- Date of Incident
- September 16, 2017
- Zainab Merchant
- Case number
- Case Status
- Type of case
Supreme Court declines to hear case on warrantless electronic device searches at border
On June 28, 2021, the Supreme Court declined to hear a case filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of Zainab Merchant and others challenging the practice of warrantless searches of electronic devices at the border.
Both the plaintiffs and the government defendants appealed the federal district court’s November 2019 ruling that any “non-cursory” search of an electronic device at the border requires reasonable suspicion that the device contains illicit materials or contraband, but that warrants supported by probable cause were not necessary.
In a judgment filed on Feb. 9, 2021, the U.S. Court of Appeals for the First District overturned the federal district court’s ruling restricting device searches and 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. “We join the Eleventh Circuit in holding that advanced searches of electronic devices at the border do not require a warrant or probable cause. We also join the Ninth and eleventh Circuits in holding that basic border searches of electronic devices are routine searches that may be performed without reasonable suspicion.”
The ACLU and EFF filed a motion petitioning the Supreme Court to hear the case on April 23, but the court declined in June, effectively closing the case.
Federal court finds warrantless searches of devices violates Fourth Amendment of travelers
On Nov. 12, 2019, a federal judge in Boston ruled in favor of the 11 plaintiffs represented by the ACLU and EFF in a lawsuit against the DHS, U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection. The court found that warrantless searches of electronic devices at the border violate the Fourth Amendment, the Associated Press reported. Moving forward, border officers must now demonstrate individualized suspicion before searching a traveler’s device.
Three journalists were among the plaintiffs, including Zainab Merchant. The U.S. Press Freedom Tracker also documented border stops experienced by plaintiff Isma’il Kushkush in January and July 2017.
In a press release from EFF, ACLU attorney Esha Bhandari said, “This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year.”
“By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel,” Bhandari said.
Zainab Merchant, a graduate student at Harvard University and founder of online publication Zainab Rights, was stopped for secondary screening by Customs and Border Protection officers in Orlando, Florida, on Sept. 16, 2017.
The American Civil Liberties Union and the Electronic Frontier Foundation filed a complaint with the Department of Homeland Security on Merchant’s behalf. According to the organizations, Merchant was returning from a personal trip to Morocco with her husband when they were both redirected to secondary screening.
As was the case with Merchant’s previous stop catalogued by the U.S. Press Freedom Tracker, the officer who questioned her asked about her article on her experience crossing the border in 2016 and asked what she aimed to accomplish by writing it. According to the complaint, the officer also said, “Please don’t write anything bad about us.”
The complaint also details that a CBP officer overheard Merchant speaking with another woman about their experiences while waiting in the screening area and reportedly said to them that when you fly, you sign off all your rights. “Do what you want, get a lawyer, get the courts involved, and do the redress, but you’ll never be able to get off,” the officer is quoted as saying.
Merchant and her husband were held in secondary screening for approximately three hours before being released.
Merchant did not respond to the Tracker’s requests for comment.
The complaint states that three months after the incident, Merchant received a voicemail from a DHS officer who identified himself as Agent Newcomb. He said, in regards to her security experiences every time she travels, that he “would like to come up with a solution that could make everyone happy.”
Merchant later met with Agent Newcomb and another officer who identified himself as Agent Jerome. The officers asked if she knew anyone who had been “radicalized,” hinting that if she provided them information they could resolve her travel issues. She declined to meet with them again.
The complaint states that the years of heightened security screenings has had a severe impact on Merchant. “She avoids flying if possible and experiences extreme frustration, anxiety, and humiliation when she does fly,” the complaint says.
In a 2018 opinion article in The Washington Post, Merchant wrote that her experiences being targeted for prolonged secondary screenings exposed the shifting values in America: “Its greatest qualities of freedom, liberty and opportunity have undoubtedly shaped the person I am today. But these values are slowly diminishing, and those liberties are being taken away from us little by little. I fear one day we will be unable to recognize it as the place we called home.”