'First Amendment' group sues for release of border search data

The first major initiative of a new “First Amendment Institute” at Columbia University is to sue the federal government for information about immigration searches.

The Knight First Amendment Institute, which opened earlier this year backed by $60 million in funding from Columbia University and the John S. and James L. Knight Foundation, filed the lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) Monday after the two organizations allegedly failed to respond to a previous Freedom of Information Act (FOIA) request from the Institute.

According to The Columbia Spectator, the Institute is concerned that federal law allows DHS to examine the content of anyone’s phone when they enter the country, even if they are a U.S. citizen, and is requesting full access to the agency’s database of searches to review the justifications provided and demographic information about those who have been searched.

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Katie Fallow, a senior attorney with the Knight Institute, told Campus Reform that the group made an expedited FOIA request earlier this month, and filed the lawsuit when it received no response within the 10-day window provided under the law.

“FOIA allows for people to ask for expedited processing for requests that are a matter of great public interest,” she explained. “When you can show that it's a matter of public urgency...the government says you can hear back in 10 days.”

Fallow elaborated that the Knight Institute had become aware of an alleged uptick in the number of “suspicionless searches” being conducted at the border, saying the increased scrutiny seems to be focused primarily on Muslim individuals.

“There's been a lot of reporting in recent months about increased scrutiny at the borders, of stopping people, particularly people with Muslim names or Muslim sounding names,” Fallow claimed. “Anyone can be stopped and have the government look through the all the vast amounts of private information that you have on your phone...and we think that is extremely intrusive and unconstitutional.”

According to the lawsuit, the Knight Institute is seeking “disclosure of records concerning suspicionless searches of individuals’ electronic devices at the nation’s borders,” which Fallow believes to be a gold mine of information.

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“We know that in 2012 or 2013 that the government implemented a civic database or spreadsheet where it keeps track of every search that it conducts of electronic devices at the border,” she asserted, saying the database includes “information about why those devices were searched, and demographic information including their citizenship, their national origin, their race or ethnicity.”

The database is not public information at the moment, but Fallow said that if the lawsuit is successful, the Knight Institute will publish the information it receives.

Although the Knight Institute is primarily concerned with upholding the First Amendment, whereas government searches are a Fourth Amendment issue, Fallow argued that the lawsuit is important because electronic device searches can endanger the public’s ability to speak freely.

"People are unlikely to feel that they can speak freely or engage in social media or have particular apps...if the government can peek into their cell phone and read all of that...simply as one of the costs of traveling internationally,” she contended.

And while she conceded that “a lot of times the discussion of this issue has been in the context of the right to privacy and the Fourth Amendment,” she also pointed out that allowing border patrol agents to search electronic devices is a threat to journalists, too.

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"There are lots of reports of journalists being stopped under this policy and having their cellphones searched and having their communications with confidential sources even reviewed,” she explained, noting that this could impact journalists’ ability to garner “as much information from confidential sources” as they could if the policy were not in effect.

The Knight Institute told Campus Reform that the government has 30 days to respond to the FOIA lawsuit, but even if the government provides the documents they’re requesting, Fallow said the Insitute would “absolutely” consider additional litigation based on what the data reveals.

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