Filmmaker restrained, phone seized at U.S.-Canada border crossing

New York-based independent filmmaker Akram Shibly was stopped by border authorities and his phone searched for the second time in four days when returning to the United States from Canada on Jan. 4, 2017, according to a lawsuit filed on behalf of Shibly and 10 others, including three journalists.

Shibly was first stopped for secondary screening and his cellphone searched when returning from a work trip to Toronto on Jan. 1, the complaint stated.

Three days later, Shibly was again returning home from Toronto to Buffalo, New York, via the Lewiston-Queenston Bridge. In the secondary screening area, a U.S. Customs and Border Protection officer again ordered him to hand over his phone. Shibly refused.

The complaint alleged that three officers physically restrained him in order to seize the device:

“One of the officers squeezed his hand around Mr. Shibly’s throat, causing Mr. Shibly to suffer great pain and fear of death,” the lawsuit stated. “Another officer restrained Mr. Shibly’s legs, and a third officer pulled Mr. Shibly’s phone from his pocket.”

In a 2019 affidavit, Shibly said that the screen lock on his cellphone was still disengaged as a result of the first stop, and the device was taken to a separate room and presumably searched for 15-20 minutes.

He described both 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.”

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.

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 EFF 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.