Alasaad v. Nielsen, No. 17-cv-11730-DJC

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtCASPER, J.
Citation419 F.Supp.3d 142
Parties Ghassan ALASAAD, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma'il Kushkush, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly and Matthew Wright, Plaintiffs, v. Kirstjen NIELSEN, Secretary of the U.S. Department of Homeland Security, in her official capacity; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity, Defendants.
Decision Date12 November 2019
Docket NumberNo. 17-cv-11730-DJC

419 F.Supp.3d 142

Ghassan ALASAAD, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma'il Kushkush, Diane Maye Zorri, Zainab Merchant, Mohammed Akram Shibly and Matthew Wright, Plaintiffs,
v.
Kirstjen NIELSEN, Secretary of the U.S. Department of Homeland Security, in her official capacity; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity, Defendants.

No. 17-cv-11730-DJC

United States District Court, D. Massachusetts.

Filed November 12, 2019


419 F.Supp.3d 147

Aaron Mackey, Pro Hac Vice, Adam Schwartz, Pro Hac Vice, Sophia Cope, Pro Hac Vice, Saira Hussain, Pro Hac Vice, Electronic Frontier Foundation, San Francisco, CA, Esha Bhandari, Pro Hac Vice, Hugh Handeyside, Pro Hac Vice, ACLU Foundation, New York, NY, Matthew Segal, American Civil Liberties Union, Nathan Freed Wessler, Pro Hac Vice, ACLU Foundation of Massachusetts, Jessie J. Rossman, ACLU of Massachusetts, Boston, MA, Matthew S. Shapanka, Covington & Burling, Washington, DC, for Plaintiffs.

Annapurna Balakrishna, U.S. Attorney's Office, Boston, MA, Michael Drezner, Marsha S. Edney, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma'il Kushkush, Diane Maye, Zainab Merchant, Mohammed Akram Shibly and Matthew Wright (individually, by last name and collectively, "Plaintiffs") bring this suit against the following persons in their official capacities: Kirstjen Nielsen, Secretary of the U.S. Department of Homeland Security ("DHS"),1 Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection ("CBP"), and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement ("ICE") (collectively, "Defendants"). D. 7 at ¶¶ 14-26. Plaintiffs, ten U.S. citizens and one lawful permanent resident, allege that Defendants' conduct—searching Plaintiffs' electronic devices at ports of entry to the United States and, in some instances, confiscating the electronic devices being searched, pursuant to CBP and ICE policies—violates the Fourth Amendment (Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 at ¶¶ 1-10, 168-73. They seek declaratory and injunctive relief related to Defendants' ongoing policies and practices as well as the searches of Plaintiffs' electronic devices including expungement of "all information gathered from, or copies made of, the contents of Plaintiffs' electronic devices, and all of Plaintiffs' social media information and device passwords." D. 7 at 40-42; D. 99 at 7-8, 12-13. Plaintiffs have now moved for summary judgment, D. 90, and Defendants have cross moved for summary judgment, D. 96. Although governmental

419 F.Supp.3d 148

interests are paramount at the border, where such non-cursory searches—even "basic" searches as broadly defined under CBP and ICE policies as well as the "advanced" searches of Plaintiffs' electronic devices—amount to non-routine searches, they require reasonable suspicion that the devices contain contraband. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs' motion, D. 90, and DENIES Defendants' motion, D. 96.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) ). The movant "bears the burden of demonstrating the absence of a genuine issue of material fact." Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) ; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor," Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is ‘significant[ly] probative.’ " Id. (alteration in original) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). On cross-motions for summary judgment, the standards of Rule 56 remain the same, and require the courts "to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Adria Int'l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).

III. Factual Summary

As perhaps evidenced by the parties' cross motions for summary judgment, the material facts concerning the searches of Plaintiffs' electronic devices and the policies pursuant to which CBP and ICE agents conduct border searches are undisputed. The Court gives this brief summary as background for the Plaintiffs' claims, but otherwise addresses the material facts in the analysis of the parties' respective legal positions below. This summary is drawn from the parties' statements of material facts, D. 90-2, D. 98, and D. 103-1, as well as the parties' responses to those statements, D. 99-1 and D. 105.

The two agencies with primary responsibility for border searches are CBP and ICE. D. 90-2 at ¶¶ 1, 17; D. 98 at ¶ 1. Both agencies issued written policies on border searches of electronic devices in August 2009. D. 98 at ¶ 6; D. 99-1 at ¶ 6. In January 2018, CBP updated its policy to distinguish between two different types of searches, "basic" and "advanced," and to require reasonable suspicion or a national security concern for any advanced search, but no showing of cause for a basic search. D. 98 at ¶ 7; D. 99-1 at ¶ 7. Under this policy, an advanced search is defined as "any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the

419 F.Supp.3d 149

device, but to review, copy and/or analyze its contents." D. 98 at ¶ 8; D. 99-1 at ¶ 8. The parameters of an advanced search are clearer given this definition than that adopted for a basic search, which is merely defined as "any border search that is not an advanced search." D. 98 at ¶ 8; D. 99-1 at ¶ 8. Both CBP and ICE use the same definitions of basic and advanced searches and ICE policy also requires reasonable suspicion to perform an advanced search. D. 98 at ¶ 9; D. 99-1 at ¶ 9.2

The evidence as to the border searches of Plaintiffs' electronic devices is largely the same as alleged in the amended complaint and as relied upon by this Court in its Memorandum & Order regarding Defendants' motion to dismiss. Compare D. 34 at 10-16 with D. 99-1 at ¶¶ 120-149. Accordingly, the Court will not repeat all of the details of those searches again here but summarizes them and discusses some of them further below. Plaintiffs are U.S. citizens (except Dupin, who is a lawful permanent resident) who reside across the country and in Canada. D. 98 at ¶¶ 120, 124, 126, 128, 131, 133, 136, 143, 145, 148; D. 99-1 at ¶¶ 120, 124, 126, 128, 131, 133, 136, 143, 145, 148. Each of the eleven Plaintiffs has had their electronic devices searched at the border at least once. D. 98 at ¶¶ 51-52; D. 99-1 at ¶¶ 51-52. Some of the searches were at border crossings, id. at ¶¶ 121, 130, 135, 144, although most were at U.S. airports after a Plaintiff's return to the United States on an international flight. Id. at ¶¶ 123, 125, 127, 129, 132, 134, 137, 140, 141-42, 146, 149; D. 105 at ¶ 125.1; United States v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015) (noting that "[i]nternational airports ... are the ‘functional equivalent’ of an international border and thus subject to this [border search] exception"). These searches included searches of smartphones, either locked or unlocked, D. 99-1 at ¶¶ 121, 123, 125, 127, 129, 130, 132, 134, 135, 137, 140-42, 144, 147, 149, and at least as to Kushkush, Wright, and Allababidi, the search of other electronic media including, in some cases, laptop computers, id. at ¶¶ 134, 146-47; D. 105 at ¶ 125.1. Five of the Plaintiffs (Merchant, Nadia Alasaad, Dupin, Kushkush and Allababidi) have had their electronic devices searched more than once. D. 98 at ¶ 52; D. 99-1 at ¶ 52; D. 103-1 at ¶ 125.1; D. 105 at ¶ 125.1; D. 107 at 120-21. Two of the Plaintiffs, Merchant and Allababidi, have had their devices searched subsequent to the filing of the initial complaint in this case in September 2017: Merchant in September 2018, D. 98 at ¶¶ 53-54; D. 99-1 at ¶ 53, and...

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3 practice notes
  • Alasaad v. Mayorkas, Nos. 20-1077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 9, 2021
    ...in dispute. We supplement our description of the facts with the district court's comprehensive statement of facts. Alasaad v. Nielsen, 419 F. Supp. 3d 142, 148-50 (D. Mass. 2019) ; Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2018 WL 2170323 at *1-2 (D. Mass. May 9, 2018).A. Agency Policies Two......
  • Salloum v. Kable, Case No. 19-cv-13505
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • December 18, 2020
    ...perusal and a particularized search of a traveler's personal data, images, files and even sensitive information.Alassad v. Nielsen, 419 F.Supp.3d 142, 163 (D. Mass. 2019) (declining to grant defendants summary judgment on plaintiffs' Fourth Amendment claim that arose out of seizure and sear......
  • United States v. Shuren Qin, Criminal No. 18-cr-10205
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 30, 2020
    ...devices at Logan Airport on November 24, 2017. D. 226 at 19. For reasons consistent with this Court's ruling in Alasaad v. Nielson, 419 F. Supp.3d 142 (D. Mass. 2019), appeal pending, No. 20-1081 (1st Cir. Jan. 29, 2020), the Court rejects the government's reliance on this exception here fo......
3 cases
  • Alasaad v. Mayorkas, Nos. 20-1077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 9, 2021
    ...in dispute. We supplement our description of the facts with the district court's comprehensive statement of facts. Alasaad v. Nielsen, 419 F. Supp. 3d 142, 148-50 (D. Mass. 2019) ; Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2018 WL 2170323 at *1-2 (D. Mass. May 9, 2018).A. Agency Policies Two......
  • Salloum v. Kable, Case No. 19-cv-13505
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • December 18, 2020
    ...perusal and a particularized search of a traveler's personal data, images, files and even sensitive information.Alassad v. Nielsen, 419 F.Supp.3d 142, 163 (D. Mass. 2019) (declining to grant defendants summary judgment on plaintiffs' Fourth Amendment claim that arose out of seizure and sear......
  • United States v. Shuren Qin, Criminal No. 18-cr-10205
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 30, 2020
    ...devices at Logan Airport on November 24, 2017. D. 226 at 19. For reasons consistent with this Court's ruling in Alasaad v. Nielson, 419 F. Supp.3d 142 (D. Mass. 2019), appeal pending, No. 20-1081 (1st Cir. Jan. 29, 2020), the Court rejects the government's reliance on this exception here fo......

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