchant—who “wears a headscarf in public in accordance with her religious beliefs”
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and whose phone contains photos of her without her headscarf—told CBP officers she would give them the phone but not unlock it. D. 7 ¶ 129. CBP officers repeatedly told her she “could choose to unlock the phone, or have it seized indefinitely.” D. 7 ¶ 129-30. Merchant told the officers she was traveling alone and needed the phone to communicate and for her work. D. 7 ¶ 130. “In tears, Ms. Merchant unlocked her phone” and “provided the password to unlock her laptop.” D. 7 ¶ 131. CBP officers searched Merchant’s laptop and phone out of her sight for approximately one and a half hours. D. 7 ¶ 135. Officers questioned her about her religious affiliation and certain of her blog posts. D. 7 ¶ 133. “When the CBP officers returned the phone to Ms. Merchant and she unlocked it, the Facebook application was open to the ‘friends’ page. It had not been open to that page when she had given up the phone.” D. 7 ¶ 135.
9. Shibly Shibly, a U.S. citizen and filmmaker from Buffalo, New York, had his devices searched on two occasions in January 2017. D. 7 ¶¶ 22, 136-46. First, returning home by car from Canada, Shibly was directed to a secondary inspection area at the border in New York, and told to “fill out a form with information that included . . . his phone’s password.” D. 7 ¶¶ 136-37. An officer then “ordered” him to provide the password, saying that “if he had nothing to hide, then he should unlock his phone,” and Shibly “disengaged” the lock on the phone. D. 7 ¶¶ 137-38. Shibly also provided CBP officers with his social media identifiers. D. 7 ¶ 141. Shibly’s phone was taken out of his sight for an hour before it was returned and he was permitted to leave. D. 7 ¶¶ 140, 142. Three days later, Shibly was stopped on the same bridge and directed to a secondary inspection area. D. 7 ¶¶ 143-44. When he declined to hand over his phone, “[t]hree CBP officers . . . used physical force to seize his phone.” D. 7 ¶ 145. An officer took the phone—which was still unlocked from the first search—to a different room. D. 7 ¶¶ 143, 146.
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10. Wright Wright, a computer programmer from Colorado, was brought to an inspection area in the Denver airport after returning home from a trip in Southeast Asia. D. 7 ¶¶ 23, 147-48. A CBP officer ordered Wright to unlock his laptop and when Wright declined, CBP officers confiscated the laptop as well as his locked phone and his camera. D. 7 ¶ 148. According to CBP documents disclosed to Wright in a Freedom of Information Act and Privacy Act (“FOIA”) request, CBP confiscated Wright’s devices pursuant to instructions from ICE’s Homeland Security Investigations (“HSI”) division, which sought “further forensic review.” D. 7 ¶ 149. These records demonstrate that HSI “attempted to image” Wright’s laptop and a CBP forensic scientist extracted data from Wright’s phone and camera, which he stored on three thumb drives he sent to other CBP officers. D. 7 ¶ 152. Wright received his devices fifty-six days later. D. 7 ¶ 154. CBP documentation from Wright’s FOIA request does not reflect destruction of the information extracted from Wright’s devices. D. 7 ¶ 155c. IV. Procedural History Plaintiffs instituted this action on September 13, 2017. D. 1; D. 7. Defendants now move to dismiss. D. 14. On April 23, 2018, the Court heard the parties on the pending motion and took the matter under advisement. D. 33. V. Discussion Defendants argue that Plaintiffs do not have standing to bring this suit, and that even if they do, they have failed to state a claim on the merits. D. 14. The Court addresses standing as a threshold inquiry because “[i]f a party lacks standing to bring a matter before the court, the court lacks jurisdiction to decide the merits of the underlying case.” United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992).
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A. Standing “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy” within Article III of the U.S. Constitution, Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547 (2016), and serves to “identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). “The law of Article III standing, which is built on separation of powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). To establish Article III standing, Plaintiffs must demonstrate that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs bear the burden of establishing standing, but “the same pleading standards apply both to standing determinations and Rule 12(b)(6) determinations.” Hochendoner v. Genzyme Corp., 823 F.3d 724, 734 (1st Cir. 2016); see Lujan, 504 U.S. at 561; Reddy v. Foster, 845 F.3d 493, 497 (1st Cir. 2017). “The ‘[f]irst and foremost’ concern in standing analysis is the requirement that the plaintiff establish an injury in fact . . . .” Reddy, 845 F.3d at 500 (quoting Spokeo, 136 S. Ct. at 1547) (alteration in original). To do so, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “[T]he imminence concept, while admittedly far reaching, is bounded by its Article III purpose: ‘to ensure that the alleged injury is not too speculative.’” Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) (quoting Lujan, 504 U.S. at 564 n.2). Where, as here, Plaintiffs seek injunctive relief, they must plausibly allege that “the threatened injury is ‘certainly impending’ or there is a ‘substantial
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risk that the harm will occur.’” Susan B. Anthony List v. Driehaus (“SBA List”), ___ U.S. ___, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper, 568 U.S. at 414, 414 n.5); see Reddy, 845 F.3d at 500. Because we are “[a]t the pleading stage, general factual allegations of injury resulting from the defendant[s’] conduct may suffice.” Lujan, 504 U.S. at 561; see Hochendoner, 823 F.3d at 731.
“[S]tanding is not dispensed in gross . . . .” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Rather, the standing inquiry is a “plaintiff-by-plaintiff and claim-by-claim analysis.” Hochendoner, 823 F.3d at 733. The Court must, therefore, determine “whether each particular plaintiff is entitled to have a federal court adjudicate each particular claim that he asserts.” Id. (quoting Pagán v. Calderón, 448 F.3d 16, 26 (1st Cir. 2006)). Defendants argue that Plaintiffs do not have standing to seek declaratory or injunctive relief for any alleged Fourth or First Amendment violations and that they also lack standing to seek expungement.4 D. 15 at 15-22. The Court addresses each claim in turn.
1. Standing to Seek Injunctive or Declaratory Relief Plaintiffs allege that they “face a likelihood of future injury caused by the challenged policies and practices . . . related to searching and seizing electronic devices at the border.” D. 7 ¶ 156. Although each Plaintiff has individual reasons for doing so, “[a]ll Plaintiffs have traveled across the U.S. border with their electronic devices multiple times” and “will continue to do so in the future.” Id. At the border, “they will be subject to CBP’s and ICE’s policies and practices . . . . namely, search or seizure of their devices absent a warrant, probable cause or reasonable
4 Defendants also argue that allegations of potentially chilled speech fail to establish standing, D. 15 at 21-22, but Plaintiffs respond that they do not rely upon “the chill of their First Amendment rights” as their alleged injury to support standing here, D. 19 at 16 n.3. The Court will not, therefore, address that theory further.
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suspicion,” and Plaintiffs cannot avoid this harm without “forego[ing] international travel or [] travel[ing] without any electronic devices, which would cause great hardship.” Id. On this basis, Plaintiffs seek to enjoin Defendants from “searching electronic devices absent a warrant supported by probable cause that the devices contain” evidence of illegal activity and from “confiscating travelers’ electronic devices, to effectuate searches of those devices after travelers leave the border, absent probable cause.” D. 7 at 41-42.
Defendants argue that Plaintiffs’ allegations fail to allege plausibly any “certainly impending” injury, Clapper, 568 U.S. at 414. D. 15 at 17. As the First Circuit explained recently, however, the Supreme Court in SBA List—which “both postdated and cited Clapper”— established a “disjunctive framing of the test: injury is imminent if it is certainly impending or if there is a substantial risk that harm will occur.” Reddy, 845 F.3d at 500 (emphasis in original). Thus, even if Plaintiffs do not allege an injury that is “certainly impending,” they may still establish standing by plausibly alleging a substantial risk that harm will occur. See id.; SBA List, 134 S. Ct. at 2341.
Defendants contend that Plaintiffs have also failed to satisfy the “substantial risk” inquiry. D. 15 at 17-19. Plaintiffs allege that CBP data demonstrates that it is on track to conduct approximately 30,000 searches this fiscal year. D. 7 ¶ 38. Defendants point out, however, that those searches only amounted to 0.008% of the approximately 189.6 million travelers who arrived at U.S. borders during this period. D. 15 at 17-18. Defendants argue that this future search probability—which they characterize as a “slight chance” of search—is not sufficient to establish standing here. D. 15 at 18.
There is no numerical threshold, however, at which likelihood of harm becomes a “substantial risk” of harm. See Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014) (noting
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that “a small probability of a great harm may be sufficient”). Although 0.008% may be a small percentage of total travelers, the searches still occur at an average of approximately 2500 searches per month. D. 7 ¶ 38. In SBA List, the Supreme Court supported its conclusion that there was a substantial likelihood of future harm with the explanation that proceedings enforcing the statute in question were “not a rare occurrence,” with twenty to eighty such cases occurring per year. SBA List, 134 S. Ct. at 2345. Against this backdrop, 30,000 searches per year is not a “rare occurrence,” even if it makes up a small percentage of total travelers. Moreover, “[e]ven a small probability of injury is sufficient to create a case or controversy—to take a suit out of the category of hypothetical—provided of course that the relief sought would, if granted, reduce the probability.” Massachusetts v. EPA, 549 U.S. 497, 525 n.23 (2007) (quoting Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th Cir. 1993)); see NRDC v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006) (holding 1 in 200,000 odds of developing skin cancer sufficient to support standing). Additionally, as the Court explains below, that four Plaintiffs here have been subjected to multiple searches, D. 7 ¶¶ 62-76, 86-97, 105-19, 136-46, suggests that the risk of future search is higher for these plaintiffs than the general population.
Defendants also argue that Plaintiffs’ allegations of future harm are impermissibly “vague” and speculative. D. 15 at 17-18. They point to Reddy for the proposition that in the First Circuit, “‘[s]peculation’ that a government actor ‘might in the future take some other and additional action detrimental to’ Plaintiffs, is ‘not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’” D. 15 at 18 (quoting Reddy, 845 F.3d at 503). In Reddy, however, the First Circuit held that the plaintiffs’ assertions of standing were speculative as to a New Hampshire buffer zone statute, emphasizing that the statute had not yet been enforced. Reddy, 845 F.3d at 496, 503. Here, by contrast, Plaintiffs challenge policies that are in place and
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are being actively enforced. D. 7 ¶¶ 37-38; see SBA List, 134 S. Ct. at 2346 (finding standing to enjoin enforcement of state statute that had been enforced for decades); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st Cir. 2003) (explaining that a “real and immediate threat” of injury may be demonstrated through an “offending policy [that] remains firmly in place”). Plaintiffs’ alleged future injury does not depend upon defendants’ future illegal conduct untethered to a pattern of past practice, cf. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (concluding that plaintiff subject to illegal arrest procedure made no showing that he was likely to be arrested and subjected to illegal procedure again), but rather upon recurring conduct authorized by official policies.
That is, Plaintiffs’ subjection to prior searches further bolsters their allegations of likely future searches. Although “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief,” Lujan, 504 U.S. at 564 (quoting Lyons, 461 U.S. at 102), “[p]ast wrongs [a]re evidence bearing on ‘whether there is a real and immediate threat of repeated injury,” Lyons, 461 U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). See, e.g., Morales v. Chadbourne, 996 F. Supp. 2d 19, 37-38 (D.R.I. 2014) (finding standing for American citizen who had been inappropriately detained by ICE twice and warned that it could happen again); Thomas v. Cty. of L.A., 978 F.2d 504, 507 (9th Cir. 1992) (explaining that the “possibility of recurring injury ceases to be speculative when actual repeated incidents are documented” (quoting Nicacio v. U.S. INS, 797 F.2d 700, 702 (9th Cir. 1985))); cf. Penobscot Nation v. Mills, 861 F.3d 324, 336-37 (1st Cir. 2017) (denying standing at summary judgment where there was no evidence of prior enforcement of the policy in question against the plaintiffs). Here, all Plaintiffs have been subjected to electronics searches at the border and four Plaintiffs have been subjected to multiple device searches. D. 7 ¶¶ 2, 62-155. Plaintiffs’ theory of standing, therefore, is sufficiently concrete to plausibly allege injury-in-fact.
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Plaintiffs’ allegations of future harm are no less concrete because they omit specific plans or dates of future travel. Defendants argue that without such details, Plaintiffs have merely expressed “some day” intentions to travel, which are not enough to establish actual or imminent injury. D. 15 at 19 (quoting Lujan, 504 U.S. at 564). In Lujan, the two individuals in question stated in affidavits that they intended to return to the habitats in question sometime “in the future,” which was insufficient to establish “at the summary judgment stage, a factual showing of perceptible harm.” Lujan, 504 U.S. at 563-64, 566. As a result, with plaintiffs “alleg[ing] only an injury at some indefinite future time,” the Court held that the “imminence” requirement for future injury had “been stretched beyond the breaking point.” Id. at 564 n.2. As Justice Kennedy explained in his concurring opinion, the requirement for travel specifics was warranted in that case because it was “not a case where it [wa]s reasonable to assume that the affiants will be using the sites on a regular basis . . . nor d[id] the affiants claim to have visited the sites since the projects commenced.” Id. at 579 (Kennedy, J., concurring) (citation omitted). Plaintiffs argue that their allegations sufficiently demonstrate a “realistic risk of future exposure to [the] challenged policy,” Berner, 129 F.3d at 24, through their allegations that they regularly travel outside the U.S. for work, visiting friends and family, vacation and tourism, D. 19 at 19-20; e.g., D. 7 ¶¶ 2, 62, 73, 77, 81, 86, 105, 114, 126, 143, and will continue to do so in the future, D. 7 ¶ 156.
This case is distinct from Lujan on several bases. First, this case is only at the motion to dismiss phase, unlike the summary judgment stage in Lujan, 504 U.S. at 561, 566. Second, exposure to CBP and ICE policy does not require travel to a specific destination, but rather only requires some international travel and return to the U.S.; it is reasonable to infer from the allegations in the complaint that these Plaintiffs will engage in international travel again in the future, cf. id. at 579 (Kennedy, J., concurring), particularly as Plaintiffs allege prior travel abroad
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and professional backgrounds that might warrant future travel. See Lyons, 461 U.S. at 102 (looking to plaintiffs’ prior actions to determine likelihood of future injury); Lujan, 504 U.S. at 592 (Blackmun, J., dissenting). Given this case’s posture, the breadth of activity that would compel exposure to the policies at issue and Plaintiffs’ allegations of prior travel and professional activity, Plaintiffs’ allegations in this context are sufficient to allege actual or imminent injury.
Finally, Defendants argue that Plaintiffs have failed to establish standing because their risk of injury is no greater than that of the general public, rendering their alleged harm a generalized grievance inappropriate for adjudication. D. 15 at 19. “[A] plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Lujan, 504 U.S. at 573-74. Defendants focus solely upon whether Plaintiffs’ “future risk of a device search” is greater than that of the general public, D. 15 at 19, but simply that a harm may be “widely shared” does not eliminate a plaintiff’s standing to sue. Massachusetts, 549 U.S. at 522. Rather, plaintiffs lack standing under the generalized grievance rule when the alleged injury is “not only widely shared, but is also of an abstract and indefinite nature.” FEC v. Akins, 524 U.S. 11, 23 (1998). Plaintiffs may plausibly allege standing regardless of “how many persons have been injured by the challenged action” if they plausibly allege that their individual rights have been or will be infringed in some “concrete and personal way.” Massachusetts, 549 U.S. at 517, (quoting Lujan, 504 U.S. at 581 (Kennedy, J., concurring)); see Akins, 524 U.S. at 24; Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449-50 (1989) (explaining that “[t]he fact that other citizens or groups of citizens might make the same complaint . . . does not lessen appellants’
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asserted injury”). As the Court has explained, Plaintiffs have plausibly alleged a concrete, personal injury in the form of violation of their individual rights.
Plaintiffs also argue that their risk of search is higher than that of the general public because they have been searched before. D. 19 at 20-21. This argument is supported by the multiple searches of four Plaintiffs, despite the aforementioned low probability of subjection of the general public to a border search. Plaintiffs argue that Defendants’ policies “alert officers to the past searches and confiscations, which may increase the likelihood of repeated searches.” D. 19 at 20 (citing Tabbaa v. Chertoff, No. 05-cv-582S, 2005 U.S. Dist. LEXIS 38189, 2005 WL 3531828, at *9 (W.D.N.Y. Dec. 22, 2005), aff’d, 509 F.3d 89 (2d Cir. 2007)), a contention that may be borne out by discovery.
For all of these reasons, the Court DENIES Defendants’ motion to dismiss on the basis that Plaintiffs lack standing, as Plaintiffs have plausibly alleged that they face a substantial risk of future harm from Defendants’ ongoing enforcement of their border electronics search policies.
2. Standing to Seek Expungement Plaintiffs also seek expungement of all data or information “gathered from, or copies made of, the contents of Plaintiffs’ electronic devices, and all of Plaintiffs’ social media information and device passwords.” D. 7 at 42. Retention of data illegally obtained by law enforcement may constitute continued harm sufficient to establish standing to seek expungement. See Tabbaa, 509 F.3d at 96 n.2 (stating that defendants there “properly do not contest that plaintiffs possess Article III standing based upon their demand for expungement” of data collected during border searches); Hedgepath v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (holding plaintiff had standing to seek expungement of arrest record). Defendants challenge Plaintiffs’ standing to seek expungement here. D. 15 at 20-21.
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Defendants argue that, as a factual matter, standing to seek expungement has only been
alleged as to one Plaintiff, Wright, whose information was allegedly extracted and not destroyed
by CBP, as demonstrated through documents he obtained through a FOIA request. D. 15 at 20.
Although Defendants correctly point out that “[n]either conclusory assertions nor unfounded
speculation can supply the necessary heft” to establish standing, D. 15 at 20 (quoting Hochendoner,
823 F.3d at 731), Plaintiffs need not produce FOIA documentation to allege plausibly that
information contained on their devices has been retained by CBP or ICE, especially given—as explained above—that this is the motion to dismiss stage of litigation.5 Three other Plaintiffs—
the Alasaads and Allababidi—also allege searches involving retention of their electronic devices
for at least two weeks. D. 7 ¶¶ 70-72, 79-80. Six of the remaining seven Plaintiffs allege that
during their “basic” or manual device searches, their devices were searched outside of their presence for a period of time between ten minutes and four hours.6 D. 7 ¶¶ 84, 90, 96, 102, 107,
112, 117, 135, 140, 146. Given that both ICE and CBP policies in place at the time authorized
conducting advanced searches of electronic devices without any individualized suspicion, D. 7 ¶
58, it is plausible to infer from these facts that advanced searches may have occurred during this
time, see D. 7 ¶ 84 (alleging that agents stated they used “algorithms” to search Bikkannavar’s
phone outside of his presence). These policies, including the 2018 CBP Policy, also sanction
5 Defendants’ argument that the amended complaint only alleges that “CBP retained the information it extracted from Mr. Wright’s devices,” D. 7 ¶ 155, omitting any allegations of the same for other Plaintiffs, ignores other allegations in the pleading. D. 32 at 4 n.2. Plaintiffs explicitly allege that “[o]n information and belief, Plaintiffs are suffering the ongoing harm of CBP and ICE retaining (a) content copied from their devices or records reflecting content observed during searches of their devices, (b) content copied from their cloud-based accounts accessed through their devices or records reflecting” such content, “(c) their social media identifiers, and/or (d) their device passwords.” D. 7 ¶ 157. Plaintiffs have not, therefore, failed to allege that information was retained by Defendants. 6 Maye alleges that an officer “seized” her unlocked phone “for approximately two hours,” but the complaint does not allege that such seizure removed her phone from her presence. See D. 7 ¶ 124.
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creating copies of data contained on the devices during—or to be used for—advanced searches, ICE Pol. ¶ 8.1.4; D. 18-1 ¶¶ 5.1.4, 5.4.1, or to retain the assistance of other agencies and third parties, ICE Pol. ¶ 8.4.4; D. 18-1 ¶¶ 5.4.2.1-2. It is plausible, therefore, to infer that data or information from the devices may have been copied or otherwise documented during these searches.
Defendants also argue that Plaintiffs do not have standing to seek expungement because expungement would not redress Plaintiffs’ alleged injury. D. 15 at 20-21. Redressability, the third standing requirement, see Spokeo, 136 S. Ct. at 1547, requires that Plaintiffs demonstrate “a likelihood that prevailing in the action will afford some redress for the injury.” City of Bangor v. Citizens Commc’ns Co., 532 F.3d 70, 92 (1st Cir. 2008) (quoting Me. People’s All. V. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006)). Plaintiffs’ burden to demonstrate redressability, as with injury, is “relatively modest” at the motion to dismiss stage. Bennett v. Spear, 520 U.S. 154, 171 (1997). Plaintiffs’ injury “is redressable if the relief sought can compensate the plaintiff for his losses or ‘eliminate any effects’ caused by a defendant’s challenged conduct.” Janfeshan v. U.S. Customs & Border Prot., No. 16-cv-6915, 2017 U.S. Dist. LEXIS 151058, 2017 WL 3972461, at *6 (E.D.N.Y. Aug. 21, 2017) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106 (1998)).
Plaintiffs have plausibly demonstrated that expungement of their data would afford some redress for their alleged injury here. Plaintiffs argue that retention of their information “compounds the violations of [their] Fourth Amendment rights, because Defendants remain free to use and exploit it or share it with other agencies that may do the same.” D. 19 at 24; see Tabbaa, 509 F.3d at 96 n.2; Hedgepath, 386 F.3d at 1152. Defendants argue that expungement “would not likely result from a favorable resolution of [Plaintiffs’] claims” because “[t]he government’s use
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of ‘evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.’” D. 15 at 20 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998)). First, however, Defendants’ argument does not go to redressability, but rather to the merits of the constitutional claim and remedy sought. Defendants do not argue that expungement would insufficiently redress Plaintiffs’ alleged injury—continued violation of the Fourth Amendment through retention of Plaintiffs’ data—but rather suggest that retention of Plaintiffs’ data is not itself a violation of the Fourth Amendment. D. 15 at 20-21. Indeed, to the extent Plaintiffs’ information was copied or obtained, subsequently retained and not destroyed by CBP or ICE, the destruction of these copies or data could redress such injury. See Janfeshan, 2017 WL 3972461, at *7.
Second, where allegations of redressability are stated plausibly, foreclosure of this remedy to Plaintiffs at this early juncture is not warranted. Expungement is a remedy that falls within the Court’s equitable discretion. See United States v. Coloian, 480 F.3d 47, 50 (1st Cir. 2007); Reyes v. Supervisor of DEA, 834 F.2d 1093, 1098 (1st Cir. 1984); Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975) (stating that “federal courts are empowered to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute”). The availability of the remedy, therefore, depends upon the scope of the Defendants’ ultimate liability here. See Janfeshan, 2017 WL 3972461, at *13 (declining to dismiss the plaintiff’s “‘claims’ for CBP’s expungement of certain records” before determining the scope of the defendants’ liability); Hassan v. City of N.Y., 804 F.3d 277, 293-94 (3d Cir. 2015) (explaining that “the potential avenues for redress depend on how a particular plaintiff’s injury shows itself” and may fall within a “range of available remedies”).
The Court thus DENIES Defendants’ motion to dismiss on the basis that Plaintiffs lack standing to seek expungement.
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B. Plaintiffs’ Fourth Amendment Claims The Fourth Amendment establishes that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The Fourth Amendment ensures that “the usual inferences which reasonable men draw from evidence . . . . be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). “The amendment grew out of American colonial opposition to British search and seizure practices, most notably the use of writs of assistance, which gave customs officials broad latitude to search houses, shops, cellars, warehouses, and other places for smuggled goods.” United States v. Wurie, 728 F.3d 1, 3 (2013), aff’d sub. nom., Riley v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014). “[T]he ultimate touchstone of the Fourth Amendment is reasonableness,” Riley, 134 S. Ct. at 2482 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)), and “reasonableness generally requires the obtaining of a judicial warrant,” id. (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). “[A] warrantless search is per se unreasonable under the Fourth Amendment, unless one of ‘a few specifically established and well-delineated exceptions’ applies.” Wurie, 728 F.3d at 3 (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). The border search exception, “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country,” is one such exception. United States v. Ramsey, 431 U.S. 606, 620 (1977). Although, as an exception to the warrant requirement, border searches “have been considered to be ‘reasonable’ by the single fact that the person or item in question had entered into
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our country from outside,” id. at 619, the exception is not limitless. Border searches must still be “reasonable,” and the Court must still—as with searches conducted in the interior—balance “the sovereign’s interests” with the privacy interests of the individual. United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985). Notably, however, the balance of interests is different at the border: the state has “a paramount interest in protecting[] its territorial integrity,” and an individual’s “expectation of privacy is less at the border than it is in the interior.” United States v. Flores-Montano, 541 U.S. 149, 153-54 (2004). That is, CBP and ICE argue that the ‘border is different’ from any other search context and there is no Fourth Amendment impediment to their policies.
By contrast, Plaintiffs argue that ‘digital is different.’ See D. 25 at 8.7 They contend that the border searches at issue here run afoul of the Fourth Amendment due to the unique characteristics of electronic devices. D. 19 at 25-37. As to the border searches themselves, Plaintiffs argue that there is no meaningful distinction between basic and advanced (or manual and forensic) searches articulated in the CBP and ICE policies. D. 19 at 35. In light of the “the great volume and detail of personal information that electronic devices contain,” even manual searches, they allege, are “extraordinarily invasive.” D. 7 ¶ 41. See D. 7 ¶¶ 27-36. Plaintiffs allege (1) that the warrantless searches of travelers’ electronic devices conducted at the border or international ports of entry, pursuant to the CBP and ICE policies, violate the Fourth Amendment, and (2) that the confiscation of devices absent probable cause violates the Fourth Amendment. D. 7 ¶¶ 169, 173. The Court begins by focusing on Plaintiffs’ first Fourth Amendment claim, which
7 An amicus brief filed by the Brennan Center for Justice, the Center for Democracy & Technology, the R Street Institute and TechFreedom details the extent to which digital devices differ from containers at issue in prior border search cases given that they “contain great quantities of extremely sensitive information.” D. 25 at 7.
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applies to all Plaintiffs (Count I), and then addressing Plaintiffs’ confiscation claim which applies to certain of the Plaintiffs (Count III).
Six years ago, this Court was unpersuaded by the argument that, under Fourth Amendment jurisprudence, unique characteristics of cell phones and other electronic devices justified requiring a heightened level of suspicion for searches conducted at the border. House v. Napolitano, No. 11-10852-DJC, 2012 U.S. Dist. LEXIS 42297, 2012 WL 1038816, at *8 (D. Mass. Mar. 28, 2012). In House, similar to Plaintiffs here, House challenged the constitutionality of officers’ search of his laptop and other electronic devices at the border under the Fourth Amendment, arguing that the search was “highly intrusive given the personal nature and quality of information stored on these devices.” Id. at *6. The Court explained that in the Fourth Amendment context, “[i]t is the level of intrusiveness of the search that determines whether the search is routine, not the nature of the device or container to be searched.” Id. at *8 (citing United States v. Giberson, 527 F.3d 882, 888 (9th Cir. 2008)). The Court rejected House’s argument, explaining that a laptop and other electronic devices are “akin to the search of a suitcase and other closed containers,” which “require no particularized suspicion,” id. at *7, but declined to dismiss House’s Fourth Amendment claim because the prolonged detention of his electronic devices for forty-nine days was not “reasonably related in scope to the circumstances which justified it initially.” Id. at *9 (quoting United States v. Cotterman, 637 F.3d 1068, 1082 (9th Cir. 2011), rev’d en banc, 709 F.3d 952 (9th Cir. 2013)).
Two years after this Court’s ruling in House, as Plaintiffs point out, D. 19 at 25-31, the Supreme Court issued Riley, in which the Court held that the search-incident-to-arrest exception does not extend to cell phones, but rather the Fourth Amendment requires police to obtain a warrant supported by probable cause to search a phone seized during an arrest. Riley, 134 S. Ct. at 2494-
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95. Moreover, the Supreme Court in Riley affirmed the First Circuit’s ruling in Wurie, 728 F.3d at 13, which also came after this Court’s ruling in House.
1. Riley, Wurie and the Search Incident to Arrest Exception In Riley, the Supreme Court addressed the applicability of the search incident to arrest exception to cell phones and established a categorical rule requiring that officers obtain search warrants prior to searching cell phones. Riley, 134 S. Ct. at 2485. Justice Roberts, writing for a unanimous Court,8 explained that “[a]bsent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.’” Riley, 134 S. Ct. at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The Court explained that the balancing of interests did not support extending the exception “to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. The Court analyzed the rationales behind the search incident to arrest exception to determine whether application of the doctrine to “this particular category of effects would ‘untether the rule from the justifications underlying’” the exception. Id. at 2485 (quoting Gant, 556 U.S. at 343). Although the search incident to arrest exception has been described as “always recognized under English and American law,” Weeks v. United States, 232 U.S. 383, 392 (1914), it was not until 1969, in Chimel v. California, that the Supreme Court articulated the rationales behind the exception: removing weapons to ensure officer safety and preventing the destruction of evidence. Chimel, 395 U.S. 752, 762-63 (1969). Neither justification, the Riley Court explained, supported
8 Justice Alito concurred in part and concurred in the judgment. Riley, 134 S. Ct. at 2495. 31

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the application of the exception to cell phones. Riley, 134 S. Ct. at 2485-88. The Court rejected the government’s arguments that cell phones are “vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption” because “broader concerns about the loss of evidence are distinct” from the rationale supporting the exception, the Court “ha[d] also been given little reason to believe that either problem is prevalent,” and it was unclear that the ability to conduct a cell phone search without a warrant would “make much of a difference.” Id. at 2486-87.
As to the individual’s privacy interests implicated, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 2488-89. The Supreme Court expounded at length upon the extent to which “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at 2489. Quantitatively, whereas “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so,” cell phones have an “immense storage capacity,” allowing people to carry an amount of data no longer limited by physical practicability. Id. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions” dating back to the purchase of the phone, or earlier; “the same cannot be said of a photograph or two of loved ones tucked into a wallet.” Id. Qualitatively, a person’s internet browsing history, historic location information, and mobile application software (or “apps”) “can form a revealing montage of the user’s life.” Id. at 2490. Indeed, the Court stated that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original). Moreover, the ease with which a cell phone may be used to access
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remote files illustrates that a cell phone search “might extend well beyond papers and effects in the physical proximity of an arrestee,” providing “yet another reason that the privacy interests here dwarf those” in prior search incident to arrest cases. Id.
The Riley court rejected the government’s proposed alternative standards, including that “from the vehicle context, allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest.” Id. at 2492. The Supreme Court explained that the exception for warrantless searches of a vehicle’s passenger compartment carved out in Gant, 556 U.S. at 343, was inapplicable to cell phone searches for several reasons. Riley, 134 S. Ct. at 2492. First, the circumstances of the vehicle search involved further “reduced expectation[s] of privacy” and “heightened law enforcement needs” absent with cell phone searches. Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)); see Gant, 556 U.S. at 345. Second, crucially, the “Gant standard would prove no practical limit at all when it comes to cell phone searches,” given the physical and temporal limitations present in a Gant scenario that are absent in a Riley scenario. Riley, 134 S. Ct. at 2492. The Court noted that “[i]t would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a cell phone.” Id. Given the Court’s “general preference to provide clear guidance to law enforcement through categorical rules,” and avoid “a difficult line-drawing expedition” for officers and courts alike, the Court rejected the government’s “fallback options” in favor of a warrant requirement that would apply to all cell phone searches conducted incident to arrest. Id. at 2491-93; see id. at 2497 (Alito, J., concurring) (explaining that although the Court’s holding might “lead[] to anomalies,” he did “not see a workable alternative” given that “[l]aw
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enforcement officers need clear rules . . . and it would take many cases and many years for the courts to develop more nuanced rules”).
It is also worth noting that one of the two cases on appeal in Riley was Wurie, a 2013 First Circuit opinion reversing the denial of a motion to suppress and holding that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant. Wurie, 728 F.3d at 13-14. The First Circuit pointed to Seventh Circuit case law acknowledging that “[a]t the touch of a button a cell phone search becomes a house search, and that is not a search of a ‘container’ in any normal sense of that word, though a house contains data.” Id. at 8-9 (quoting United States v. Flores-Lopez, 670 F.3d 803, 806 (7th Cir. 2012)). Ultimately, however, the First Circuit parted ways with the Seventh Circuit and a “majority” of jurisdictions that had upheld warrantless cell phone data searches. Id. at 5, 13. The First Circuit concluded instead that cell phone searches incident to arrest are not justified by the Chimel rationales, and that the nature and scope of the search exceeded the purposes of the warrant exception. Id. at 7-12. The court explained that cell phones store “much more personal information . . . than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked.” Id. at 9.
Adhering to “the Supreme Court’s insistence on bright-line rules in the Fourth Amendment context,” the First Circuit explained that while some searches of cell phones might be less invasive than others, “it is necessary for all warrantless cell phone data searches to be governed by the same rule.” Id. at 12-13. In the court’s view, the government’s desire for warrantless cell phone searches was “a convenient way for the police to obtain information related to a defendant’s crime of arrest,” and the court found no Supreme Court jurisprudence sanctioning “such a ‘general evidencegathering search.’” Id. at 13 (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring)). The
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First Circuit likened the government’s proposed approach to “customs officers in the early colonies [who] could use writs of assistance to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought,” the very ill the Founders sought to eradicate with the Fourth Amendment. Id. at 9. In Riley, the Supreme Court affirmed the First Circuit’s ruling. Riley, 134 S. Ct. at 2495.
2. Riley and the Border Search Exception Defendants argue that Riley does not apply to the border search context. D. 15 at 25-27. Defendants state that “Riley itself noted that its holding was limited to the search incident to arrest context” by acknowledging that “‘other case-specific exceptions may still justify a warrantless search of a particular phone.’” D. 15 at 26 (quoting Riley, 134 S. Ct. at 2492). On that basis, Defendants contend, the argument that Riley “imposes a warrant requirement” in the border search context “is without merit and has been repeatedly rejected.” D. 15 at 25. Additionally, and more substantively, Defendants contend that, unlike the rationales behind the search incident to arrest exception, the border search exception “serves different and broader purposes” that “apply in full force to searches of electronic media.” D. 15 at 26-27. As an initial matter, the Court is not persuaded that Riley’s reasoning is irrelevant here simply because Riley’s holding was limited to the search incident to arrest exception, see Riley, 134 S. Ct. at 2495. Judicially recognized exceptions to the warrant requirement do not exist in isolation; rather, they are all part of Fourth Amendment jurisprudence, justified because, ordinarily, the circumstances surrounding the search and the nature of the search have been deemed “reasonable.” See id. at 2483; Ramsey, 431 U.S. at 617. In fact, the Supreme Court has referenced search incident to arrest doctrine within its border search jurisprudence in the past, characterizing the two exceptions as “similar.” Ramsey, 431 U.S. at 621 (explaining that the border search is “a longstanding, historically recognized exception to the Fourth Amendment’s general principle that
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a warrant be obtained, and in this respect is like the similar ‘search incident to lawful arrest’ exception”). The reasoning in Riley may, therefore, carry some persuasive weight in the border search context. See, e.g., United States v. Kolsuz, 185 F. Supp. 3d 843, 856 (E.D. Va. 2016) (considering scope of privacy interest at border in light of Riley); United States v. Kim, 103 F. Supp. 3d 32, 54-58 (D.D.C. 2015) (same); cf. United States v. Camou, 773 F.3d 932, 942-43 (9th Cir. 2014) (extending Riley to the vehicle exception context); United States v. Lara, 815 F.3d 605, 610-12 (9th Cir. 2016) (applying Riley to probation search context); United States v. Henry, 827 F.3d 16, 28 (1st Cir. 2016) (rejecting defendant’s Riley argument in the “plain view” context not because Riley was categorically irrelevant but because the officers had obtained a warrant prior to the smart phone search).
Additionally, the cases Defendants reference to argue that Plaintiffs’ Fourth Amendment claim has been “repeatedly rejected,” D. 15 at 26 n.8, carry limited weight here. The majority of these cases arose in district courts within the Ninth Circuit, where Cotterman, 709 F.3d at 968, a Ninth Circuit en banc decision predating Riley, still controls. See, e.g., United States v. Mendez, 240 F. Supp. 3d, 1005, 1008 (D. Ariz. 2017); United States v. Ramos, 190 F. Supp. 3d 992, 100203 (S.D. Cal. 2016); United States v. Lopez, No. 13-CR-2092 WQH, 2016 U.S. Dist. LEXIS 176920, 2016 WL 7370030, at *5 (S.D. Cal. Dec. 20, 2016). In Cotterman, the Ninth Circuit held that a forensic device search initiated at the border required reasonable suspicion, explaining that “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.” Cotterman, 709 F.3d at 966. Lower courts in the Ninth Circuit are bound by the Cotterman standard, unable to apply Riley in the border context unless they find the two cases “clearly irreconcilable,” which, as several courts have explained, they are not. See United States
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v. Caballero, 178 F. Supp. 3d 1008, 1018 (S.D. Cal. 2016) (explaining that “[a]lthough Riley could be applied to a cell phone search at the border, this Court is bound by Cotterman”); Lopez, 2016 WL 7370030, at * 5.9
Here, the First Circuit has not yet spoken on what level of suspicion is required to justify a cell phone or other electronic device search at the border. The First Circuit has, however, acknowledged the significant privacy interests implicated in a cell phone search, explaining that the information on these devices is “the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.” Wurie, 728 F.3d at 8. Searches of cell phones are fundamentally different from “the kinds of reasonable, self-limiting searches that do not offend the Fourth Amendment, even when conducted without a warrant.” Id. at 9-10. The court also emphasized the necessity behind a bright-line rule favoring a warrant requirement, explaining that “[a] series of opinions allowing some cell phone data searches but not others, based on the nature and reasonableness of the intrusion, would create exactly the ‘inherently subjective and highly fact specific’ set of rules that the Court has warned against and would be extremely difficult for officers in the field to apply.” Id. at 12-13 (quoting Thornton, 541 U.S. at 623).
While it is correct that neither the Supreme Court nor the First Circuit have yet held that a warrant is required for a particular type of search conducted at the border, the Court considers Plaintiffs’ claim against the current legal backdrop framed by Riley and Wurie and thus turns to
9 Likewise, district courts in the Fourth Circuit are bound by pre-Riley precedent in United States v. Ickes, in which the Fourth Circuit held that a manual digital search of an electronic device is a routine border search, requiring no individualized suspicion, Ickes, 393 F.3d 501, 505-06 (4th Cir. 2005). See Kolsuz, 185 F. Supp. 3d at 854-55; United States v. Saboonchi, 990 F. Supp. 2d 536, 560 (D. Md. 2014).
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the merits to determine whether Plaintiffs have plausibly alleged a Fourth Amendment violation for warrantless border device searches.
The border search exception is widely considered as old as the United States itself. See Ramsey, 431 U.S. at 616-17. “The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29 . . . . grant[ing] customs officials ‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.’” Id. at 616. The Supreme Court reiterated in 1886 and 1925 that border searches are “reasonable” and, therefore, not prohibited by the Fourth Amendment. See Boyd v. United States, 116 U.S. 616, 623 (1886); Carroll v. United States, 267 U.S. 132, 147 (1925).
As with all Fourth Amendment exceptions, the border search exception is “subject to substantive limitations imposed by the Constitution.” Ramsey, 431 U.S. at 620. The Court determines “the permissibility of a particular law enforcement practice . . . by ‘balancing its intrusion on the individual’s Fourth Amendment interest against its promotion of legitimate governmental interests.’” Montoya de Hernandez, 473 U.S. at 537 (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983)). “[T]he Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.” Id. at 538. Individuals have a reduced expectation of privacy at the international border, while the government’s “interest in preventing the entry of unwanted persons and effects is at its zenith” there. Flores-Montano, 541 U.S. at 154, 152.
The border search slate, however, is not unlike the one on which the Supreme Court wrote in Riley. Like the border search exception’s historical foundation, the search incident to arrest
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exception, as the Court detailed in Riley, was “always recognized under English and American law,” Riley, 134 S. Ct. at 2482 (quoting Weeks, 232 U.S. at 392). Moreover, with searches incident to arrest, the balance also tilts favorably toward the government. See id. at 2488 (explaining that “[t]he search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police custody”). The Court nevertheless explained that an arrestee’s “diminished privacy interests do[] not mean that the Fourth Amendment falls out of the picture entirely.” Id. Rather, the unique attributes of cell phones so increased the privacy interests of individuals that the balancing of interests that typically support the search incident to arrest exception no longer applied. See id. at 2484-85, 2488; Wurie, 728 F.3d at 9.
The border search serves the nation’s “paramount interest in protecting[] its territorial integrity.” Flores-Montano, 541 U.S. at 153. The rationales supporting the border search exception are the sovereign’s interest in protecting the “integrity of the border,” by “[r]egulat[ing] the collection of duties” and “prevent[ing] the introduction of contraband into this country.” Montoya de Hernandez, 473 U.S. at 538, 537; see Carroll, 267 U.S. at 154 (explaining that “[t]ravellers may be so stopped . . . because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in”). The Supreme Court has characterized customs officials’ role at the border as greater than that of “investigative law enforcement,” explaining that customs offers “are also charged . . . with protecting this Nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives.” Montoya de Hernandez, 473 U.S. at 544.
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Plaintiffs argue that “warrantless searches of electronic devices are not sufficiently tethered to the narrow purposes justifying the border search exception: immigration and customs enforcement.” D. 19 at 28-29. If the border exception seeks to enable officers to prevent illicit “contraband” from entering the country, see Montoya de Hernandez, 473 U.S. at 537, a search of digital data may not be necessary to achieve that aim. See Kolsuz, 185 F. Supp. 3d at 858 (explaining that digital information “is merely indirect evidence of things an individual seeks to export illegally—not the things themselves—and therefore the government’s interest in obtaining this information is less significant than the government’s interest in directly discovering the items to be exported illegally”); United States v. Molina-Isidoro, 267 F. Supp. 3d 900, 909 n.10 (W.D. Tex. 2016). Defendants argue that devices “can contain contraband (such as child pornography), information regarding the inadmissibility of prohibited goods or persons, or material (such as classified information, malware, or export-controlled material) that, if illicitly transferred beyond our borders, could pose a direct threat to our national security.” D. 15 at 27. The Court agrees with Plaintiffs that “information regarding the inadmissibility of prohibited goods or persons,” id., is distinct from contraband. D. 19 at 30 n.20; see Boyd, 116 U.S. at 623 (explaining that search and seizure of “goods liable to duties and concealed to avoid the payment thereof[] are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him”).
Digital contraband like child pornography, however, falls within the ambit of the border search exception’s rationales. Plaintiffs argue that unlike physical contraband, digital contraband may also cross borders digitally, through the internet, and need not physically cross the border to enter the country. D. 19 at 30. Additionally, they argue that to the extent such digital contraband is truly transported across the border through these devices, the government cannot demonstrate
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that such incidents are “prevalent” enough to justify a categorical rule permitting warrantless device searches at the border. Id. (quoting Riley, 134 S. Ct. at 2486). The U.S. Sentencing Commission explained in 2012 that “[t]he vast majority of child pornography offenders today use the Internet or Internet-related technologies to access and distribute child pornography.” U.S. Sent’g Comm’n, 2012 Report to the Congress: Federal Child Pornography Offenses 41-42 (2012)10; see id. at 48-56 (describing peer-to-peer file sharing and other platforms enabling file sharing on the internet). With the limited record before the Court, the prevalence of physical transfers of illicit digital contraband across the U.S. borders (as opposed to through the internet) is unclear.
Additionally, although the Court agrees with Defendants that digital contraband is not “untethered” from the rationales supporting the border search exception, it is unclear at this juncture the extent to which a warrant requirement would impede customs officers’ ability to ferret out such contraband.11 “[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Wurie, 728 F.3d at 11 (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)). Indeed, as Justice Roberts pointed out in Riley, “[r]ecent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient.” Riley, 134 S. Ct. at 2493. Although a warrant might “have an impact on the ability of law enforcement to combat crime,” id., it is unclear—
10 Available online at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimonyand-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf. 11 One district court explained, prior to Riley, in holding that forensic searches require reasonable suspicion, such a ruling is not “likely meaningfully to change anything that actually happens at the border,” because “[c]ustoms officials do not have the time or resources—or, most likely, the inclination—to perform random or suspicionless forensic searches.” Saboonchi, 990 F. Supp. 2d at 570. The court was unaware of “any case where a forensic search was performed in the absence of reasonable suspicion.” Id. (citing cases).
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based on the record before the Court at this time—the extent to which such impediment justifies applying the border search exception to electronic devices. This is particularly true where the government’s interests—even if they are not “untethered” to the exception’s rationales—must be “[w]eighed against the significant privacy implications inherent in cell phone data searches.” Wurie, 728 F.3d at 11.
On the other side of the scale, where a traveler’s privacy interests are ordinarily reduced, Riley indicates that electronic devices implicate privacy interests in a fundamentally different manner than searches of typical containers or even searches of a person. Riley, 134 S. Ct. at 248889, 2494-95; see Wurie, 728 F.3d at 8. The Supreme Court has held that detention of a traveler at the border “beyond the scope of a routine customs search and inspection” may be justified when supported by reasonable suspicion that the traveler is smuggling contraband in their “alimentary canal,” Montoya de Hernandez, 473 U.S. at 541, and that no level of suspicion is required for a border search in which officers “remove, disassemble, and reassemble a vehicle’s fuel tank,” Flores-Montano, 541 U.S. at 155. The First Circuit, likewise, has held that reasonable suspicion— not probable cause—is required to justify certain “nonroutine” border examinations like strip and body cavity searches. United States v. Braks, 842 F.2d 509, 512-14 (1st Cir. 1988). The First Circuit and other circuits have adopted the “routine” and “nonroutine” border search distinction first articulated in Montoya de Hernandez, 473 U.S. at 541 n.4, often distinguishing between the two by the intrusiveness of the search. See United States v. Molina-Gómez, 781 F.3d 13, 19 (1st Cir. 2015); United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); United States v. RamosSaenz, 36 F.3d 59, 61 (9th Cir. 1994).12
12 The Supreme Court’s dismissal of the “[c]omplex balancing tests” to determine the “degree of intrusiveness” as applied to border searches of vehicles, Flores-Montano, 541 U.S. at 152, does not eliminate the intrusiveness inquiry here. There, the Court explained that the “dignity and
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Riley and Wurie indicate that electronic device searches are, categorically, more intrusive than searches of one’s person or effects. See Riley, 134 S. Ct. 2489 (explaining that “[b]efore cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy”); Wurie, 728 F.3d at 8-9; United States v. Whiteside, No. 13-cr-576, 2015 U.S. Dist. LEXIS 84369, 2015 WL 3953477, at *4-5 (S.D.N.Y. June 29, 2015) (suppressing contents of digital camera searched incident to arrest based upon Riley). The ability to review travelers’ cell phones allows officers to view “nearly every aspect of their lives— from the mundane to the intimate.” Riley, 134 S. Ct. at 2490. Indeed, certain facts alleged here— including Nadia Alasaad’s and Merchant’s objections due to their photos on their phones of themselves without headscarves, D. 7 ¶¶ 67, 129—demonstrate the level of intrusiveness a manual device search can entail. The Constitutional Accountability Center, in its amicus brief, likens digital device searches to searches of personal papers, explaining that “personal papers increasingly take the form of digital files” kept on cell phones, laptops, and other electronic devices. D. 23 at 8. They argue personal papers require greater protection under the Fourth Amendment because these searches “‘go[] to the very core of the fourth amendment right of privacy,’” given the Fourth Amendment’s history and the “inherently ‘personal, private nature of such papers.’” D. 23 at 18 (quoting James A. McKenna, The Constitutional Protection of Private Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 68 (1977)); see Craig M. Bradley, Constitutional Protection for Private Papers, 16 Harv. C.R.-C.L. L. Rev. 461, 483 (1981) (describing the “psychological intrusion” implicated by searches of personal papers “because the
privacy interests of the person being searched [] simply do not carry over to vehicles.” Id.; see New York v. Class, 475 U.S. 106, 112-13 (1986) (explaining that vehicles implicate a diminished expectation of privacy). Under current Supreme Court jurisprudence, the opposite holds true for cell phones. See Riley, 134 S. Ct. at 2489-90.
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searcher is invading not only the subject’s house but his or her thoughts as well”); Ramsey, 431 U.S. at 623-24 (holding that searches for contraband in international mail did not violate the Fourth Amendment, repeatedly stressing that statutes forbade reading correspondence in the envelopes). Moreover, the potential intrusion into individuals’ privacy is of “particular concern” in the border search context because the permissible scope of customs officers’ investigative search is so broad and need not “be restrained by any limitations of exigency or relevance to a specific crime.” Camou, 773 F.3d at 943 (explaining that the broad “allowable scope” of a search pursuant to the vehicle exception supported extending Riley’s holding to cell phone searches in that context).
Defendants argue that even if device searches necessitate heightened suspicion, no higher standard could apply here than the reasonable suspicion standard.13 D. 15 at 25; see MolinaGómez, 781 F.3d at 19 (explaining that non-routine searches “require reasonable suspicion”). Plaintiffs argue, however, that the Supreme Court has never suggested that reasonable suspicion “is a ceiling for every border search.” D. 19 at 33. Defendants emphasized at oral argument that First Circuit precedent has never required that strip searches in the border context meet a standard higher than reasonable suspicion, see Braks, 842 F.2d at 512-14, so holding digital searches to a higher standard would be incongruous. See D. 32 at 6. Notably, however, reasonable suspicion generally suffices to justify strip searches in the search incident to arrest context, too. See United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997).14
13 Reasonable suspicion is generally defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981); Terry v. Ohio, 392 U.S. 1, 21, 30 (1968) (explaining that the standard is met when officers can point to “specific and articulable facts” and rational inferences that can be drawn therefrom indicating that criminal activity “may be afoot”). It is typically viewed within the totality of the circumstances. See Cortez, 449 U.S. at 417. 14 Notably, in Swain, the First Circuit again connected the search incident to arrest exception with the border search exception, explaining that the reasonable suspicion standard was appropriate for
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Nevertheless, the Supreme Court rejected the reasonable suspicion standard when it came to cell phones because it “would prove no practical limit at all when it comes to cell phone searches.” Riley, 134 S. Ct. at 2492. Digital device searches at the border, perhaps even when supported by reasonable suspicion, raise the same concerns.
In sum, the Court is not persuaded that Plaintiffs have failed to state a plausible Fourth Amendment claim here. Although Defendants may be correct that the border is different, see D. 15 at 23-27, the Supreme Court and First Circuit have acknowledged that digital searches are different too since they “implicate privacy concerns far beyond those implicated” in a typical container search. Riley, 134 S. Ct. at 2488-89; see Wurie, 728 F.3d at 11. In the absence of controlling precedent to the contrary, this Court cannot rule that this Fourth Amendment principle would not extend in some capacity to the border. See Janfeshan, 2017 WL 3972461, at *12 (denying motion to dismiss Fourth Amendment claim regarding forensic cell phone search at border); Kim, 103 F. Supp. 3d at 59 (granting motion to suppress where forensic laptop search “was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy . . . that it was unreasonable” under the Fourth Amendment and Riley); United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (granting motion to suppress documents obtained from warrantless search of phone of outbound passenger under Riley). The Court concludes, therefore, that Plaintiffs have plausibly alleged a Fourth Amendment claim here.
Plaintiffs also argue that even if Riley does not apply here, “border search precedent provides a parallel justification for requiring a warrant based on probable cause for border searches of electronic devices.” D. 19 at 31. Given that the Court has concluded that Riley has some weight
strip and visual body cavity searches in the arrestee context because it was appropriate in other contexts, including “non-routine border searches.” Swain, 117 F.3d at 7.
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in the border search context and that, on that basis, Plaintiffs have stated a plausible Fourth Amendment claim, the Court need not reach this further argument.
Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claim (Count I) is, therefore, DENIED.
3. Plaintiffs’ Confiscation Claim Defendants also seek dismissal of Plaintiffs’ claim that Defendants “violate the Fourth Amendment by confiscating travelers’ electronic devices, for the purpose of effectuating searches of those devices after travelers leave the border, absent probable cause” as they are “unreasonable at their inception, and in scope and duration,” D. 7 ¶ 173. D. 14 at 2; D. 15 at 30-34. Defendants contend that “[t]he same arguments made with respect to the first cause of action . . . apply equally here,” arguing that “where the government has authority to search an item at the border, it has authority to detain that item as necessary to accomplish the search.” D. 15 at 30-31. To the extent this standard is correct—which the Court does not grant—given this Court’s ruling on Plaintiffs’ Fourth Amendment claim regarding border device searches, and for many of the reasons detailed above, the Court likewise holds that Plaintiffs have plausibly alleged a Fourth Amendment claim based upon Defendants’ prolonged detention—or confiscation—of these devices. The Court notes, moreover, that Plaintiffs’ claim pertaining to confiscations is not coterminous with Plaintiffs’ border search claim. Unlike border searches, prolonged detentions of devices—including after travelers have left the border—resemble seizures, and must, therefore, be reasonable not only at their inception but also for their duration. United States v. Place, 462 U.S. 696, 708-10 (1983) (holding that the ninety-minute detention of luggage was a “seizure” requiring probable cause); see United States v. Jacobsen, 466 U.S. 109, 124-25 (1984). That is, a device search that is justified at its inception may nevertheless become unreasonable, giving rise to a Fourth Amendment claim. See House, 2012 WL 1038816, at *10 (holding that a forty-nine day
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detention of a locked laptop, flash drive and camera raised a plausible Fourth Amendment claim, despite dismissing claim regarding the search itself); Cotterman, 709 F.3d at 966-67.
Plaintiffs argue that confiscations pursuant to CBP and ICE policies are “excessive” in scope and duration. D. 7 ¶¶ 56(b)-(c). As this Court has previously explained, “the inquiry into the reasonableness of the duration of a seizure is . . . an appropriate consideration under the Fourth Amendment analysis” even at the border. House, 2012 WL 1038816, at *9 (citing Place, 462 U.S. at 709-10); see United States v. Mitchell, 565 F.3d 1347, 1351-52 (11th Cir. 2009) (holding that a twenty-one day delay in securing a warrant for a laptop search was unreasonable). Defendants argue that Plaintiffs’ claim is baseless given that the official policies limit detentions to “a brief, reasonable period of time.” D. 15 at 34 (quoting D. 18-1 ¶ 5.3.1). The lengths of the detentions alleged here, however—including ten months for Allababidi and fifty-six days for Wright— suggest that the Fourth Amendment may require clearer guidance than that. See Riley, 134 S. Ct. at 2492-93 (reiterating the necessity of “clear guidance” in the Fourth Amendment context).
The Court thus DENIES Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claim regarding confiscation of electronic devices pursuant to CBP and ICE policies (Count III).
C. Plaintiffs’ First Amendment Claim Finally, Defendants seek dismissal of Plaintiffs’ claim, Count II, that they “violate the First Amendment by searching electronic devices that contain expressive content and associational information, absent a warrant supported by probable cause,” D. 7 ¶ 171. D. 14 at 2. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” U.S. Const. amend. I. These rights “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960). As the Supreme Court has explained, “associational rights . . . can be abridged even by government
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actions that do not directly restrict individuals’ ability to associate freely.” Lyng v. Int’l Union, UAW, 485 U.S. 360, 367 n.5 (1988); see AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (explaining that compulsory “disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation”); Baird v. State Bar of Ariz., 401 U.S. 1, 6-7 (1971) (explaining that “[w]hen a State seeks to inquire about an individual’s beliefs and associations a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest”).
Plaintiffs argue that warrantless digital device searches substantially burden travelers’ protected rights of freedom of speech and association and chill the exercise of these rights. D. 7 ¶ 46; D. 19 at 38-41; see generally D. 26 (amicus brief filed by the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press). They explain that the First Amendment rights implicated include the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends,” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984); see NAACP v. Alabama, 357 U.S. 449, 460 (1958), the right to publish speech anonymously, see McIntyre v. Ohio Elections Cmm’n, 514 U.S. 334, 351-43; McMann v. Doe, 460 F. Supp. 2d 259, 266 (D. Mass. 2006), and the right to communicate privately, see Lamont v. Postmaster Gen., 381 U.S. 301, 305 (1965). D. 19 at 38. Freedom of the press is also implicated here, as with Plaintiffs Dupin and Kushkush. D. 19 at 39; D. 26 at 11-13; see Bruno & Stilman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-96 (1st Cir. 1980).
Plaintiffs argue that to justify digital device searches, “[t]he government must have a compelling interest in the information and use narrowly tailored means that do not seek more information than necessary.” D. 19 at 38. The Court is not convinced that such strict scrutiny
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applies here, where CBP and ICE policies are content-neutral, see Asociacion de Educacion Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 15-16 (1st Cir. 2007), and, although potentially burdening speech, do not prevent anyone from speaking, Sindicato Puertotorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 12 (1st Cir. 2012). In general, however, compelled disclosure of First Amendment protected activity “cannot be justified by a mere showing of some legitimate governmental interest.” Buckley v. Valeo, 424 U.S. 1, 64 (1976). Rather, “even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct in requiring disclosure,” there must be a “‘substantial relation between the governmental interest and the information required to be disclosed.” Id. at 64-65; see Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546 (1963). The Court must, therefore, determine whether the complaint adequately alleges an interference with First Amendment rights that is “direct and substantial” or “significant.” House, 2012 WL 1038816, at *12 (quoting Fighting Finest v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996)). Plaintiffs argue that given the technological capacities of electronic devices, the government’s broad search policies “impose[] a substantial burden on First Amendment rights without justification.” D. 19 at 41.
Defendants do not argue that warrantless searches would not be a significant or substantial burden on travelers’ First Amendment rights, nor do they explain their assertion that a heightened standard is not “required by the First Amendment.” D. 32 at 6 n.4. Rather, Defendants argue that “the border search doctrine is not subject to a First Amendment exception,” and that if it were, the consequences would be “staggering.” D. 15 at 29 (quoting Ickes, 393 F.3d at 507, 506). As a general matter, “[t]hat the initial search and seizure occurred at the border does not strip [Plaintiffs] of [their] First Amendment rights.” House, 2012 WL 1038816, at *13; Tabbaa, 509 F.3d at 102
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n.4 (explaining that a routine search may constitute a “significant or substantial burden on plaintiffs’ First Amendment associational rights”).
Moreover, the Court is not persuaded that Ickes, 393 F.3d at 506, upon which Defendants rely, provides appropriate guidance here. This Court need not carve out an exception for all expressive material to find a plausible claim has been stated that digital device searches unjustifiably burden travelers’ First Amendment rights. See House, 2012 WL 1038816, at *13 (holding that the plaintiff stated plausible First Amendment claim for his cell phone search despite failing to state plausible Fourth Amendment claim). The Supreme Court’s distinction between cell phones and other expressive materials in Riley, postdating the Fourth Circuit’s ruling in Ickes, further illustrates this point. See Riley, 135 S. Ct. at 2490. Additionally, in Ickes, the Fourth Circuit was concerned with the “headaches” such a First Amendment “exception” would bring for customs officers. Ickes, 393 F.3d at 506. What Plaintiffs seek as a remedy here, however, is “simple—get a warrant,” Riley, 134 S. Ct. at 2495. D. 19 at 39. Finally, in Ickes, the Fourth Circuit assured that the defendant’s warning that “any person carrying a laptop computer . . . on an international flight would be subject to a search of the files on the computer hard drive” was “far-fetched,” Ickes, 393 F.3d at 506-07. Plaintiffs point to the recent increase in border device searches and the expanding storage and functioning capacities of electronic devices to suggest otherwise. D. 7 ¶¶ 30, 38; D. 19 at 41.
Defendants also argue that this Court’s reasoning in House does not apply here. D. 15 at 29. They contend that “the facts of that case are easily distinguished,” where, unlike here, House alleged he was targeted for investigation because of his specific expressive or associational activities. Id.; see House 2012 WL 1038816, at *10-11. First, certain Plaintiffs allege facts prior to their device searches that are not dissimilar to those in House: while Dupin’s phone was being
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searched, he was questioned “about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked”; Gach was questioned “about his work as an artist” prior to searching his phone; Kushkush was asked about “his reporting activities”; and Merchant was questioned at secondary inspection about her “religious affiliation” and her blog. D. 7 ¶¶ 87, 93, 99, 109, 133. One amicus argues that journalists “are particularly vulnerable to targeted surveillance by means of suspicionless device searches.” D. 26 at 13. As in House, such allegations are “pertinent” to Plaintiffs’ First Amendment claim because they suggest that the officers’ “motivation to search and retain [Plaintiffs’] devices” was to examine expressive or associational material. House, 2012 WL 1038816, at *10.
Second, the reasoning in House was not limited to targeting allegations alone. The Court explained there that the seizure of House’s laptop and other devices gave the government possession of confidential lists of organizational members and supporters, as well as emails and documents detailing House’s organization’s inner workings. House, 2012 WL 1038816, at *12. Such “[c]ompulsory disclosure . . . ‘can seriously infringe on privacy of association and belief guaranteed by the first amendment,’ and can ‘have . . . a profound chilling effect.’” Id. (quoting Buckley, 424 U.S. at 64; Perry v. Schwarzenegger, 591 F.3d 1126, 1135 (9th Cir. 2009)) (internal citations omitted). Here, the CBP and ICE policies broadly permit suspicionless searches in pursuit of “information,” ICE Pol. ¶¶ 5.2, 6.1; D. 18-2 ¶ 5.1.3, which could reasonably include such searches within their ambit. In Ramsey, as Plaintiffs point out, D. 19 at 40, the Supreme Court held that the statutory scheme permitting warrantless search of incoming international mail did not violate the constitution because it applied only when there was reason to believe the envelopes contained physical items and regulations “flatly prohibit[ed], under all circumstances,”
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customs officials from reading correspondence without a warrant. Ramsey, 431 U.S. at 623. The Court did not “decide whether, in the absence of the regulatory restrictions, speech would be ‘chilled,’ or, if it were, whether the appropriate response would be to apply the full panoply of Fourth Amendment requirements.” Id. at 624 n.18. Here, there are no similar First Amendment safeguards in the CBP and ICE electronic device policies.
In light of the particular concerns raised by digital devices like cell phones detailed above, see Riley, 134 S. Ct. at 2489-91, and the limitless search authorizations in the CBP and ICE policies, Plaintiffs have plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.15
The Court, therefore, declines to dismiss Plaintiffs’ First Amendment claim (Count II). VI. Conclusion
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss, D. 14. So Ordered.
/s/ Denise J. Casper United States District Judge
15 The Court also notes that Plaintiffs’ Fourth and First Amendment claims are closely related. See Janfeshan, 2017 WL 3972461, at *12 (declining to dismiss plaintiff’s Fourth Amendment claim after denying dismissal of his Fifth Amendment claim because they were “integrally related,” and discovery would “involve the same witnesses and w[ould] largely overlap”).
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