Case 1:17-cv-00548-TSC Document 10 Filed 04/19/17 Page 1 of 10

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,
)
)
UNITED STATES IMMIGRATION
)
AND CUSTOMS ENFORCEMENT,
)
500 12th Street, SW
)
Washington, DC 20536,
)
)
and
)
)
UNITED STATES CUSTOMS AND BORDER )
PROTECTION,
)
1300 Pennsylvania Avenue, NW
)
Washington, DC 20229,
)
)
Defendants.
)
)
)
)

Civil Action No. 17-cv-548-TSC

AMENDED COMPLAINT FOR INJUNCTIVE RELIEF
Plaintiff Knight First Amendment Institute at Columbia University (the “Knight Institute”),
by and through its attorneys, hereby complains as follows for its Amended Complaint against

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Defendants United States Department of Homeland Security (“DHS”), United States Immigration
and Customs Enforcement (“ICE”), and United Stated Customs and Border Protection (“CBP”):
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 DHS and ICE on March 15,
2017, and to CBP on March 22, 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 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
six months 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.

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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.
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.

On March 28, 2017, ICE granted the Knight Institute’s request for expedited

processing of its FOIA request.
9.

On March 31, 2017, DHS denied the Knight Institute’s request for expedited

processing.
10.

CBP failed to respond to the Knight Institute’s request within the ten days required

by FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I).

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11.

All Defendants have failed to produce records or information, and indeed have

failed to make any substantive response to the Request.
12.

Injunctive relief is appropriate to ensure Defendants’ timely compliance with

FOIA’s requirements.
JURISDICTION AND VENUE
13.

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

28 U.S.C. § 1331.
14.

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

15.

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).
16.

DHS is an “agency” within the meaning of 5 U.S.C. § 552(f). ICE and CBP are

components of DHS. DHS and these components have possession and control over some or all of
the requested records.
FACTUAL ALLEGATIONS
17.

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

to DHS and one of its components, ICE.

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18.

The Knight Institute submitted an identical version of the same Request to CBP,

another DHS component, on March 22, 2017.1
19.

On or around March 28, 2017, ICE referred the Request to DHS’s FOIA Office and

to CBP, and indicated that information responsive to the Request is “under the purview” of the
DHS FOIA Office and CBP.
20.

On or around March 31, 2017, DHS referred the Request to its Office of the

Inspector General (“OIG”), and to the Transportation Security Administration (“TSA”), another
DHS component.
21.

The Request seeks the following records:2 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
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

1

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
22, 2017. 
2
A copy of the Request is attached hereto as Exhibit A.
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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.
22.

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).
23.

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.
24.

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.
AGENCY RESPONSES AND ADMINISTRATIVE APPEALS
25.

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.
26.

By email dated March 28, 2017, ICE acknowledged receipt of the Request and

granted expedited processing of the Request.

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27.

By email and letter dated March 31, 2017,3 DHS denied expedited processing of

the Request. It did not explain its rationale for denying expedited processing even though ICE had
granted the request for expedited processing.
28.

DHS’s response further stated that “unusual circumstances” existed to excuse its

failure to produce records for an additional ten days under 5 U.S.C. § 552(a)(6)(B). However,
DHS’s stated reason for invoking this section—that the Request “seeks documents that will require
a thorough and wide-ranging search” —does not constitute “unusual circumstances” as defined by
5 U.S.C. § 552(a)(6)(B)(iii).
29.

On or around March 31, 2017, DHS referred the Request to TSA, which

acknowledged receipt of the Request and denied expedited processing on April 4, 2017. TSA did
not explain its rationale for denying expedited processing despite ICE’s grant of the request for
expedited processing.
30.

TSA’s response further stated that “unusual circumstances” existed to excuse its

failure to produce records for an additional ten days under 5 U.S.C. § 552(a)(6)(B). However, TSA
did not specify the “unusual circumstances” for invoking this section, and its letter merely set forth
the statutory definition of “unusual circumstances” without stating which, if any, of these
circumstances applied to the Request.
31.

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

32.

No substantive response regarding the production of records or information

TSA.

responsive to the Request has been made by DHS, CBP, ICE, or TSA.

3

DHS initially acknowledged receipt of the Request by email dated March 16, 2017, but it did not
at that point communicate any decision regarding the Knight Institute’s request for expedited
processing.
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33.

The Knight Institute’s requests for expedited processing to DHS and CBP are ripe

for adjudication in this Court, because each of these defendants has taken “action to deny or affirm
denial of a request for expedited processing” or failed “to respond in a timely manner to such a
request.” 5 U.S.C. § 552(a)(6)(E)(iii). DHS denied the Knight Institute’s request for expedited
processing on March 31, 2017. CBP did not respond to the Knight Institute’s request for expedited
processing within ten days after the March 22, 2017 date of the request, as required by 5 U.S.C.
§ 552(a)(6)(E)(ii)(I).
FIRST CAUSE OF ACTION – FAILURE TO GRANT EXPEDITED PROCESSING
Against DHS and CBP
34.

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

Paragraphs 1 through 33.
35.

DHS’s and CBP’s denials of expedited processing of the Request or 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.
36.

Injunctive relief is appropriate to remedy DHS’s and CBP’s failures to grant

expedited processing of the Request.
SECOND CAUSE OF ACTION – FAILURE TO PRODUCE RECORDS
Against All Defendants
37.

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

Paragraphs 1 through 36.
38.

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’

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corresponding regulations. Defendants’ failure to process the Request “promptly,” id.
§ 552(a)(3)(A), also violates FOIA as well as Defendants’ corresponding regulations.
39.

Injunctive relief is appropriate to remedy Defendants’ failure to process the Request

in a timely manner, as required by FOIA.
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, United States Immigrations and Customs Enforcement, and United States
Customs and Border Protection, and that this Court:
A. Order DHS and CBP to grant expedited processing of the Request;
B. Order all Defendants immediately to release to the Knight Institute the records sought
in the Request;
C. Retain jurisdiction of this action to ensure no agency records are wrongfully withheld,
and order Defendants to disclose any wrongfully withheld records;
D. Award the Knight Institute its reasonable costs and reasonable attorneys’ fees incurred
in this action; and
E. Grant such other and further relief as the Court may deem just and proper.
Dated: April 19, 2017

Respectfully submitted,
By: /s/ Matthew S. Hellman
Matthew S. Hellman (484132)
Scott B. Wilkens (admission pending)
Michael E. Stewart (pro hac vice)
JENNER & BLOCK LLP
1099 New York Avenue, NW
Suite 900
Washington, DC 20001

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Telephone: (202) 639-6000
Facsimile: (202) 639-6066
Susan J. Kohlmann (pro hac vice)
Joshua H. Rubin (D00359)
Caroline M. DeCell (pro hac vice)
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
Telephone: (212) 891-1600
Facsimile: (212) 891-1699
Jameel Jaffer (MI0067)
Katherine Fallow (pro hac vice)
Alex Abdo (pro hac vice)
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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