Filmmaker forced to unlock phone at U.S.-Canada border crossing

New York-based independent filmmaker Akram Shibly was stopped by border authorities and his phone searched when reentering the United States from Canada on Jan. 1, 2017, according to a lawsuit filed on behalf of Shibly and 10 others, including three journalists.

According to the lawsuit, Shibly was returning from a work trip in Toronto via the Lewiston-Queenston Bridge in New York when a U.S. Customs and Border Protection officer directed him to a separate area. There officers directed him to fill out a form that included a request for his cellphone password. Shibly initially left the line blank.

“A CBP officer examined the completed form and ordered Mr. Shibly to provide his password. Mr. Shibly told the officer that he did not feel comfortable doing so,” the complaint stated. “In an accusatory manner, the officer told Mr. Shibly that if he had nothing to hide, then he should unlock his phone.”

Feeling he had no other choice, the lawsuit stated that Shibly unlocked and disengaged the screen lock, also disclosing his social media handles when asked. CBP officers then left the room with the device for at least an hour.

Shibly was stopped again at the same border crossing again three days later, where his phone was forcibly taken from him.

The ACLU and others filed the lawsuit in September 2017 against the Department of Homeland Security, U.S. Immigration and Customs Enforcement and CBP, arguing that the plaintiff’s First and Fourth Amendment rights were violated. In a 2019 affidavit, Shibly described the searches as an invasion of his privacy.

“I felt abused and unwelcome returning home,” Shibly said. “I felt like CBP invaded my personal and professional life, and to this day I am still traumatized by these invasive practices.”

On Nov. 12, 2019, a federal judge in Boston ruled in favor of Shibly and the other plaintiffs, finding that warrantless searches of electronic devices at the border violate the Fourth Amendment, The Associated Press reported.

But the U.S. Court of Appeals for the First District overturned the federal district court's ruling restricting device searches and, in a judgment filed Feb. 9, 2021, instead denied the plaintiffs claims.

“We find no violations of either the Fourth Amendment or the First Amendment,” Circuit Judge Sandra Lynch wrote in the court’s findings. The ruling held that advanced searches of electronic devices at the border do not require a warrant or probable cause, and that basic border searches of electronic devices are routine searches that may be performed without reasonable suspicion.

The ACLU and the Electronic Frontier Foundation filed a motion on April 23 petitioning the Supreme Court to hear the case, but the court declined in June, effectively ending the lawsuit.

“Nobody should fear having border agents rummage through their most private information for no good reason,” Nathan Freed Wessler, deputy director of the ACLU’s speech, privacy and technology project, said in a statement to Reuters. Wessler added that the Supreme Court will still need to address the privacy issues raised by warrantless searches at the border soon, given disagreements among lower courts.