Chapter 26 - Screening for Security

1. Chapter 26 - Screening for Security

2. United States v. Saboonchi, 990 F. Supp. 2d 536 (Dist MD 2014) • Plaintiff is a dual United States-Iranian citizen who was reentering the country from a day trip in Canada. • His name was on a watchlist and he was stopped and his smart phone and a USB drive were seized. • He was charged with violating export controls in this case arises from a motion to suppress evidence obtained without a proper warrant.

3. What is the border search doctrine? • It therefore is well-established ‘‘[t]hat searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’’ United States v. Ramsey, 431 U.S. 606, 616 (1977). • ‘‘Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant. . . .’’ United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).

4. How far from the border can you be? • Extended border search – depends on where you would reasonable encounter border officials. • Where were the devices seized in this case? • Before coming across. • Why is this the easiest case for warrantless order search?

5. Examples of the reach of routine searches that do not require a warrant • … a routine search may extend to the inside of an automobile gas tank, United States v. Flores-Montano, 541 U.S. 149, 155 (2004), • to the contents of photograph albums or information encoded on video tapes, United States v. Ickes, 393 F.3d 501, 502-03 (4th Cir. 2005), • or to password protected or locked items, United States v. McAuley, 563 F. Supp. 2d 672, 678 (W.D. Tex. 2008).

6. Why is this critical to effective customs and border enforcement? • Insofar as the ‘‘touchstone of the Fourth Amendment is reasonableness,’’ Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United States, 389 U.S. 347, 360 (1967)), it does not require Napoleonic insight to see how the power to conduct searches of this kind on a routine basis, without suspicion, is the sine qua non of customs and border enforcement;

7. What are the criteria for determining whether a search is reasonable? • (i) whether the search results in the exposure of intimate body parts or requires the suspect to disrobe; • (ii) whether physical contact between Customs officials and the suspect occurs during the search; • (iii) whether force is used to effect the search; • (iv) whether the type of search exposes the suspect to pain or danger; • (v) the overall manner in which the search is conducted; and • (vi) whether the suspect’s reasonable expectations of privacy, if any, are abrogated by the search (United States v. Braks)

8. What is a forensic search? • In contrast, a forensic search is a different search—not merely a search of a different object—and it fundamentally alters the playing field for all involved. A forensic search requires the creation of a bitstream copy and its thorough analysis with specialized software over an extended period of time. This type of search raises issues that do not arise in conventional searches.

9. What is unique about a forensic search? • First, because the item searched is a bitstream copy of a device, it may take place long after the device itself has been returned to its owner and therefore a forensic search is unbounded in time. • Second, a forensic search allows officers to recover a wealth of information even after it has been deleted. • And third, a forensic search provides information about a person’s domestic activities away from the border that is not otherwise available even in a conventional search taking place at the border.…

10. Did this court find a forensic search a routine search? • Accordingly, under the facts presented to me in this case, I find that a search of imaged hard drives of digital devices taken from the Defendant at the border and subjected to forensic examination days or weeks later cannot be performed in the absence of reasonable suspicion.

11. Reasonable suspicion in this case • What is the source of reasonable suspicion in this case? • Defendant being on a watchlist. • Can defendant challenge his inclusion on the watchlist as a collateral attack on reasonable suspicion?

12. Is this consistent with the cell phone search case? • We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search. [Riley, 134 S. Ct. at 2484-2485.] • (Should the reasoning of Riley be assumed to include searches of computers?)

13. Have other courts reach the same conclusion about forensic searches? • We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. …it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects. The same could be said for a recreational vehicle filled with personal effects or a tractor-trailer loaded with boxes of documents. [United States v. Touset, 890 F.3d 1227, 1233 (11th Cir. 2018)

14. Airport Screening • Can you fly without a government ID? • Are states free to decide the form of this government ID? • Do you have your new Louisiana Real ID compliant driver’s license? • Should you be able to leave the screening line without being screened?

15. What is the justification for airport screening? • Do travelers consent to being searched by flying? • Is it a border search if it is a domestic flight? • Why are we searching for weapons or explosives – prosecution or prevention? • How is requiring you to boot up your laptop a different purpose than searching the files on your laptop?

16. Subway and Train Searches • Why did NY do random container searches rather than search everyone? • What is the intent of random searches? • Can you walk away? • Does that undermine the effectiveness claim? • Could NY do a contraband search, such as a border search on transit riders?

17. The REAL ID Act—A Step in the Direction of a National ID Card? • The REAL ID Act forbids any federal agency, … from accepting for any official purpose a state-issued driver’s license or identification card unless it meets certain requirements. The identification must include the licensee’s name, address, date of birth, gender, a digital photo, signature, anti-tampering security features, and ‘‘[a] common machine-readable technology, with defined minimum data elements.’’ Id. §202(b)(9), 119 Stat. at 312.

18. What does the Real ID act require the states to do? • In addition, the state must insist on and verify certain identifying information and evidence of lawful status to issue such an identification. Finally, each state must ‘‘provide electronic access to all other States to information contained in the motor vehicle database of the States,’’ which must include, at a minimum, ‘‘all data fields printed on drivers’ licenses and identification cards issued by the State.’’ • Is this a national ID? Why or why not?

19. Identification • Can you enter a federal building without ID? • What about a stop and identify law as part of a Terry stop? • Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177 (2004) (upholding a Nevada ‘‘stop-and-identify’’ statute that requires individuals lawfully subjected to a Terry stop to identify themselves). • What about id check points or other non-Terry stops?

20. Should identifying yourself require a national ID card? • What are the potential legal issues for a required national identity card? • Is the problem requiring the card or requiring the card to be shown? • Don’t we require a social security card? • Would a national id number solve the watch list confusion problem?

21. Watchlists Ibrahim v. Department of Homeland Security 62 F. Supp. 3d 909 (2014) (Ibrahim II)

22. How accurate is the watchlist process, as of 2008? • TSA maintains a list of approximately 30,000 individuals who are commonly confused with those on the No- Fly and Selectee Lists. One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008.

23. What did the government say about her status as a threat to national security? • Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security. She does not pose (and has not posed) REDACTED This the government admits and this order finds

24. How did she end up on the no-fly list? • Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA’s no-fly list REDACTED He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the REDACTED He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form.

25. Why is the mistake significant beyond the database the agent was updating? • The government maintains a web of interlocking watchlists, all now centered on the Terrorist Screening Database (“TSDB”). This web and how they interlock are important to the relief sought and awarded herein.

26. Was she given notice when she was added to the list? • When persons are placed on the no-fly list or any other watchlist, they receive no formal notice of such placement and may never learn of such placement until, if ever, they attempt to board a plane or do any other act covered by the watchlist.

27. Why did adding her to the no-fly list then cost her the visa, so she could not return to the US? • The visa may be “prudentially” revoked, thereby making the individual ineligible to approach the borders of the United States. Within the Department of State, such a revocation is called “prudential.” Such a prudential revocation forces the alien to reapply for a new visa, so that a new evaluation of the applicant’s eligibility and admissibility can be made.

28. Was plaintiff given a visa to attend the trial in this case? • Trial in this action began on December 2 and ended on December 6. As of December 6, Dr. Ibrahim had not received a response to her visa application. At trial, however, government counsel stated verbally that the visa had been denied.

29. Stopped here • Ibrahim v. Department of Homeland Security 62 F. Supp. 3d 909 (2014) (Ibrahim II)

30. What is the three part Matthews test as quoted in this opinion? • First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest.

31. What are plaintiff’s interests? • With respect to Dr. Ibrahim, the private interests at stake in her 2005 deprivations were the right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958), and • the right to be free from incarceration, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and • from the stigma and humiliation of a public denial of boarding and incarceration, Paul v. Davis, 424 U.S. 693, 701, 711 (1976), • any one of which would be sufficient and all three of which apply on this record.

32. What is the government’s interest? • With respect to the government’s interest, all would surely agree that our government must and should track terrorists who pose a threat to America — not just to its air travel — but to any aspect of our national security. • Should it matter in the analysis that the government made a mistake in this case? • Probably not – that is what the Matthews analysis is all about – see factor 3.

33. What is factor 3 in this case? • The final Mathews factor is the risk of an erroneous deprivation through the procedures used and the probable value, if any, of additional or substitute procedural safeguards.

34. What did the court order as plaintiff’s remedy? • Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. • Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim.

35. What databases do defendants have to correct? • By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose.

36. Did the due process violations justify a pre-injury hearing? • Put differently, until concrete, reviewable adverse action occurs against a nominee, the Executive Branch must be free to maintain its watchlists in secret, just as federal agents must be able to maintain in secret its investigations into organized crime, drug trafficking organizations, prostitution, child-pornography rings, and so forth.

37. What do plaintiffs have to show for stigma plus? • Plaintiffs have not alleged any tangible harm to their personal or professional lives that is attributable to their association with the No-Fly List, and which would rise to the level of a Constitutional deprivation of a liberty right. Furthermore, Plaintiffs have not alleged any injury to a property interest as a result of the disclosure of allegedly stigmatizing statements. Plaintiffs have not plead[ed] any tangible harm that satisfies the ‘‘plus’’ prong. Therefore, Plaintiffs have failed to state a stigma-plus Fifth Amendment claim.

38. When is a target entitled to relief? • Once concrete, reviewable adverse action is taken against a target, then there is and will be time enough to determine what post-deprivation process is due the individual affected.

39. What does the court say about the reasonable suspicion standard? • In this connection, since the reasonable suspicion standard is an internal guideline used within the Executive Branch for watchlisting and not imposed by statute (or by specific judicial holding), the Executive Branch is free to modify its own standard as needed by exception, even if the exception is cloaked in state secrets. Any other rule requiring reviewability before concrete adverse action would be manifestly unworkable.

40. Did it order the system to be changed? • No • Did she get her visa? • It is true, as the government asserts as part of its ripeness position, that she cannot fly to the United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the day will come when all hurdles are cleared and she can fly back to our country

41. The record problem • [T]he DHS TRIP process suffers from an even more fundamental deficiency. As noted, the reasonable suspicion standard used to accept nominations to the TSDB is a low evidentiary threshold. This low standard is particularly significant in light of Defendants’ refusal to reveal whether travelers who have been denied boarding and who submit DHS TRIP inquiries are on the No-Fly List and, if they are on the List, to provide the travelers with reasons for their inclusion on the List. • ‘‘Without knowledge of a charge, even simple factual errors may go uncorrected despite potentially easy, ready, and persuasive explanations.’’

42. Mission Creep? • Watchlists are already used to control visa eligibility, entry, and departure; to screen airline passengers; to screen employees for sensitive jobs; and to trigger surveillance. ‘‘Mission creep’’—using lists for more and more purposes, including ordinary criminal and regulatory purposes, such as denial of firearms purchases—is a continuing risk. • Banks and employers also use them.

43. Profiling Farag v. United States, 587 F. Supp. 2d 436 (EDNY 2008)

44. What happened to plaintiffs? • They claim that when they deplaned they were met by at least ten armed police officers in SWAT gear with shotguns and police dogs, ordered to raise their hands, frisked, handcuffed and taken to a police station, where they were placed in jail cells; they were not released until about four hours later, after having been interrogated at length during their imprisonment regarding suspected terrorist surveillance activity aboard the plane. The investigation yielded absolutely no evidence of wrongdoing.

45. What was their ethnicity and citizenship? • Both were born in Egypt, but Farag, 36, had moved to the United States in 1971 at age five and later became an American citizen. He was a retired New York City police officer, and was then employed by the United States Bureau of Prisons as a corrections officer. Elmasry, 37, was an Egyptian citizen; he was employed in Egypt by General Electric as an area sales manager for its Africa-East Mediterranean region and had a valid U.S. visa.]

46. How did the court describe Farag? • As an Arab • Why is this troubling? • He had grown up in the US and was a citizen

47. What kind action did they bring? • Bivens • What do defendants claim as their defense? • Qualified immunity • Was it reasonable for them assume their actions were legal, even if they were not? • What suspicious conduct did the government point to? P810

48. What suspicious things did they do when confronted by the armed men? • —Farag told Smith that ‘‘after 9/11, when the CIA had c[o]me into the Federal Bureau of Prisons, my supervisors had asked me to translate documents, to translate tapes, [and] in fact I did translate tapes’’; • —Farag told Smith that ‘‘I had guns pointed at me as a police officer’’; • —While Farag was telling these things to Smith, Farag was ‘‘jittery’’ and ‘‘shaking’’ and ‘‘[his] speech was not calm.’’ He appeared ‘‘nervous’’ and seemed ‘‘jumpy and agitated,’’ and he raised his voice.

49. What is the legal test for probable cause to arrest? • ‘‘where the arresting officer has ‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’ ’’ • Is this an objective or subjective standard, i.e., does the court access the officer’s state of mind? • Objective • Why does the court think the plaintiffs actions were seen to be suspicious? • race

50. What part of the defendant’s evidence did the court find most troubling? • Most troubling, the heavy reliance which the Government places on the plaintiffs’ speaking ‘‘loudly’’ to each other over the heads of other passengers and otherwise drawing attention to themselves is counterintuitive: • it simply makes no sense that if Elmasry were a terrorist on a surveillance mission, he would speak ‘‘loudly’’ across the aisle to his companion before takeoff, seek out and converse with the flight attendant, relocate to a seat ‘‘between two large men,’’ or volunteer to one of those ‘‘large men’’ that he was from Egypt.