Customs and Border Protection (CBP) insists that it has the right to search Americans' private data without a warrant when entering the country. But ordered to explain one of these searches by a judge, the agency is now trying to wiggle out from under the microscope, invoking its own data privacy.

On Friday, Judge Leonie M. Brinkema in the Eastern District of Virginia ordered CBP to explain the seizure of a local psychiatric nurse's phone and laptop at Washington Dulles International Airport. CBP argued that the court should seal this information from both the public and the nurse himself in order to protect "privileged law enforcement information."

Brinkema initially agreed to let CBP file parts of its response "sealed and ex parte," meaning that neither the public nor the nurse would get to look at them. After reading the filings, the judge declared on Tuesday afternoon "that most of the redacted information is not privileged law enforcement information and should not be sealed." She gave CBP until Thursday at noon to object to unsealing the documents.

"Without knowing what happened, we cannot assess the extent of CBP's violation of our clients' rights. This raises serious concerns about government improperly invoking privilege to cover up wrongdoing," says Jenin Younes, a civil libertarian lawyer and president of the Arab-American Anti-Discrimination Committee, who is representing the nurse. "The court was right to unseal most of the redacted material so we can assess the extent to which the government behavior was improper."

Younes has stacked up a series of victories against CBP's electronic searches. Over the past few months, she sued on behalf of lawyer Jalal "Jay" Shehadeh and (non-Arab) journalist Max Blumenthal, both of whom had their phones seized at the airport by CBP without explanation. CBP tried to preempt a legal battle by giving their phones back almost immediately. Younes is still pressing to get information about what happened to their data.

Although CBP policy states that the agency will delete all data within 21 days unless there is "probable cause to believe the information contains digital contraband or evidence of a violation of law that CBP is authorized to enforce or administer," a 2018 lawsuit seemed to show that CBP was holding onto the data until someone bothered to demand its return.

Psychiatric nurse Muhammad Numaan Imam's case started similarly to Shehadeh's and Blumenthal's cases. CBP agents demanded to open his phone at the airport without explanation. He refused, arguing that patient emails and case-management software were protected by privacy laws. CBP then confiscated all of his and his wife Khadijah Mansoor's electronics. Almost immediately after Younes filed the suit on his behalf, CBP tried to argue that the case was moot because it was giving back the phone.

But Brinkema immediately agreed with Imam and Mansoor's "legitimate concerns about what was done with their electronic devices," ordering CBP to "explain why the devices of both plaintiffs were seized" and to provide sworn statements from "each person who handled any of the devices" describing exactly what was done to them.

On Monday night, the court published heavily redacted declarations from CBP Assistant Port Director Lauren Colgan, Department of Homeland Security (DHS) technician Caige McCabe, and CBP technician Ashlie Fisch.

"Mr. Imam and Ms. Mansoor presented valid, un-expired travel documents to CBP Officers in the primary inspection and were referred for secondary inspection," Colgan's declaration states. The next few sentences are blacked out. The declaration then recounts the couple explaining their early return from their anniversary vacation in Turkey and states that the CBP officer asked to open their electronics, without explaining why.

"Because of Mr. Imam's and Ms. Mansoor's refusal to provide access to their electronic devices, CBP informed Mr. Imam and Ms. Mansoor their devices would be detained to continue the border search," Colgan continues, noting that Port Director Christine Waugh signed off on holding the devices for more than five days, as CBP policy requires.

On October 17, a day after CBP seized the phones, it asked DHS headquarters for "technical assistance" with Imam's devices according to McCabe. "My examination of Mr. Imam's phone was limited to device specifications and high-level file-system structure," he states in the declaration. The next few sentences are blacked out. "I did not access or view the contents of Mr. Imam's laptop," McCabe continues. The next few sentences after that are also blacked out. "I did not access any medical information" on either the phone or laptop, McCabe concludes, stating that the devices were in his custody until he handed them back to CBP on October 21.

Fisch then received Imam's devices at CBP Laboratories and Scientific Services. Everything of substance in her declaration is redacted, beyond taking the devices on October 21 and sending them back to Washington Dulles Airport the next day. There is no unredacted explanation of what happened to Mansoor's devices.

Brinkema argued in her Tuesday order that only two sentences, both from Colgan's declaration, were legitimately blacked out. "Accordingly, the Court will unseal all other redacted information in the Declarations unless the defendants can show good cause why such information should not be unsealed," she wrote.

U.S. law gives border officers much wider authority to search for contraband in situations where normal police would need a warrant or probable cause under the Fourth Amendment. CBP argues that its powers extend to searching and seizing travelers' electronics without any explanation at all. Courts have given contradictory rulings on how far those searches can go, and the Supreme Court hasn't weighed in yet, leaving a gray area that CBP is happy to take advantage of.

Imam's case has resulted in "the most detailed explanation of what the government did with our clients' electronic devices—or it would be if so much wasn't redacted," Younes tells Reason. "I look forward to seeing the unredacted versions."

The post CBP Really Doesn't Want To Reveal What It Does to Americans' Phones appeared first on Reason Magazine.

Do you have a right to privacy on public roads? Hoover fellow and Stanford legal scholar Orin Kerr joins me in this episode to discuss Flock cameras, the networked license plate readers fueling debate over police surveillance. We discuss how the Fourth Amendment applies to tracking people's movements; whether police should need a warrant to search camera databases; how to balance investigative benefits with the potential for abuse; and what we still don't know about these tools' effectiveness in protecting public safety.

Jane Bambauer, my regular cohost, couldn't join us this episode, but will be back as usual in the next one. And also check out our past episodes:

Also check out our past episodes:

• Can the President Kick Reporters out of the White House?
• Spoiler Alert: Can You Get Sued For Revealing A Plot Point?
• The Process Is The Punishment: ABC v. FCC with Stuart Benjamin
• Can AI Libel You? The Robby Starbuck Case
• Shrexting: Free Speech or Criminal Harassment?
• The First Amendment and Privacy Rights
• 'Defamacast' and More: How American Defamation Law Works
• Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy
• Equal Time, Stephen Colbert, and the Future of Political Broadcasting
• Student Speech, Threats, and the First Amendment
• Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
• 2025: The Year In Free Speech
• Does the First Amendment Protect Supposedly "Addictive" Algorithms?
• Defamation Law in the Age of AI with Lyrissa Lidsky
• Free Speech and the Future of Legal Education
• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• Kimmel, the FCC, and the Government's Power Over Broadcast Speech
• A Conversation with FIRE's Greg Lukianoff
• A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard v. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

The post Free Speech Unmuted: Flock Cameras and the Fourth Amendment, with Orin Kerr appeared first on Reason Magazine.

One of the more interesting developments at the U.S. Supreme Court in recent years has been the rise of a kind of sporadic alliance in defense of civil liberties between Justices Sonia Sotomayor and Neil Gorsuch.

In 2018, for example, Gorsuch, joined by Sotomayor, blasted the Supreme Court for refusing to even hear arguments in Stuart v. Alabama, an important case about forensic evidence, criminal trials, and the Sixth Amendment right to cross-examine one's accusers.

Similarly, in United States v. Davis (2019), Sotomayor joined Gorsuch's majority opinion striking down a federal law that called for enhanced sentencing when a gun was used in connection with certain federal crimes because the law at issue was too imprecisely written to pass constitutional muster. "When Congress passes a vague law," Gorsuch wrote, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Gorsuch and Sotomayor have also been on the same page in a number of Fourth Amendment cases, though Sotomayor's overall Fourth Amendment record is arguably stronger than Gorsuch's. In Torres v. Madrid (2021), for instance, the Supreme Court held that when the police shoot a fleeing suspect, it still counts as a "seizure" for Fourth Amendment purposes even if the suspect kept on the move after being shot. "The application of physical force to the body with the intent to restrain is a seizure," the Court held, "even if the person does not submit and is not subdued." Sotomayor joined that pro-civil liberties decision; Gorsuch, along with Justices Clarence Thomas and Samuel Alito, sided with the officers and voted in dissent.

Fortunately, the Gorsuch-Sotomayor band was back together last week to make some noise in support of the Bill of Rights in a dispute that pitted property rights against police powers. As Reason's Billy Binion reported, the Supreme Court declined to hear a case challenging a lower court's "categorical rule" that "property destroyed in the exercise of [a state's] 'police power' is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner."

Sotomayor, joined by Gorsuch, strongly implied that she thought the lower court's rule was unconstitutional, though she accepted that "further percolation" on the issue was needed before the Court should step in. "Where, as here, a person alleges a 'classic taking in which the government directly appropriates private property for its own use' or to pay an outstanding debt, like a tax lien," Sotomayor wrote, "the talismanic invocation of the State's 'law enforcement authority,' may be insufficient to avoid the requirement of just compensation." (Citations omitted.) Sotomayor then urged the lower courts that are "considering this issue to take care that due deference to state police powers does not eclipse constitutional rights."

Just as Gorsuch's Fourth Amendment record has its blemishes, Sotomayor's record on property rights has also been less than impressive at times. So it is doubly welcome to see these two justices back in the trenches together on this particular civil liberties front.

Elsewhere in the Law

Writing at SCOTUSblog, Anastasia Boden, a senior attorney at the Pacific Legal Foundation, has an interesting article about the Supreme Court's landmark 1926 decision in Euclid v. Ambler, in which, as Boden put it, the Court ruled in favor of a town's "power to pass comprehensive zoning, and against a local developer who had argued the town's plan exceeded the city's police power and destroyed the property's value." In effect, the Court's ruling was "the birth of modern zoning."

One of the things that has long fascinated me about Euclid v. Ambler is the fact that the opinion was authored by Justice George Sutherland, who is probably best remembered today for his role as a leading judicial foe of President Franklin Roosevelt's New Deal. In Euclid v. Ambler, however, Sutherland endorsed a view of regulatory authority that has been celebrated by liberal academics as "a model of pragmatic and well-balanced Progressive jurisprudence."

I suppose we might call it an irony of legal history: The intellectual leader of the Supreme Court's anti–New Deal bloc actually left a greater mark on the law by shoring up the immense power of city planners.

The post Gorsuch and Sotomayor Unite in Another Civil Liberties Case appeared first on Reason Magazine.