Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 1 of 11 1 2 3 4 5 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, LINDA LYE - #215584 llye@aclunc.org VASUDHA TALLA - #316219 vtalla@aclunc.org 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 6 Attorneys for Plaintiffs 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 8 9 10 11 AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, 12 13 14 15 16 Plaintiff, Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF v. TRANSPORTATION SECURITY ADMINISTRATION, Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 2 of 11 1 INTRODUCTION 1. 2 This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552, 3 to enforce the public’s right to information about the federal government’s searches of electronic 4 devices at airports. Government agencies routinely search travelers’ phones, computers, tablets 5 and other devices, which hold within them vast quantities of information—photographs, emails, 6 text and audio messages, address books—that reveal intimate and deeply personal details of an 7 individual’s life. 8 2. 9 The federal government’s searches of electronic devices at airports—along with intrusive questioning, lengthy detentions, and even refusal to allow certain travelers to enter the 10 country—has generated widespread media interest and public concern. Recent statistics 11 demonstrate that the number of these searches have multiplied year after year. Access to 12 information about electronic device searches at airports is necessary to inform meaningful public 13 debate over the scope of government conduct that potentially threatens core civil rights and 14 liberties protected by the Constitution. Federal agencies have published their policies regarding 15 searches of electronic devices at international borders. But the federal government’s policies on 16 searching electronic devices of domestic air passengers remains shrouded in secrecy. 3. 17 Over two months ago, on December 20, 2017, Plaintiff American Civil Liberties 18 Union of Northern California (“ACLU-NC”), a non-profit civil rights organization, submitted 19 two FOIA requests to Defendant Transportation Security Administration (“TSA”) seeking 20 records about policies, procedures, and protocols regarding the search of airplane passengers’ 21 electronic devices; training of relevant personnel related to the search or examination of 22 electronic devices; and equipment used to search, examine, or extract data from electronic 23 devices. 24 4. Since that time, TSA has provided ACLU-NC with no records. 25 5. ACLU-NC now brings this action to obtain the information to which it is 26 statutorily entitled. 27 /// 28 1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 3 of 11 1 2 PARTIES 6. Plaintiff American Civil Liberties Union of Northern California is an affiliate of 3 the American Civil Liberties Union, a national, non-profit, non-partisan organization with the 4 mission of protecting civil liberties from government incursions, safeguarding basic 5 constitutional rights, and advocating for open government. ACLU-NC is established under the 6 laws of the state of California and is headquartered in San Francisco, California. ACLU-NC has 7 over 90,000 members. In support of its mission, ACLU-NC uses its communications department 8 to disseminate to the public information relating to its mission, through its website, newsletters, 9 in-depth reports, and other publications. 10 7. Defendant Transportation Security Administration is an agency within the 11 meaning of 5 U.S.C. §552(f). The agency has its headquarters in Arlington, Virginia, and field 12 offices all over the country, including San Francisco, California. JURISDICTION 13 14 8. This Court has subject matter jurisdiction and personal jurisdiction over the 15 parties pursuant to 5 U.S.C. §§552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has subject 16 matter jurisdiction over this action pursuant to 28 U.S.C. §§1331 and 1346. 17 VENUE AND INTRADISTRICT ASSIGNMENT 18 19 20 21 22 23 24 9. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§1391(e) and 1402. Plaintiff has its principal place of business in this district. 10. Pursuant to Local Rule 3-2(c) and (d), assignment to the San Francisco division is proper because Plaintiff is headquartered in San Francisco. FACTUAL ALLEGATIONS The Federal Government’s Searches of Electronic Devices at Airports and Borders Are a Matter of Significant Public Interest 11. Mobile phones, computers, tablets, digital cameras—these electronic devices and 25 others possess the most intimate details of an individual’s life. They are also ubiquitous, carried 26 by millions of passengers who travel in and out of airports in the United States each day. With 27 these devices, passengers take with them photographs of themselves, their families, and their 28 2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 4 of 11 1 friends; text and audio messages with an array of colleagues and loved ones; emails and 2 archives; social media messages and networks; confidential business and legal information; 3 protected medical records; bank statements; and a wealth of other information that lay bare how 4 and with whom people communicate, work, and live each day. 12. 5 The Supreme Court has recognized the significant privacy interests an individual 6 possesses in electronic devices. In a 2014 opinion addressing searches of cell phones, the Court 7 noted that cell phones are “such a pervasive and insistent part of daily life that the proverbial 8 visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. 9 California, 134 S. Ct. 2473, 2484 (2014). The data contained in cell phones reaches far back in 10 time, “place[s] vast quantities of personal information literally in the hands of individuals,” and 11 collects several pieces of information that “reveal much more in combination than any isolated 12 record.” Id. at 2485, 2489. Cell phones are unique not only for containing certain types of data 13 with no physical analogue—such as internet search and browsing history, location data, and 14 apps—but also for serving as a portal to data stored on remote or “cloud” servers. Id. at 2489, 15 2491. In light of the privacy concerns posed by searches of cell phones, the Court declined to 16 allow warrantless searches by police incident to an individual’s arrest. 13. 17 Federal agencies, such as Defendant TSA, U.S. Customs and Border Protection 18 (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”), regularly search passengers’ 19 electronic devices at airports. Each year, the number of searches by CBP has grown: from 5,000 20 searches in Fiscal Year (FY) 2015, to 25,000 searches in FY 2016, to 30,000 searches in FY 21 2017. 22 14. CBP and ICE have published policies regarding their authority to search and seize 23 electronic devices at the border, including airports. CBP requires passengers to provide their 24 devices unlocked or the password or PIN so that an officer can view data contained on the 25 device. See U.S. Customs and Border Protection, CBP Directive No. 3340-049A, Border Search 26 of Electronic Devices, Jan. 4, 2018, http://bit.ly/2rjmnYj. CBP policy authorizes both a “basic 27 search” and an “advanced search” of passengers’ devices. In the former, an officer examines 28 3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 5 of 11 1 only information that is resident upon the device, using external equipment only to gain access to 2 the device if necessary. In the latter, external equipment is used not merely to gain access to the 3 device, but to review, copy, and/or analyze its contents. 4 15. Media accounts highlight the privacy concerns posed by electronic device 5 searches, seizures, and copying of data: a NASA scientist potentially carrying sensitive 6 information on his phone, Loren Grush, “A US-Born NASA Scientist Was Detained at the 7 Border Until He Unlocked His Phone,” Feb. 12, 2017, The Verge, http://bit.ly/2ooHzr3; a 8 Canadian photojournalist denied entry to the United States to cover protests when he failed to 9 provide access to his phones, Daniel Victor, “Canadian Journalists Detention at U.S. Border 10 Raises Press Freedom Alarms,” N.Y. Times, Dec. 2, 2016, http://nyti.ms/2EN1A5q; a U.S. 11 journalist working for the Wall Street Journal who objected to turning over her cell phones, id.; a 12 Muslim-American woman returning from visiting her refugee family overseas, whose phone was 13 searched, Lubana Adi, “My phone was searched at LAX, which apparently is the new normal,” 14 Los Angeles Times, April 7, 2017, http://lat.ms/2opysbm; a U.S. citizen asked to unlock his cell 15 phones before he could board a flight from Los Angeles to Saudi Arabia, Daniel Victor, “What 16 Are Your Rights if Border Agents Want to Search Your Phone?,” N.Y. Times, Feb. 14, 2017, 17 http://nyti.ms/2lj2AE9. 18 16. These troubling incidents have produced intense public interest in searches of 19 electronic devices at airports by federal agencies, including individual rights in response to such 20 searches. Plaintiff ACLU-NC and other organizations, along with media outlets, have published 21 guidance for citizens and immigrants as they travel domestically and internationally and 22 encounter requests from TSA, CBP or ICE to search their devices. See ACLU of Northern 23 California, “Know the Facts and Know Your Rights for Arab, Middle Eastern, Muslim, and 24 South Asian Communities,” May 2017, http://bit.ly/2CDeOMb; Electronic Frontier Foundation, 25 “Digital Privacy at the U.S. Border: Protecting the Data on Your Devices, Dec. 2017, 26 http://bit.ly/2CAwdFu; Patrick J. Lee, “Can Customs and Border Enforcement Search Your 27 Phone? These Are Your Rights,” ProPublica.org, Mar. 13, 2017, http://bit.ly/2nJ2Slh; Daniel 28 4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 6 of 11 1 Victor, “What Are Your Rights if Border Agents Want to Search Your Phone?,” N.Y. Times, 2 Feb. 14, 2017, http://nyti.ms/2lj2AE9. 17. 3 CBP claims the authority to conduct warrantless searches of electronic devices at 4 international border crossings without probable cause to support the search. That practice is 5 being challenged by the national ACLU, of which Plaintiff ACLU-NC is an affiliate, as violating 6 the First and Fourth Amendments to the Constitution. See Alasaad v. Duke, No. 1:17-cv-11730- 7 DJC (D. Mass. filed Sep. 13, 2017). 18. 8 9 Alongside CBP, TSA has also been reported as heightening its screening procedures of domestic passengers’ electronic devices. See, e.g., Russ Thomas, “TSA 10 implements new screening procedures in Montana,” KPAX.com, Dec. 14, 2017, 11 http://bit.ly/2sMepaI; Joel Hruska, “TSA Will Now Screen All Electronics ‘Larger Than a Cell 12 Phone,’” Extreme Tech, July 26, 2017, http://bit.ly/2sG2Fq4. 19. 13 TSA has not made publicly available any policies or procedures governing 14 searches of electronic devices, especially those held by passengers engaged in purely domestic 15 air travel. As such, the public is unaware of the legal basis for TSA’s searches of electronic 16 devices of passengers not presenting themselves at the border and flying on a domestic flight. 17 Further, the public is unaware of TSA’s policies and procedures for advanced or forensic 18 searches, in which external equipment is used to search, examine, or extract data from 19 passengers’ electronic devices and SIM cards. And the public has no knowledge of TSA’s 20 policies and procedures relating to seizure of electronic devices, retention or destruction of data 21 resident on those devices, or use of the device to access data held on a “cloud” or elsewhere. 20. 22 The information sought in ACLU-NC’s FOIA request would reveal for the first 23 time information concerning TSA’s searches of domestic passengers’ electronic devices, and 24 allow members of the public a meaningful opportunity to vet the government’s broad claim of 25 authority to conduct such searches. 26 /// 27 /// 28 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 7 of 11 1 Plaintiff Submitted a FOIA Request to TSA Headquarters But TSA Has Failed to Produce Any Records 2 21. 3 On December 20, 2017, ACLU-NC submitted a FOIA request to the TSA 4 headquarters (“TSA Headquarters”) in Arlington, Virginia seeking information about its searches 5 of passengers’ electronic devices (the “TSA Headquarters Request”). A copy of Plaintiff ACLU- 6 NC’s TSA Headquarters Request request is appended hereto as Exhibit 1. 22. 7 8 In particular, the TSA Headquarters Request seeks records, from January 1, 2012 to the present, regarding any of the following: 9 17 1. Policies, procedures, or protocols regarding the search of passengers’ electronic devices. This includes but is not limited to any policies, procedures, or protocols related to the “enhanced screening of electronic devices” referenced by thenSecretary of Homeland Security John Kelly in June 2017.1 2. Equipment, including but not limited to SIM-card readers and software manufactured by Cellebrite 2, used to search, examine, or extract data from passengers’ electronic devices and SIM cards at all airports in California. This request seeks records including but not limited to: documentation related to the acquisition, testing, use, maintenance, and location of such equipment; any inventories of the number of each type of equipment.3 This request includes any records in the possession of TSA but generated by third-party service providers. 3. Training of transportation security officers or contractors retained to provide security screening services, related to the search or examination of passengers’ electronic devices. 18 23. 10 11 12 13 14 15 16 19 Headquarters Request. 24. 20 21 More than 20 working days have passed since TSA received the TSA As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not received any response from TSA to the TSA Headquarters Request. 22 23 24 25 26 27 28 1 https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference Examples of such devices include, but are not limited to, a Universal Forensic Extraction Device (UFED) manufactured by Cellebrite. E.g., https://www.cellebrite.com/en/press/cellebrite-introduces-ufed-touch2-platform/. 3 According to the Government Accountability Office, TSA possesses ““acquisition documentation for passenger and baggage screening technologies,” including memorandums and “information regarding the number of each technology deployed in airports nationwide.” http://www.gao.gov/assets/680/674297.pdf at 28. 6 2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 8 of 11 1 25. As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not 2 received a determination from TSA of whether TSA will comply with the TSA Headquarters 3 Request. 26. 4 As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not 5 received any documents from TSA that are responsive to the TSA Headquarters Request or any 6 correspondence indicating when TSA might provide any documents. 7 27. Plaintiff ACLU-NC has exhausted all applicable administrative remedies. 8 28. TSA has wrongfully withheld the requested records from Plaintiff ACLU-NC. Plaintiff Submitted a FOIA Request to TSA’s San Francisco Field Office But TSA Has Failed to Produce Any Records 9 10 29. 11 On December 20, 2017, Plaintiff ACLU-NC submitted a FOIA request to the 12 TSA field office in San Francisco, California (the “TSA Field Office”) seeking information 13 about its searches of passengers’ electronic devices (the “TSA Field Office Request”). A copy of 14 Plaintiff ACLU-NC’s TSA Field Office Request is appended hereto as Exhibit 2. 30. 15 16 In particular, the TSA Field Office Request seeks records, from January 1, 2012 to the present, regarding any of the following: 17 1. Policies, procedures, or protocols regarding the search of passengers’ electronic devices. This includes but is not limited to any policies, procedures, or protocols related to the “enhanced screening of electronic devices” referenced by thenSecretary of Homeland Security John Kelly in June 2017.4 2. Equipment, including but not limited to SIM-card readers and software manufactured by Cellebrite5, used to search, examine, or extract data from passengers’ electronic devices and SIM cards at the San Francisco International Airport. This request seeks records including but not limited to: documentation related to the acquisition, testing, use, maintenance, and location of such equipment; any inventories of the number of each type of equipment.6 This request includes any records in the possession of the TSA San Francisco Field Office but generated by Covenant Aviation Security. 18 19 20 21 22 23 24 4 25 26 27 28 https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference. Examples of such devices include, but are not limited to, the UFED Touch Platform manufactured by Cellebrite: https://www.cellebrite.com/en/press/cellebrite-introduces-ufedtouch2-platform/. 6 According to the Government Accountability Office, TSA possesses ““acquisition documentation for passenger and baggage screening technologies,” including memorandums and 7 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 9 of 11 1 5 3. Logs referencing the use or maintenance of any equipment used to search, examine, or extract data from passengers’ electronic devices at the San Francisco International Airport. 4. All communications between SFO and TSA referencing the replacement, supplementation, or relocation of any piece of Transportation Security Equipment (“TSE”) at SFO.7 5. Training of transportation security officers or contractors retained to provide security screening services, related to the search or examination of passengers’ electronic devices. 6 31. 2 3 4 By letter dated January 4, 2018, TSA acknowledged receipt of the TSA Field 7 Office Request, assigned it an “unperfected case number,” and requested additional information 8 about Plaintiff’s request. TSA also determined that the TSA Field Office Request met the 9 “unusual circumstances” criteria of FOIA, and stated that it would not be able to complete the 10 processing of the request within 30 working days (20 working days plus 10 additional working 11 days). A copy of this letter is appended hereto as Exhibit 3. 12 32. By letter dated January 19, 2018, Plaintiff responded to TSA’s request for further 13 information on the following items contained in the TSA Field Office Request. A copy of this 14 letter is appended hereto as Exhibit 4. 15 16 17 18 19 20 21 Item 2: This request seeks all records in the possession of the TSA San Francisco Field Office, regardless of the author of the document, related to (1) the acquisition, testing, use, maintenance, and location of equipment used to search, examine, or extract data from passengers’ electronic devices and SIM cards and (2) any inventories of the number of each type of such equipment. Item 3: This request seeks all use or maintenance logs related to the search, examination, or extraction of data from passengers’ electronic devices. Any applicable exemption from disclosure under FOIA does not alleviate the agency of its duty to search for responsive records. Rather, the proper procedure is to search for and identify the records, and then to assert an applicable FOIA exemption. Item 4: This request seeks all communications between SFO and TSA about TSE with a nexus to the search of, examination of, or extraction of data from passengers’ electronic devices at SFO. 22 23 24 25 26 27 28 “information regarding the number of each technology deployed in airports nationwide.” http://www.gao.gov/assets/680/674297.pdf at 28. 7 According to a TSA 2015 report to Congress, “If TSA has identified the need to replace, supplement, or relocate a piece of TSE,” TSA “informs the airport of the decision through a memo and follow-on communication as needed.” https://www.fbo.gov/utils/view?id=62bf59d0ee09e6681071db6c5b15d803 at 17. This request seeks any such memos, as well as follow-up communications. 8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 10 of 11 1 33. By letter dated January 25, 2018, TSA notified Plaintiff of a “perfected case 2 number” for the TSA Field Office Request and stated that no additional information was needed 3 at that time. A copy of this letter is appended hereto as Exhibit 5. 4 5 6 34. More than 30 working days have passed since TSA received the TSA Field Office Request. 35. More than 30 working days have passed since TSA notified Plaintiff on January 7 25, 2018 of a “perfected case number” and that no further information was needed from Plaintiff 8 at that time. 9 10 11 36. As of the date of the filing of this Complaint, Plaintiff has not received a determination from TSA of whether TSA will comply with the TSA Field Office Request. 37. As of the date of the filing of this Complaint, Plaintiff has not received any 12 documents from TSA that are responsive to the TSA Field Office Request or any correspondence 13 indicating when TSA might provide any documents. 14 38. Plaintiff has exhausted all applicable administrative remedies. 15 39. TSA has wrongfully withheld the requested records from Plaintiff. FIRST CLAIM FOR RELIEF Violation of Freedom of Information Act For Wrongful Withholding Of Agency Records 16 17 18 40. Plaintiff incorporates the above paragraphs as if fully set forth herein. 19 41. Defendant TSA has wrongfully withheld agency records requested by Plaintiff 20 under FOIA and has failed to comply with the statutory time for the processing of FOIA 21 requests. 22 23 24 42. Plaintiff has exhausted the applicable administrative remedies with respect to TSA’s wrongful withholding of the requested records. 43. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of 25 the requested documents because Defendant TSA continues to improperly withhold agency 26 records in violation of FOIA. Plaintiff will suffer irreparable injury from, and have no adequate 27 legal remedy for, TSA’s illegal withholding of government documents pertaining to the subject 28 9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ Case 3:18-cv-01539 Document 1 Filed 03/12/18 Page 11 of 11 1 of Plaintiff’s FOIA request. PRAYER FOR RELIEF 2 3 WHEREFORE, Plaintiff prays that this Court: 4 A. Order Defendant TSA to promptly process and release all responsive records; 5 B. Declare that Defendant TSA’s failure to disclose the records requested by 6 Plaintiff is unlawful; 7 8 9 C. Award Plaintiff its litigation costs and reasonable attorney’s fees incurred in this D. Grant such other relief as the Court may deem just and proper. action; 10 11 Dated: March 12, 2018 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 12 13 By: 14 /s/ Vasudha Talla Vasudha Talla Linda Lye 15 Attorneys for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________ .