Customs officials agree to delete data copied from cellphone seized without any warrant or explanation
(NEW YORK, NY, 10/31/18) – The New York and New Jersey chapters of the Council on American-Islamic Relations (CAIR-NY and CAIR-NJ), state chapters of the nation’s largest Muslim civil rights group, today announced the settlement of a federal court case challenging U.S. Customs and Border Protection’s (CBP) warrantless and unconstitutional seizure of an American Muslim U.S. citizen’s cell phone.
Rejhane Lazoja, a 39-year-old woman residing in Staten Island, N.Y., had her phone taken when she landed at Newark Liberty International Airport earlier this year. CBP held Lazoja’s iPhone 6S Plus and SIM card for 130 days, never explaining why they were taken. Under this groundbreaking settlement, CBP agrees to delete all data copied from Lazoja’s iPhone.
SEE: Feds took woman’s iPhone at border, she sued, now they agree to delete data
Numerous lawsuits have challenged CBP’s deletion of data at the border, but this settlement is the first in the country to secure the deletion of illegally-seized data. Under the agreement, CBP did not admit any wrongdoing. The case was also novel for proceeding under rule 41(g) of the Federal Rules of Criminal Procedure, a provision for recovering property unlawfully seized by federal authorities. The case appears to be the first in the country to use rule 41(g) secure the deletion of electronic information that was unlawfully seized at the border. It also appears to be the first such settlement since the Supreme Court’s landmark decision in U.S. v. Carpenter, striking down warrantless seizure of cellphone location data.
SEE: August 23, 2018 Brief Supporting Motion for Return of Property.
“The Trump administration needs to understand that our border is not a Constitution-free zone,” said CAIR-NY Legal Director Albert Fox Cahn. “This settlement brings us one step closer to the day when Americans can travel with the peace-of-mind that our rights will be respected. As the U.S. Supreme Court has recognized, there is nothing more invasive than searching and copying the data on our smartphones. These phones track our location, our conversations and even our passing thoughts. Muslim travelers must not be subjected to this warrantless electronic dragnet simply for practicing their faith. If CBP wants to search our phones, or if they want to access our social media accounts and text messages, I have a simple answer: get a warrant.”
“The CBP has been profiling Muslims for years as they cross the border,” said CAIR-NJ Legal Director Jay Rehman. “Their latest tactic of confiscating phones and attempting to retrieve data is a blatant violation of the Fourth Amendment privacy guaranteed under the Constitution.”
“When I came back to the U.S., I expected to be welcomed home,” said plaintiff Rejhane Lazoja. “Instead, I was questioned, degraded, and had my phone taken away. I’m incredibly relieved to know that my files and my photos have been deleted. After this settlement, I hope others won’t have endure the same degradation I faced.
“This is a win for Ms. Lazoja and an important outcome in an emerging area of law,” said CAIR-NY Attorney Carey Shenkman. “Sadly, so many Muslims who travel endure circumstances like in this case, but we hope this result shows CBP that we will be there to challenge them as long as they keep violating constitutional rights at the border.”
SEE: October 30, 2018 Stipulation Re Data Deletion and Dismissal.
CAIR-NY and CAIR-NJ filed the case on August 23rd, 2018, in the U.S. District Court for the District of New Jersey alleging that CBP violated the Fourth Amendment of the U.S. Constitution both by taking Lazoja’s iPhone, and by keeping it for months after she returned home to the United States on February 26, 2018. The case is styled as a motion for return of property under Federal Rule of Criminal Procedure 41(g), and the Defendants include U.S. Department of Homeland Security Secretary Kristjen Nielsen, CBP Commissioner Kevin K. Mcaleenan, and CBP Newark Port Director Adele Fasano.
The motion argues that CBP violated Lazoja’s Fourth Amendment rights not only by seizing the phone, but by the length of time the phone was retained and by any copying of her personal data. In June the U.S. Supreme Court held in Carpenter v. United States that police need to obtain a warrant in order to seize cell tower location data.
According to the filing: “Seizing and searching a cell phone is unlike seizing or searching any other property. Cell phones are a uniquely intimate and expansive repository of our lives. They do far more than just make calls and send e-mails; they monitor and log much of our movement, activity, and even our thinking in real time. They enable us to stay connected with coworkers and loved ones -- losing a phone essentially cuts one off from modern society. In June, the Supreme Court recognized the indispensability of cell phones and the heightened privacy interests at stake when they are utilized in warrantless investigations.”
CBP has steadily increased electronic device searches at airports in recent years. In fiscal year 2017, they searched 30,200 devices, up from 19,051 in the prior fiscal year.
SEE: The Cybersecurity 202: Warrantless device searches at the border are rising. Privacy advocates are suing.
Meanwhile, Muslim travelers report that they are stopped for highly-invasive secondary inspection searches nearly three times as often as other Americans when traveling. According to a recent survey of Muslim travelers, 30 percent reported being subjected to secondary screening, which often includes cellphone searches, compared with 12 percent of overall travelers.
SEE: ISPU American Muslim Poll 2017
The case comes as federal courts increasingly recognize that cellphones contain uniquely intimate data, and that searches of the data, apps, and other records they contain should require a warrant.
The invasion was even more severe for Lazoja, whose phone contained confidential attorney-client communications and photos of her without her hijab (Islamic head scarf). Lazoja wears the hijab as an expression of her Islamic faith, covering her hair in front of men who are not relatives. CBP’s retention of such photos only compounds the trauma of this warrantless invasion of her privacy. Additionally, CBP may share this same data with local and other federal law enforcement agencies.
CAIR’s mission is to protect civil rights, enhance understanding of Islam, promote justice, and empower American Muslims.
La misión de CAIR es proteger las libertades civiles, mejorar la comprensión del Islam, promover la justicia, y empoderar a los musulmanes en los Estados Unidos.