Muslim civil rights group says customs officials kept cellphone for 130 days without any warrant or explanation
(South Plainfield, NJ, 8/23/18) – The New York and New Jersey chapters of the Council on American-Islamic Relations (CAIR-NY and CAIR-NJ), state chapters of the nation’s largest Muslim civil rights group, today filed a case in federal court challenging U.S. Customs and Border Protection’s (CBP) warrantless and unconstitutional seizure of an American Muslim U.S. citizen’s cell phone.
Rejhane Lazoja, a 39-year-old woman residing in Staten Island, N.Y., had her phone taken when she landed at Newark Liberty International Airport earlier this year. CBP held Lazoja’s iPhone 6S Plus and SIM card for 130 days, never explaining why they were taken. When CBP finally returned the phone, they refused to destroy copies of the data.
SEE: Woman: My iPhone Was Seized at Border, Then Imaged—Feds Must Now Delete Data https://arstechnica.com/tech-policy/2018/08/woman-my-iphone-was-seized-at-border-then-imaged-feds-now-must-delete-data/
“The Trump administration needs to understand that our border is not a Constitution-free zone,” said CAIR-NY Legal Director Albert Fox Cahn. “As the U.S. Supreme Court has recognized, there is nothing more invasive than searching and copying the data on our smartphones. These phones track our location, our conversations and even our passing thoughts. Muslim travelers must not be subjected to this warrantless electronic dragnet simply for practicing their faith. Americans don’t forfeit their Fourth Amendment rights against searches simply for going to the airport. If CBP wants to search our phones, or if they want to access our social media accounts and text messages, I have a simple answer: get a warrant.”
“The CBP has been profiling Muslims for years as they cross the border,” said CAIR-NJ Legal Director Jay Rehman. “Their latest tactic of confiscating phones and attempting to retrieve data is a blatant violation of the Fourth Amendment privacy guaranteed under the Constitution.”
“It is astonishing that our government believes it is lawful to take phones for months from people who have done nothing wrong,” said CAIR-NY Attorney Carey Shenkman. “What happened to Ms. Lazoja, and so often does to Muslims who travel, is reprehensible.”
“When I came back to the U.S., I expected to be welcomed home,” said plaintiff Rejhane Lazoja. “Instead, I was questioned, degraded, and had my phone taken away. I expected better from my country and from customs officials.”
CAIR-NY and CAIR-NJ filed the case this morning in the U.S. District Court for the District of New Jersey alleging that CBP violated the Fourth Amendment of the U.S. Constitution both by taking Lazoja’s iPhone, and by keeping it for months after she returned home to the United States on February 26, 2018. The case is styled as a motion for return of property under Federal Rule of Criminal Procedure 41(g), and the Defendants include U.S. Department of Homeland Security Secretary Kristjen Nielsen, CBP Commissioner Kevin K. Mcaleenan, and CBP Newark Port Director Adele Fasano.
The motion argues that CBP violated Lazoja’s Fourth Amendment rights not only by seizing the phone, but by the length of time the phone was retained and by any copying of her personal data. In June the U.S. Supreme Court held in Carpenter v. United States that police need to obtain a warrant in order to seize cell tower location data.
According to the filing: “Seizing and searching a cell phone is unlike seizing or searching any other property. Cell phones are a uniquely intimate and expansive repository of our lives. They do far more than just make calls and send e-mails; they monitor and log much of our movement, activity, and even our thinking in real time. They enable us to stay connected with coworkers and loved ones — losing a phone essentially cuts one off from modern society. In June, the Supreme Court recognized the indispensability of cell phones and the heightened privacy interests at stake when they are utilized in warrantless investigations.”
SEE: August 23, 2018 Brief Supporting Motion for Return of Property. http://www.cair-ny.org/s/Lazoja-v-Nielsen-et-al-DNJ-FRCrP-Rule-41g-motion-8d5y.pdf
CBP has steadily increased electronic device searches at airports in recent years. In fiscal year 2017, they searched 30,200 devices, up from 19,051 in the prior fiscal year.
SEE: The Cybersecurity 202: Warrantless device searches at the border are rising. Privacy advocates are suing. https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/08/07/the-cybersecurity-202-warrantless-device-searches-at-the-border-are-rising-privacy-advocates-are-suing/5b6883771b326b0207955f46/?
Meanwhile, Muslim travelers report that they are stopped for highly-invasive secondary inspection searches nearly three times as often as other Americans when traveling. According to a recent survey of Muslim travelers, 30 percent reported being subjected to secondary screening, which often includes cellphone searches, compared with 12 percent of overall travelers.
SEE: ISPU American Muslim Poll 2017 https://www.ispu.org/wp-content/uploads/2017/03/American-Muslim-Poll-2017-Report.pdf
The case comes as federal courts increasingly recognize that cellphones contain uniquely intimate data, and that searches of the data, apps, and other records they contain should require a warrant.
The invasion was even more severe for Lazoja, whose phone contained confidential attorney-client communications and photos of her without her hijab (Islamic head scarf). Lazoja wears the hijab as an expression of her Islamic faith, covering her hair in front of men who are not relatives. CBP’s retention of such photos only compounds the trauma of this warrantless invasion of her privacy. Additionally, CBP may share this same data with local and other federal law enforcement agencies.
CAIR’s mission is to protect civil rights, enhance understanding of Islam, promote justice, and empower American Muslims.
La misión de CAIR es proteger las libertades civiles, mejorar la comprensión del Islam, promover la justicia, y empoderar a los musulmanes en los Estados Unidos.