A group of First Amendment attorneys sued the Trump administration on Monday over access to data showing how often U.S. citizens and visitors had their electronic devices searched and the contents catalogued at American border crossings.
The complaint by Columbia University’s Knight First Amendment Institute said the Department of Homeland Security hasn’t moved quickly on its request, which sought information about the number of people whose devices were searched at the border, complaints about the practice and government training materials.
The lawsuit marks an early challenge under the U.S. Freedom of Information Act for President Donald Trump, who has pushed for an aggressive border-security policy and tried twice to enact temporary travel restrictions from several majority-Muslim countries. Federal courts have so far stymied those efforts.
The Knight Institute had asked for a detailed number of travelers whose electronic devices, such as cell phones and computers, were searched and how often their data were shared. It also sought a breakdown of those device seizures by race, ethnicity, nationality and citizenship status, as well as details from a government database that tracks device searches.
The group said its March 15 records request concerned “the indiscriminate search of Americans’ electronic devices at the border” that raised key legal questions about free speech and privacy protections. It sued in federal court in Washington after arguing the government didn’t respond to a request to fast-track its FOIA inquiry, a practice allowed in some cases.
A spokeswoman for U.S. Immigration and Customs Enforcement, Sarah Rodriguez, said the agency doesn’t comment on pending litigation. Representatives from the Department of Homeland Security did not immediately return messages seeking comment Monday.
Border agents have wide latitude in searching a traveler’s electronic items at U.S. ports of entry, even if they are American citizens. Homeland Security officials have been known to ask that travelers unlock their phones or laptops; some agents have made digital copies of the devices’ contents.
Privacy advocates have criticized those as warrantless seizures, saying laptops and phones often contain troves of personal or sensitive information. The lawsuit cited a 2015 report in which border officers detained and interrogated a French-American photojournalist while searching his cell phone, including his text messages with a Syrian refugee source.
“People today store their most intimate information on their electronic devices, reflecting their thoughts, explorations, activities and associations,” the lawyers wrote. “Subjecting that information to unfettered government scrutiny invades the core of individual privacy and threatens free inquiry and expression.”
A criminal case before the 4th U.S. Circuit Court of Appeals in Richmond may determine the legality of certain electronic searches at the border.
Sen. Ron Wyden of Oregon, a leading Democrat in Congress on digital-privacy issues, sent a letter last month to Homeland Security Secretary John Kelly asking how often border agents demanded access to locked electronic devices, as well as under what circumstances U.S. travelers had to disclose social media and email passwords. His office said it has yet to receive a response.
The Knight lawsuit was filed in U.S. District Court for the District of Columbia, where judges have grappled with governmental delays in handing over records under FOIA. One case included a 2015 legal challenge by The Associated Press, under the Obama administration, over emails and other documents relating to former Secretary of State Hillary Clinton.
Under FOIA, citizens and foreigners can compel executive branch agencies to turn over copies of federal records for little or no cost. Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas.
During President Barack Obama’s final year, the U.S. government set records for outright denial of access to files, refusing to quickly consider requests described as especially newsworthy, and forcing people to pay for records who had asked the government to waive search and copy fees.