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.

A little more than a year ago, President Donald Trump publicly demanded that Pam Bondi, then the attorney general, find a crime to pin on former FBI Director James Comey. Trump's underlings have repeatedly tried to do that, first charging Comey with lying to Congress and then accusing him of threatening to assassinate the president. But the first indictment was dismissed because Trump had illegally appointed the prosecutor who obtained it, and the second was doomed right out of the gate because it aimed to punish constitutionally protected political speech.

The Justice Department's latest attempt to follow Trump's marching orders was revealed on Monday, when U.S. District Judge Trevor McFadden unsealed a "criminal information" that claims Comey illegally shared classified information with The New York Times on October 5, 2016. In an attempt to meet the statutory deadline for that charge, prosecutors filed it exactly 10 years after the alleged disclosure. But Comey's lawyers argue that federal law required the government to obtain a grand jury indictment within 10 years of the alleged offense, which it failed to do.

Whatever you make of that dispute, the president has made it clear that he wants to imprison Comey, a longtime nemesis because of his role in the "Russiagate hoax" during Trump's first term, and does not much care about exactly how that happens. Justice Department officials, meanwhile, are keen to pursue Trump's personal vendetta by using their prosecutorial powers as an instrument of his revenge.

The new case "would almost be funny if it weren't such an appalling abuse of the Department of Justice," Comey said in an online video on Monday. "I'm still innocent. I'm still not afraid of these people, and I still believe in the independent federal judiciary."

In the New York Times story at the center of the case, Charlie Savage and Nicole Perloth reported that Yahoo had adapted "a system intended to scan emails for child pornography" to comply with a Foreign Intelligence Surveillance Court order seeking "messages containing a computer 'signature' tied to the communications of a state-sponsored terrorist organization." Savage and Perloth cited "two government officials who spoke on the condition of anonymity."

Dustin Farahnak, a special U.S. attorney for the District of Columbia, says that story included "first-time disclosures of classified information not intended for the public domain." According to Farahnak, the government has evidence that Comey "directed staff" to discuss "specific accuracy concerns" about a prior Reuters report on the same subject with Savage. In the process of doing that, Farahnak says, those FBI officials "illegally transferred classified information."

Comey's attempt to set the record straight, according to Trump's henchmen, was a felony punishable by up to 10 years in prison under 18 USC 793(d), an Espionage Act provision that applies to an official who "willfully" shares "information relating to the national defense" with an unauthorized recipient when he "has reason to believe" it "could be used to the injury of the United States." Comey also faces a charge of conspiring to violate Section 793, which likewise carries a maximum 10-year sentence.

If Comey's alleged disclosure was such a grave crime, you might wonder, why did it take a decade to charge him? Because two prior investigations of the same incident concluded that criminal charges were not warranted.

Beginning in March 2017, John Durham, the U.S. attorney for the District of Connecticut, looked into the genesis of the Times article. The investigation found that James Baker, then the FBI's general counsel, was one of the anonymous sources. Baker said he had acted under instructions from FBI Chief of Staff James Rybacki, whom he understood to be conveying Comey's wishes. Durham's investigation included interviews, emails, phone records, and consideration of the relevant statutes. In December 2018, Comey's lawyers note, Durham "wrote a classified memorandum outlining the investigation and recommending 'NO prosecution for Baker or anyone else.'"

The following month, the U.S. Attorney's Office for the District of Columbia "opened an investigation into the same subject matter," Comey's lawyers say. That investigation "was closed without any charges in February 2020" after the office "declined to prosecute."

Given the outcomes of those two investigations, the decision to charge Comey now stinks of desperation to slake Trump's thirst for revenge. According to Comey's lawyers, the tardiness of the charges also fatally undermines the case.

Federal law generally requires that prosecutors file charges within five years of the alleged crime. But the Internal Security Act of 1950 made an exception for Section 793, saying "an indictment for any violation" of that provision "may be found at any time within ten years next after such violation shall have been committed."

The charges against Comey "should be dismissed as time barred," his lawyers argue: "Section 19 of the Internal Security Act gives the government an extended ten-year limitations period in which to charge Section 793 offenses. But as Section 19 unambiguously states, the government may invoke that extended period only by obtaining a grand jury indictment. A criminal information—which the government can issue unilaterally without grand jury involvement—does not suffice. Because the default five-year statute of limitations for federal felonies has long since elapsed on the alleged offenses, and the government's information does not meet the express statutory requirement for an extended ten-year limitations period, the information is untimely and must be dismissed."

Whichever side prevails on that issue, no one should have any illusions that the Justice Department is pursuing the mission suggested by its name. "It remains unclear what [McFadden] will do with the matter and whether DOJ will even be able to secure an indictment—as required by the Constitution," Cato Institute legal fellow Mike Fox says in an emailed press release. "Should the matter proceed, it is unequivocally clear that this case is a vindictive prosecution—a classic case of lawfare by a weaponized Justice Department."

The post The Justice Department's 3rd Attempt To Imprison James Comey Stinks of Trump's Desperation for Revenge appeared first on Reason Magazine.