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Alasaad v. Nielsen

United States District Court, D. Massachusetts

May 10, 2018

GHASSAN ALASAAD, NADIA ALASAAD, SUHAIB ALLABABIDI, SIDD BIKKANNAVAR, JÉRÉMIE DUPIN, AARON GACH, ISMAIL ABDEL-RASOUL a/k/a ISMA'IL KUSHKUSH, DIANE MAYE, ZAINAB MERCHANT, MOHAMMED AKRAM SHIBLY and MATTHEW WRIGHT, Plaintiffs,
v.
KIRSTJEN NIELSEN, 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.

          ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi (“Allababidi”), Sidd Bikkannavar (“Bikkannavar”), Jérémie Dupin (“Dupin”), Aaron Gach (“Gach”), Ismail Abdel-Rasoul a/k/a Isma'il Kushkush (“Kushkush”), Diane Maye (“Maye”), Zainab Merchant (“Merchant”), Mohammed Akram Shibly (“Shibly”) and Matthew Wright (“Wright”) (collectively, “Plaintiffs”) bring this suit against the following persons in their official capacities: Kirstjen Nielsen (“Nielsen”), Secretary of the U.S. Department of Homeland Security (“DHS”), [1]Kevin McAleenan (“McAleenan”), Acting Commissioner of U.S. Customs and Border Protection (“CBP”), and Thomas Homan (“Homan”), Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”). D. 7 ¶¶ 14-26. Plaintiffs, ten U.S. citizens and one lawful permanent resident, allege that Defendants' conduct-searching Plaintiffs' electronic devices at ports of entry to the United States and, in some instances, confiscating the electronic devices being searched, pursuant to CBP and ICE policies-violates the Fourth Amendment (Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 ¶¶ 1-10, 168-73. They seek declaratory and injunctive relief. D. 7 at 40-42. Defendants have now moved to dismiss. D. 14. For the reasons stated below, the Court DENIES Defendants' motion to dismiss.

         II. Standard of Review

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). The Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). Plaintiffs “need not demonstrate that [they are] likely to prevail” at this stage, García-Catalán, 734 F.3d at 102, but they must show that the combined allegations state “a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

         III. Factual Background

         Unless otherwise noted, the following facts are drawn from Plaintiffs' amended complaint and accepted as true for the purposes of considering the motion to dismiss. Plaintiffs are individuals whose electronic devices have been searched by federal officers at U.S. ports of entry on at least one occasion, and who “regularly travel outside the country with their electronic devices and intend to continue doing so.” D. 7 ¶ 2. Defendants are the heads of DHS and two of its units, CBP and ICE. D. 7 ¶ 3.

         In the United States, ninety-five percent of adults own a cell phone, seventy-seven percent own a smart phone and over fifty percent own a tablet computer. D. 7 ¶ 27. “Electronic devices are often essential to people's work, ” as well as “communication . . . navigation, shopping, banking, entertainment, news, and photography, among other functions.” D. 7 ¶¶ 36, 27. “Laptops sold in 2017 can store up to two terabytes” of data, tablet computers can hold up to a terabyte and “smartphones can store hundreds of gigabytes of data.” D. 7 ¶ 30. This storage capacity “can be the equivalent of hours of video files, thousands of pictures, or millions of pages of text.” Id. Electronic devices like these may also be used to access cloud storage-“data located on remote servers”-as well as email and social media applications. D. 7 ¶¶ 30, 32. Data stored on electronic devices includes “personal, expressive, and associational information” like communications, location history, contact lists, internet browsing history, photos, calendars and notes. D. 7 ¶ 31. Additionally, electronic devices store “historical location information, so-called ‘deleted' items that actually remain in digital storage, ” “metadata about digital files” and “time stamps or GPS coordinates created automatically by software on the device.” D. 7 ¶ 33.

         According to public CBP data, “CBP conducted 14, 993 electronic device searches in the first half of fiscal year 2017, ” putting CBP “on track to conduct approximately 30, 000 searches this fiscal year, compared to just 8, 503 searches in fiscal year 2015.” D. 7 ¶ 38.[2] Searches generally come in two forms: (1) “manual” searches, during which “officers review the contents of the device by interacting with it as an ordinary user would, through its keyboard, mouse, or touchscreen interfaces”; and (2) “forensic” searches, during which officers “use sophisticated tools, such as software programs or specialized equipment, to evaluate information contained on a device, ” typically starting by making a copy of the device's data. D. 7 ¶¶ 39, 40, 43. Forensic searches “can capture all active files, deleted files, files in allocated and unallocated storage space, metadata . . . password-protected or encrypted data, and log-in credentials and keys for cloud accounts.” D. 7 ¶ 43. On occasion, officers confiscate travelers' devices for prolonged periods. D. 7 ¶¶ 50-56.

         CBP and ICE have policies that authorize and guide agents' search of travelers' electronic devices at border locations. D. 7 ¶¶ 8, 57-61. Both units' policies permit searches of electronic devices without a showing of probable cause or issuance of a search warrant. D. 7 ¶¶ 9, 57.

         A. The Search Policies

         The CBP and ICE electronic device search policies detailed below are matters of public record, published by DHS and available to the public and, accordingly, may be considered by the Court for the purposes of this motion. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co, 267 F.3d 30, 33 (1st Cir. 2001). Moreover, neither party challenges that the Court may take judicial notice of these policies, but rather, request that the Court does so. See D. 18; D. 19 at 13 n.1. The Court, therefore, takes judicial notice of the following policies: ICE's directive number 7-6.1, issued August 18, 2009, titled “Border Searches of Electronic Devices” (“ICE Policy”); CBP directive number 3340-049, issued August 20, 2009, titled “Border Searches of Electronic Devices Containing Information” (“2009 CBP Policy”);[3] and CBP's directive number 3340-049A, issued January 4, 2018, superseding the 2009 CBP Policy, titled “Border Search of Electronic Devices” (“2018 CBP Policy”), D. 18-1.

         1. The ICE Policy

         The ICE Policy establishes procedures “to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border” and “applies to . . . all persons arriving in, departing from, or transitioning through the United States.” ICE Pol. ¶ 1.1. It states that “[a]ll electronic devices crossing U.S. borders are subject to border search, ” defining “electronic devices” as “[a]ny item that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music players, and any other electronic or digital devices.” ICE Pol. ¶¶ 8.6.1, 5.2.

         Under the ICE Policy, agents are authorized to search electronic devices “with or without individualized suspicion.” D. 7 ¶ 58(b); ICE Pol. ¶ 6.1. “To the extent practicable, border searches should be conducted in the presence of, or with the knowledge of, the traveler.” ICE Pol. ¶ 8.1.2. The traveler's consent, however, is not needed for search. ICE Pol. ¶ 8.1.3.

         No individualized suspicion is required for officers to confiscate devices or “copies of information therefrom” for “further review” on- or off-site. ICE Pol. ¶¶ 6.1, 8.1.4; see D. 7 ¶ 61(b). Additionally, “[a]ssistance to complete a border search may be sought from other Federal agencies and non-Federal entities, on a case by case basis, as appropriate, ” for technical or subject matter assistance. ICE Pol. ¶¶ 6.1, 8.1.4, 8.4. ICE agents “may create and transmit copies of information” when seeking assistance. ICE Pol. ¶ 8.4.4. Such assistance “is to be accomplished within a reasonable period of time.” ICE Pol. ¶ 8.4.5.a. In general, once ICE confiscates a device, ICE may retain it for “a reasonable time given the facts and circumstances of the particular search, ” generally thirty days, and supervisors may extend this period under “circumstances . . . that warrant more time.” ICE Pol. ¶ 8.3.1; D. 7 ¶ 61(c).

         Regarding written records of searches, “[n]othing in this policy limits the authority of Special Agents to make written notes or reports or to document impressions relating to a border encounter in ICE's paper or electronic recordkeeping systems.” ICE Pol. ¶ 6.3. If ICE confiscates a device, agents must “provide the traveler with a copy of the applicable chain of custody form or other appropriate documentation.” ICE Pol. ¶ 8.2.4. ICE agents may seize and retain devices or copies of information contained therein if they determine there is probable cause of unlawful activity or, to “the extent authorized by law, ” information “relevant to immigration, customs, and other law enforcement matters.” ICE Pol. ¶¶ 8.5.1.a-b. Copies may be shared with federal, state, local and foreign law enforcement agencies. ICE Pol. ¶ 8.5.1.c.

         The ICE Policy states that copies of information “determined to be of no relevance to ICE will be destroyed . . . . within seven business days after conclusion of the border search unless circumstances require additional time” and “no later than 21 calendar days after conclusion of the border search.” ICE Pol. ¶ 8.5.1.e. Assisting agencies must return devices and data to ICE or “certify to ICE that any copies in its possession have been destroyed” unless they have the independent legal authority to retain copies. ICE Pol. ¶ 8.5.2. Non-federal entities must return all copies of information “as expeditiously as possible.” ICE Pol. ¶ 8.5.3.

         2. The CBP Policies

         Given that Plaintiffs seek injunctive, prospective relief, the Court relies primarily upon the 2018 CBP Policy, as it supersedes the 2009 CBP Policy. See D. 18-1 at 2. For the purposes of any relief sought to address past harms, however, the Court briefly outlines the 2009 CBP Policy below to the extent it differs from the 2018 CBP Policy.

         a) The 2018 CBP Policy

         The 2018 CBP Policy applies to searches performed by CBP officers, not ICE or Homeland Security Investigations (“HSI”) agents. D. 18-1 ¶ 2.7. It defines “electronic device” as “[a]ny device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players.” D. 18-1 ¶ 3.2.

         The 2018 CBP Policy divides electronic device searches into two categories: the basic search and the advanced search. D. 18-1 ¶ 5.1. An “advanced search” is defined as “any search in which an Officer connects external equipment . . . to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” D. 18-1 ¶ 5.1.4. It requires “reasonable suspicion of activity in violation of the laws enforced or administered by CBP” or a “national security concern, ” as well as “supervisory approval, ” to justify the search. Id. A supervisor must also be present during the search. D. 18-1 ¶ 5.1.5. A “basic search, ” by contrast, is “[a]ny border search of an electronic device that is not an advanced search.” D. 18-1 ¶ 5.1.3. An officer may conduct such a search “with or without suspicion.” Id.

         All electronic device searches are documented. D. 18-1 ¶ 5.1.5. Additionally, all searches “should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, officer safety, or other operational considerations that make it inappropriate to permit the individual to remain present.” D. 18-1 ¶ 5.1.6. Permission to remain present, however, “does not necessarily mean that the individual shall observe the search itself.” Id.

         The 2018 CBP Policy authorizes “examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications.” D. 18-1 ¶ 5.1.2. The policy prohibits an officer's intentional search of information stored remotely, directing officers to request that travelers “disable connectivity to any network” prior to search. Id. According to the policy, “[t]ravelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents, ” and “[p]asscodes or other means of access may be requested and retained as needed to facilitate” the search. D. 18-1 ¶ 5.3.1. If an officer cannot complete an inspection because of passcode or encryption protection, the officer may “detain the device pending a determination as to its admissibility, exclusion, or other disposition” or “seek technical assistance” or “use external equipment” to access the device. D. 18-1 ¶¶ 5.3.3-4.

         The 2018 CBP Policy permits officers to “detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time, ” which “ordinarily should not exceed five (5) days, ” on- or off-site, but may be extended with supervisor approval. D. 18-1 ¶ 5.4.1. If a device is detained, the officer must issue a custody receipt to the traveler prior to the traveler's departure, D. 18-1 ¶ 5.4.1.4, and all transfers of custody must be recorded, D. 18-1 ¶¶ 5.4.2.3, 5.6.2. CBP officers may make copies of electronic devices when seeking technical assistance-e.g., device access or translation assistance-or subject matter assistance “with reasonable suspicion or national security concern.” D. 18-1 ¶¶ 5.4.2.1-2. Unless assistance is sought within CBP or from ICE, requests for assistance require supervisory approval and must be documented. D. 18-1 ¶ 5.4.2.3.

         If after a review of the electronic device an officer determines there is probable cause to believe it contains evidence of illegal activity, officers “may seize and retain” the device. D. 18-1 ¶ 5.5.1.1. “Without probable cause . . . CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the applicable system of records notice.” D. 18-1 ¶ 5.5.1.2. The 2018 CBP Policy does not limit CBP's authority to share information from these devices, “retained in accordance with this Directive, with federal, state, local, and foreign law enforcement agencies.” D. 18-1 ¶ 5.5.1.3.

         If the review does not give rise to “probable cause to seize the device or the information contained therein, any copies of the information held by CBP must be destroyed, and any electronic device must be returned” within seven days of such determination, barring special circumstances. D. 18-1 ¶ 5.4.1.2. Additionally, “[p]asscodes and other means of access obtained during the course of a border inspection . . . will be deleted or destroyed when no longer needed to facilitate the search.” D. 18-1 ¶ 5.3.2. To the extent any assistance was provided outside of CBP or ICE, the assisting agency or entity “should destroy all copies of the information conveyed.” D. 18-1 ¶ 5.5.2.2. “The destruction shall be noted in appropriate CBP systems.” D. 18-1 ¶ 5.4.1.2.

         b) The 2009 CBP Policy

         Under the 2009 CBP Policy, which was in force at the time of Plaintiffs' alleged border device searches, certain policies differed. The 2009 CBP Policy did not distinguish between a basic and advanced search and no level of suspicion was required for either. D. 7 ¶ 61(a); 2009 CBP Pol. ¶ 5.1.2. Likewise, the earlier policy permitted confiscation of electronic devices for on-or off-site search without any level of suspicion. D. 7 ¶ 61(a); 2009 CBP Pol. ¶ 5.3.1.

         B. The Plaintiffs

         1. The Alasaads

         Ghassan and Nadia Alasaad are U.S. citizens and Massachusetts residents whose two smartphones were searched and retained when they were crossing the border in July 2017 from Canada to Vermont. D. 7 ¶¶ 14, 62, 70. They were traveling with their eleven-year-old daughter, who was “ill and had a high fever.” D. 7 ¶ 63. When asked, a CBP supervisor told them they were being detained and searched because he “simply felt like ordering a secondary inspection.” D. 7 ¶ 66. In a secondary inspection room, a CBP officer manually searched Ghassan's smartphone. D. 7 ¶ 65. Several hours later, a CBP officer ordered Nadia to provide the password to her locked phone. D. 7 ¶ 67. After the officer told them that if Nadia did not disclose her password, the “phone would be confiscated, ” she wrote down the password. D. 7 ¶ 68. Nadia “wears a headscarf in public in accordance with her religious beliefs” and told the officer that a male officer could not search her phone because it contained photos of her without a headscarf and the officer responded “that it would take two hours for a female officer to arrive, and then more time to search the phone.” D. 7 ¶¶ 67, 70. After approximately six hours of detention, the Alasaads departed without their two phones. D. 7 ¶¶ 70-71. The phones were returned fifteen days later. D. 7 ¶ 72. CBP's search and seizure of Ghassan's phone “damaged its functionality.” Id.

         One month later, the Alasaads' daughter's locked smartphone was searched when Nadia and her daughter arrived in New York from Morocco “where they had been visiting family.” D. 7 ¶¶ 73, 75. CBP officers directed the two to a secondary inspection area. D. 7 ¶ 74. There, Nadia informed the officers that she had lost her phone, but when officers searched Nadia's purse, they found her daughter's smartphone. Id. The officers directed the Alasaads' daughter to write down her password, and after she did, an officer “took the phone to another room for approximately 15 minutes.” D. 7 ¶ 75.

         2. Allababidi

         In January 2017, Allababidi had his devices searched and confiscated by CBP officers when returning from a business trip on a flight from Dubai to Dallas. D. 7 ¶¶ 77-80. A U.S. citizen who lives in Texas and owns and operates a business that sells security technology, Allababidi carried a locked smartphone “that he used regularly for both personal and business matters” in the U.S. and an unlocked smartphone that “enabled him to communicate easily while overseas.” D. 7 ¶¶ 15, 77. A CBP officer directed Allababidi to a secondary inspection area, where he observed an officer “seize and manually search his unlocked phone for at least 20 minutes.” D. 7 ¶ 78. The officer ordered Allababidi to unlock his other phone, and when he declined, officers confiscated both smartphones. D. 7 ¶ 79. One phone was returned two months later, and the other had not been returned at the time the amended complaint was filed. D. 7 ¶ 80.

         3. Bikkannavar

         Bikkannavar, a U.S. citizen residing in California, returned from a vacation in Chile with a locked smartphone owned by his employer, NASA's Jet Propulsion Laboratory, which he used for work and personal matters. D. 7 ¶¶ 16, 81. CBP officers escorted Bikkannavar to a secondary inspection area, where an officer gave him a CBP form that Bikkannavar understood to “mean that CBP was asserting a legal prerogative to search the contents of his phone.” D. 7 ¶ 82. After initially declining to do so, Bikkannavar disclosed his password, which an officer wrote down and took, with Bikkannavar's phone, to another room. D. 7 ¶¶ 82-83. The officer returned about thirty minutes later, informed Bikkannavar that officers had used “algorithms” to search its contents, and returned the phone. D. 7 ¶ 84.

         4. Dupin

         Dupin, a journalist, citizen of Haiti and legal permanent resident of the U.S. living in Massachusetts, was subject to two device searches in December 2016. D. 7 ¶¶ 17, 86-97. In the first, Dupin connected in Miami, Florida, en route from Port-au-Prince, Haiti to Montreal, Quebec, where he was visiting his daughter to take her by bus to New York City. D. 7 ¶ 86. A CBP officer escorted Dupin to a secondary inspection area in Miami, where he waited for over two hours before being escorted to a smaller room for questioning “about his work as a journalist, including the names of the organizations and specific individuals within those organizations for whom he had worked” by three CBP officers. D. 7 ¶ 87. During questioning, officers seized Dupin's locked smartphone and ordered him to provide a password, which he did. D. 7 ¶ 88. An officer searched Dupin's phone for “about two hours” during which, at certain points, the officer took Dupin's phone “into another room, ” returning “periodically to ask Mr. Dupin questions about the contents of the phone.” D. 7 ¶ 90. The officers then returned the phone and permitted him to leave. D. 7 ¶ 91.

         The next day, December 23, 2016, Dupin and his seven-year-old daughter traveled by bus from Montreal to New York. D. 7 ¶ 92. At the customs checkpoint “near midnight, ” a CBP officer directed them to a secondary inspection area, where officers asked “some of the same questions officers had asked in Miami” as his daughter was “[a]sleep in his lap.” D. 7 ¶¶ 93, 95(d). The officers seized his phone, obtained his password, and took the “phone into another room for about four hours, ” again returning periodically with specific questions about the phone's contents. D. 7 ¶¶ 94, 96. “After approximately seven hours of detention, ” on the morning of December 24, 2016, officers returned the phone to Dupin and told him that he and his daughter could leave. D. 7 ¶ 97.

         5. Gach

         Gach, an artist and U.S. citizen who lives in California, had his locked smartphone searched on arrival in San Francisco from Belgium, “where he had participated in an art exhibition displaying works that could be considered critical of the government.” D. 7 ¶ 18, 98-104. He was questioned “about his work as an artist and the exhibition in Belgium” in a secondary inspection area, and, when asked for his phone, told the officers that he did not want the officers to search it. D. 7 ¶ 99. After “[t]he officers told [him]that his phone would be held for an indeterminate amount of time if he did not disclose his password, ” Gach entered his password and handed the officers his unlocked phone. D. 7 ¶ 100. The officers searched Gach's phone “behind a dividing wall for approximately 10 minutes” and then returned the phone to him and permitted him to leave. D. 7 ¶¶ 102-04.

         6. Kushkush

         Kushkush-a U.S. citizen and freelance journalist from Virginia-had his devices searched on three occasions between January 2016 and July 2017. D. 7 ¶¶ 19, 105-19. First, in New York, Kushkush, while returning from conducting research for a master's thesis in Stockholm, Sweden, was questioned by CBP officers, who also seized his locked laptop and two unlocked cell phones. D. 7 ¶¶ 105-07. ...


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