Case 1:17-cv-11730 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)

No. _______________________

Plaintiffs,
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

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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.
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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.

2

Venue is proper in this Court pursuant to 28 U.S.C. § 1391.

https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf.
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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

19.

Plaintiff Ismail Abdel-Rasoul aka Isma’il Kushkush is a U.S. citizen who

artist.

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/.
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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/.
Apple, 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.
5

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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 ¶¶

b.

The family had already been detained in the customs inspection

47–48.

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.

20

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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 ¶¶

b.

A CPB officer had handed Mr. Bikkannavar a CBP form titled

47–48.

“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 ¶¶

b.

Mr. Dupin was alone in an interrogation room with three CBP

47–48.

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-year-

old 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 ¶¶

b.

Mr. Dupin again understood, based on the CBP officers’ tone and

47–48.

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 ¶¶

b.

The officers repeatedly demanded that Mr. Gach produce his

47–48.

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 ¶¶

b.

Mr. Kushkush understood, based on the CBP officer’s tone and

47–48.

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 ¶¶

b.

The CBP officer told Mr. Kushkush that he would keep his phone

47–48.

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 ¶¶

b.

She was confined alone with two CBP officers in a small room that

47–48.

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 ¶¶

b.

CBP officers told Ms. Merchant that they would seize her phone

47–48.

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 ¶¶

b.

Mr. Shibly understood, based on the CBP officer’s tone and

47–48.

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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 Case 1:17-cv-11730 Document 1 Filed 09/13/17 Page 40 of 42

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

42