Knight First Amendment Institute Sues for Records About Cellphone and Laptop Searches at the Border

March 27, 2017
iStock.com/Diego_Cervo

NEW YORK — The Knight First Amendment Institute at Columbia University today filed a Freedom of Information Act lawsuit against the Department of Homeland Security, seeking information on border searches of travelers’ electronic devices. The Institute filed the suit, Knight First Amendment Institute v. U.S. Department of Homeland Security, in the federal district court in Washington, D.C.

According to federal guidelines, the U.S. government can search a traveler’s electronic devices at the border even when there is no reason to suspect the person has done anything wrong. Customs and Border Protection and Immigration and Customs Enforcement officials have increasingly used this authority to subject U.S. citizens — including journalists, lawyers, and human rights advocates — to searches and seizures of their cellphones and other devices. Reports suggest that Muslims have been targeted disproportionately.

“These searches are extremely intrusive, and government agents shouldn’t be conducting them without cause,” said Jameel Jaffer, the Knight Institute’s executive director. “Putting this kind of unfettered power in the hands of border agents invites abuse and discrimination and will inevitably have a chilling effect on the freedoms of speech and association.”

Over the past few years, searches of electronic devices by U.S. border officers have increased dramatically, rising from about 5,000 in 2015 to about 25,000 in 2016, according to recent press reports. In February 2017 alone, border officials searched 5,000 devices.

It’s difficult to see how a policy that gives the government unregulated access to journalists’ correspondence and address books can be consistent with the First Amendment.
Katie Fallow

Of particular concern are the department’s policies for searching the cellphones and laptops of journalists, lawyers, and human rights advocates, said Katie Fallow, senior attorney at the Institute. “Allowing border agents to conduct fishing expeditions in journalists’ phones will make it more difficult for them to do the work we need them to do,” said Fallow. “It’s difficult to see how a policy that gives the government unregulated access to journalists’ correspondence and address books can be consistent with the First Amendment.”

The Knight Institute filed FOIA requests on March 15 with several components of DHS, seeking more detailed information on the number of travelers whose devices have been searched, the policies related to searching journalists, and internal audits of such practices by government civil rights agencies. The Institute is also seeking information from a database maintained by DHS that tracks every search of a device at the border, including the reason for the search. DHS created the database in response to concerns voiced by its own civil rights office about the possibility that the policies might be applied in a discriminatory or unlawful manner.

A criminal case concerning the constitutionality of electronic searches at the border is currently before the U.S. Court of Appeals for the Fourth Circuit. Among the advocacy groups that have filed amicus briefs are the ACLU and Electronic Frontier Foundation.

In addition to Jaffer, Fallow, and Alex Abdo of the Knight Institute, lawyers Scott B. Wilkens, Susan J. Kohlmann, Caroline M. DeCell, Michael E. Stewart, and Joshua H. Rubin of the firm Jenner & Block LLP are filing the suit.

The PDF of the complaint is here. To read the initial FOIA request, see here.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

For more information, contact the Knight Institute at (212) 854-9600 or Jennifer Valentino-DeVries, interim communications director, at jennifer.valentino@knightcolumbia.org.