An American Muslim woman who two months ago asked a federal judge to compel border officials to erase data copied from her iPhone 6S Plus has settled her lawsuit with the government—federal authorities have now agreed to delete the seized data.
The case, Lazoja v. Nielsen, involves what's called a Rule 41(g) Motion, otherwise known as a "Motion to Return Property."
Normally, this rule is invoked for tangible items seized as part of a criminal investigation, not for digital data that can easily be copied, bit for bit. Here, the plaintiff, Rejhane Lazoja, asked the judge to return data that she already has—after all, federal authorities eventually returned her iPhone after 90 days, fully intact.
Lazoja's attorney, Albert Fox Cahn of the Council on American-Islamic Relations (CAIR), told Ars that his client is pleased with how things turned out. He went on:
For us, it's a really exciting outcome, because this novel litigation approach worked and would get us a resolution really quickly, and it gave us a way to get our client's data deleted. We were prepared for much more pushback. It's incredibly useful to have this tool in our toolkit for when phones are taken in the future. I can't see any reason why this couldn't be done whenever another traveler is facing this sort of phone seizure.
As Ars has reported previously, the government claims that it has the authority to search and seize someone's device without a warrant—otherwise needed in the interior of the country. Federal authorities rely on what's known as the "border doctrine." This is the controversial but standing legal idea that warrants are not required to conduct a search at the border. The theory has been generally recognized by courts, even in recent years.
For its part, Customs and Border Protection maintains that such digital searches are exceedingly rare.
According to the agency's most recent figures (Fiscal Year 2017), out of 397 million international travelers, only 30,200 digital border searches were conducted—or approximately 0.007 percent. This is up from 0.005 percent in Fiscal Year 2016.
CBP has yet to fully explain why there has been this 50 percent increase year-over-year.
"The need for border searches of electronic devices is driven by CBP's mission to protect the American people and enforce the nation's laws in this digital age," the agency wrote in January 2018.
However, Cahn and other attorneys disagree with the government's interpretation of the law.
"The government continues to maintain their line that they can take anybody's phone at the border at anytime for any reason, and we think that's unconstitutional," he said.
"I continue to believe that it does take a warrant to justify this highly intrusive search."
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Ars Technica
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