Photo by Tingey Injury Law Firm on Unsplash
Every time I turn around, there’s another astounding and confounding assault on our rights. This time, it was the Fifth Circuit stepping in to ensure that our right against unreasonable search and seizure stops cold at the border.
On August 15, the Fifth Circuit Court of Appeals handed down a remarkable and scary decision limiting the rights of US citizens coming back into the country. Malik v. DHS. The upshot of the holding: the Department of Homeland Security (DHS) has an unrestricted ability to seize your phone. The DHS can also wipe your phone of all the data, and then keep both the phone and data.
The Facts
Malik is an immigration lawyer (surprise, surprise) who often travels outside the US. He is a US citizen. Like most of us, he keeps much of his life on his password-protected cell phone. This would include emails and other communications with his 2000+ clients. His cell phone also contained his notes about his clients and their cases and recordings of conversations with them. As you would expect, some of his clients are involved in criminal proceedings. He has numerous cases against the DHS (again, surprise, surprise).
When he returned to Dallas from Costa Rica, he was stopped, and DHS asked him to unlock his phone. Not surprisingly, he refused, telling them he was a lawyer and that his phone had privileged and confidential information on it. Nonplussed, DHS simply took his phone. DHS then sent the phone to a forensic lab that was able to access all the phone’s data. The lab returned the phone and the data to DHS.
A DHS “filter team” then allegedly screened the data for privileged materials (how would they know what was privileged?). DHS
