Case 1:17-cv-00548 Document 1 Filed 03/27/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
KNIGHT FIRST AMENDMENT INSTITUTE )
)
AT COLUMBIA UNIVERSITY,
)
535 West 116th Street
)
314 Low Library
New York, NY 10027
)
)
Plaintiff,
)
)
)
v.
)
UNITED STATES DEPARTMENT OF
)
HOMELAND SECURITY,
)
245 Murray Lane, SW
)
)
Washington, DC 20528
)
and
)
)
)
UNITED STATES IMMIGRATION
AND CUSTOMS ENFORCEMENT,
)
500 12th Street, SW
)
Washington, DC 20536
)
)
Defendants.
)
)
)
)
)

Civil Action No. _______________

COMPLAINT FOR INJUNCTIVE RELIEF
Plaintiff Knight First Amendment Institute at Columbia University (the “Knight Institute”),
by and through its attorneys, hereby complains against Defendants United States Department of
Homeland Security (“DHS”) and United States Immigration and Customs Enforcement (“ICE”),
as follows:

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INTRODUCTION
1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

for injunctive and other appropriate relief requiring Defendants to grant expedited review of the
FOIA Request (the “Request”) submitted by the Knight Institute to each Defendant on March 15,
2017.
2.

The Request seeks disclosure of records concerning suspicionless searches of

individuals’ electronic devices at the nation’s borders.
3.

Directives issued in 2009 purport to authorize officers of U.S. Customs and Border

Protection (“CBP”) and ICE to search travelers’ electronic devices—including cell phones, tablets,
and laptop computers—at the U.S. border without individualized suspicion, and to detain those
devices indefinitely. Under the directives, CBP and ICE officers have seized and searched the
electronic devices of thousands of individuals, including U.S. citizens, without individualized
suspicion. The number of searches of electronic devices at the border has risen sharply since 2015,
with a marked increase in the first quarter of 2017.
4.

Among the individuals whose electronic devices have been seized and searched are

several journalists whose communications with confidential sources were subject to government
review. For example, CBP officers reportedly detained and interrogated French–American
photojournalist Kim Badawi while searching the contents of his cell phone, including his private
photos and his WhatsApp messages with a Syrian refugee source.
5.

Additionally, news reports indicate that border officials appear to be targeting

Muslims, including U.S. citizens who are Muslim, for searches of their electronic devices at the
border.

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6.

The indiscriminate search of Americans’ electronic devices at the border raises

serious constitutional questions under both the First and Fourth Amendment. People today store
their most intimate information on their electronic devices, reflecting their thoughts, explorations,
activities, and associations. Subjecting that information to unfettered government scrutiny invades
the core of individual privacy and threatens free inquiry and expression. See Riley v. California,
134 S. Ct. 2473, 2489 (2014) (noting that a cellphone may contain “the sum of an individual’s
private life” and holding that police cannot search a cellphone in a search incident to arrest without
first obtaining a warrant based on probable cause).
7.

The Request seeks information necessary for the public to fully understand the

government’s policies and practices relating to searches of electronic devices at the border.
Specifically, it seeks statistical, policy, and assessment records regarding the government’s
searches. Moreover, the Request seeks expedited processing, given the urgency of the ongoing
public debate.
8.

Defendants have failed to respond to the Knight Institute’s request for expedited

consideration of the Request within the ten days required by FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I),
and have failed to respond to the Knight Institute’s request for records and information. Injunctive
relief is appropriate to ensure Defendants’ timely compliance with FOIA’s requirements.
JURISDICTION AND VENUE
9.

This Court has jurisdiction over this action pursuant to 5 U.S.C. §552(a)(4)(B) and

28 U.S.C. § 1331.
10.

Venue is proper in this District under 5 U.S.C. § 552(a)(4)(B).

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PARTIES
11.

The Knight First Amendment Institute is a New York not-for-profit corporation

based at Columbia University that works to preserve and expand the freedoms of speech and the
press through strategic litigation, research, and public education. Research and public education
are essential to the Knight Institute’s mission. Obtaining information about government activity,
analyzing that information, and publishing and disseminating it to the press and public are among
the core activities the Knight Institute was established to conduct. The Knight Institute is a
“person” within the meaning 5 U.S.C. § 551(2).
12.

DHS is an “agency” within the meaning of 5 U.S.C. § 552(f). DHS has possession

and control over the requested records.
13.

ICE is a component of DHS and has possession and control over the requested

records.
FACTUAL ALLEGATIONS
14.

On March 15, 2017, the Knight Institute submitted identical versions of the Request

to DHS and two of its components, CBP and ICE.
15.

The Request seeks the following records:1 1) records from Defendants’ TECS

database containing information about the number and reasons for each search, detention,
retention, or sharing of individuals’ electronic devices or the information accessible on them since
fiscal year 2012; 2) documents relating to each instance since fiscal year 2012 in which CBP or
ICE searched, detained, retained, or shared an electronic device or the information accessible on
it; 3) revisions of or documents supplementing or superseding the CBP and ICE Directives
concerning border searches of electronic devices; 4) certain documents relating to any reviews of

1

A copy of the Request is attached hereto as Exhibit A.
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CBP’s or ICE’s policies or practices concerning electronic device searches; 5) documents
concerning or relating to complaints filed by individuals or organizations about CBP’s or ICE’s
search, review, retention, or sharing of the information on travelers’ electronic devices; 6)
documents reflecting policies, practices, or procedures concerning how CBP officers handle
“privileged or other sensitive materials,” including “work-related information carried by
journalists” as described in the CBP Directive concerning border searches of electronic devices;
and 7) documents reflecting policies, practices, and procedures concerning CBP’s antidiscrimination policy as applied to discretionary electronic device searches.
16.

The Knight Institute requested expedited processing of the Request on the ground

that there is a “compelling need” for the documents because they contain information “urgent[ly]”
needed by the Knight Institute, an organization “primarily engaged in disseminating information,”
in order to “inform the public concerning actual or alleged Federal Government Activity.” 5 U.S.C.
§ 552(a)(6)(E)(v)(II).
17.

Since the beginning of the year, reports of suspicionless searches of electronic

devices at U.S. borders and international airports have abounded, with a significant increase under
the new administration. Certain of those reports detail instances in which CBP officers exerted
pressure or outright force to obtain electronic devices and passcodes.
18.

The public has been denied the information necessary to fully understand the

government’s searches of electronic devices at the border. These records are urgently needed to
inform the ongoing debate over the wisdom and lawfulness of those searches.

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AGENCY RESPONSES AND ADMINISTRATIVE APPEALS
19.

By email dated March 16, 2017, DHS acknowledged receipt of the Request. DHS

did not communicate any decision regarding the Knight Institute’s request for expedited
processing.
20.

ICE has neither acknowledged receipt of the Request nor communicated any

decision regarding the Knight Institute’s request for expedited processing.
21.

By email dated March 24, 2017, CBP acknowledged receipt of the Request. CBP

did not communicate any decision regarding the Knight Institute’s request for expedited
processing.2
22.

No records responsive to the Request have been released by DHS, CBP, or ICE.

23.

The Knight Institute has exhausted all administrative remedies with respect to its

request for expedited processing because DHS and ICE have failed to comply with the time limit
for responding to expedited FOIA requests.
CAUSES OF ACTION
24.

The Knight Institute repeats and incorporates herein by reference the allegations of

Paragraphs 1 through 23.
25.

Defendants’ failure to respond to the Knight Institute’s request for expedited

processing violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations.

2

Although identical versions of the Request were submitted to DHS, CBP and ICE on March 15,
2017, the Request submitted to CBP may not have been received by the responsible FOIA Officer.
Out of an abundance of caution, the Knight Institute resubmitted the Request to CBP on March
21, 2017, receipt of which the CBP acknowledged by email dated March 27, 2017. CBP did not
communicate any decision regarding the Knight Institute’s request for expedited processing. 
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26.

Defendants’ failure to process the Request, and to make responsive records

available, “as soon as practicable” violates FOIA, 5 U.S.C. § 552(a)(6)(E)(iii), and Defendants’
corresponding regulations.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Knight First Amendment Institute at Columbia University
respectfully requests that judgment be entered against Defendants United States Department of
Homeland Security and United States Immigrations and Customs Enforcement, and that this Court:
A. Order Defendants to grant expedited processing of the Request;
B. Order Defendants immediately to release to the Knight Institute the records sought in
the Request;
C. Award the Knight Institute its reasonable costs and reasonable attorneys’ fees incurred
in this action; and
D. Grant such other and further relief as the Court may deem just and proper.

Dated: March 27, 2017

Respectfully submitted,

By: /s/

Matthew S. Hellman (484132)
Scott B. Wilkens (admission pending)
Michael E. Stewart (pro hac vice
application forthcoming)
JENNER & BLOCK LLP
1099 New York Avenue, NW
Suite 900
Washington, DC 20001
Telephone: (202) 639-6000
Facsimile: (202) 639-6066

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 Case 1:17-cv-00548 Document 1 Filed 03/27/17 Page 8 of 8

Susan J. Kohlmann (pro hac vice application
forthcoming)
Joshua H. Rubin (D00359)
Caroline M. DeCell (pro hac vice
application forthcoming)
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Telephone: (212) 891-1600
Facsimile: (212) 090-0894
Jameel Jaffer (MI0067)
Katherine Fallow (pro hac vice application
forthcoming)
Alex Abdo (pro hac vice application
forthcoming)
KNIGHT FIRST AMENDMENT
INSTITUTE AT COLUMBIA
UNIVERSITY
314 Low Library
535 West 116th Street
New York, NY 10027
Telephone: (212) 854-9600
Attorneys for Plaintiff

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