Journalist questioned at Dulles International Airport
Isma'il Kushkush — a former acting bureau chief of the New York Times in East Africa and International Center for Journalists fellow — was stopped at the border on Jan. 3, 2017, after arriving on a flight from Israel.
Kushkush, a Sudanese-American dual citizen, told the Committee to Protect Journalists that Customs and Border Protection officers were waiting for him as he got off from the plane and took him to the inspection area where they went through his bags and notebooks. He said that he was detained for about an hour and a half. Officers searched through his notebooks and one officer asked for his cell phone.
Kushkush has reported being detained at the border on at least five previous occasions between 2013 and 2016. He said that these stops lasted between two to three hours and frequently involved requests for access to his electronic devices.
Isma’il Kushkush was one of 11 plaintiffs in a lawsuit against the Department of Homeland Security, brought by the American Civil Liberties Union, the Electronic Frontier Foundation and the ACLU of Massachusetts in September 2017. On June 28, 2021, the Supreme Court declined to hear a case following an initial ruling and appeal.
On Nov. 12, 2019, a federal court in Boston ruled in favor of Kushkush and the other plaintiffs in the ACLU and EFF’s case against DHS, U.S. Immigration and Customs Enforcement and CBP. 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.
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.
Both the plaintiffs and the government defendants appealed the federal district court’s ruling. In a judgement 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.