- Date of Incident
- March 5, 2017
- Zainab Merchant (Independent)
- Case number
- Case Status
- Type of case
- Border Point
- Toronto Pearson International Airport
- Stopped at border?
- Target Nationality
- US Citizenship Status of Target
- U.S. citizen
- Denied Entry?
- Stopped Previously?
- Asked for device access?
- Asked to display social media?
- Asked for social media passwords?
- Asked intrusive questions about work?
- Were devices searched or seized?
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 the online publication Zainab Rights, was subjected to secondary screening and her devices searched by Customs and Border Protection officers at preclearance in Toronto, Canada, on March 5, 2017.
Merchant is one of 11 plaintiffs in a pending lawsuit against the Department of Homeland Security, brought by the American Civil Liberties Union, the Electronic Frontier Foundation and the ACLU of Massachusetts. According to the legal complaint, filed in Sept. 2017, Merchant was returning to the U.S. after visiting her uncle in Toronto. When CBP officers directed her to secondary inspection, they took her laptop and and ordered her to turn over her smartphone.
Merchant objected, in part because her phone contained pictures of her without her headscarf that she did not want the male officers to see, but also because it contained information and communications related to her blog. According to the complaint, a CBP officer told her that her phone would be seized indefinitely if she did not comply.
“In tears, Ms. Merchant unlocked her phone. She also provided the password to unlock her laptop,” the complaint added.
During the hour and a half that Merchant’s electronic devices were out of her sight, CBP officers thoroughly searcher her bags, read her graduate school notebooks and questioned her about her religious affiliation and her blog. Officers specifically asked about an article she had written for Zainab Rights describing her experience at the border in 2016 which was critical of CBP’s actions.
Merchant spent approximately two hours in the inspection area before she was permitted to leave for the boarding area. When her devices were returned, her Facebook app was open to her friends list, which was not the case when she turned over her phone.
According to a separate complaint the organizations filed with DHS on Merchant’s behalf in 2018, when she arrived at the boarding gate, she underwent another pat-down.
The complaint states that Merchant was also subjected to additional screening when she landed in Newark, New Jersey for her connecting flight. The Transportation Security Administration officer checking Merchant’s boarding pass told her she would need to pass through security again, a process which took an hour and caused her to miss her flight.
In a 2018 opinion article in The Washington Post, Merchant outlined how she was detained for secondary screenings multiple times in the previous two year period, including one in 2016 that involved her husband and then-6-month-old baby for six hours. The U.S. Press Freedom Tracker includes incidents only from 2017 forward.
In the Post, Merchant said that as the stops continued she filed a complaint through DHS’s Travel Redress Inquiry Program, wrote to members of Congress and applied for TSA Precheck and CBP Global Entry, programs designed to expedite domestic and international travel. She said her efforts were to no avail.
“Am I being stopped because I am Muslim, or because my family once traveled to Iran to visit a holy shrine? Is it because of my criticism of U.S. policies on the multimedia website I run to raise awareness about injustices around the world? Maybe it’s all three,” Merchant wrote. “Federal officers have asked me about my writing and religion, both of which are protected by the First Amendment.”
Merchant did not respond to the U.S. Press Freedom Tracker’s requests for comment.