A California man sued the US government after Customs and Border Protection and Department of Homeland Security agents allegedly detained him for four hours and pressured him to unlock his cell phones so they could search their contents, according to court documents.
Haisam Elsharkawi, a 35-year-old US citizen of Egyptian descent, said he was stopped at the gate at the Los Angeles International Airport on February 9, 2017, after passing through TSA and security checks with no issues. As he was boarding his flight, according to a lawsuit filed by Elsharkawi in a California court in late October, CBP agents allegedly pulled him aside and repeatedly asked him questions, searched his belongings, and asked him to unlock his cell phones.
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When he refused and asked for an attorney, CBP officers allegedly handcuffed him and took him to a room for more questioning, where a DHS officer eventually convinced him to unlock the phone and then looked through it for 15 minutes. At no point did the agents tell him why they were searching and questioning him, the lawsuit alleges, nor did they they have a warrant. According to the lawsuit, the “interrogation” lasted four hours, and Elsharkawi missed his flight.
When going through his phone, the lawsuit alleges, a DHS agent asked Elsharkawi about his Amazon accounts, made comments about how many unread emails and apps he had, and asked where he gets the merchandise that he sells on his e-commerce site, according to the complaint. His lawyers also allege that CBP agents downloaded, made copies, and forensically examined all his data, violating his privacy.
The case highlights how freely CBP agents operate at the US border, and the wide latitude and authority they have to question citizens and search digital devices without having to present a legal justification for it.
Elsharkawi is now suing the US government, the Secretary of Homeland Security Kirstjen Nielsen, CBP commissioner Kevin McAleenan, and four of the agents who questioned him in 2017, seeking damages and an order that would prevent the government from performing this kind of search in the future.
He and his lawyers argue that CBP and DHS violated the First Amendment, which protects religious freedom and freedom of speech, because his phone contained “expressive content and associational information.” His lawsuit also argues that they breached the Fourth Amendment, which bars unreasonable searches and seizures, and the Fifth Amendment, which protects against self-incrimination.
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“The search of Mr. Elsharkawi’s phone was not supported by any real suspicion of ongoing or imminent criminal activity and as such no basis for a search existed,” Elsharkawi’s lawyers, who defined the incident as “outrageous,” argued in the complaint.
When reached for comment, a CBP spokesperson declined to comment on the pending litigation. The spokesperson, however, said in an emailed statement that “all travelers arriving to the US are subject to CBP inspection,” and that “all persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention,” citing a CBP directive on searches on inbound and outbound travelers.
Elsharkawi and his lawyers lawyers did not immediately respond to a request for an interview.
“I travel all the time, and I was never asked to unlock my phone,” Elsharkawi told The New York Times last year, before he filed his lawsuit. “I have personal photos there, which I think is normal for anyone. It’s my right. It’s my phone.”
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