Lazoja Sues US For Phone Seizure.

Case 2:18-cv-13113-SDW-LDW Document 1 Filed 08/23/18 Page 1 of 2 PageID: 1
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY
REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-__________
v.
KRISTJEN NIELSEN, in her official capacity

as Secretary of UNITED STATES
DEPARTMENT OF HOMELAND MOTION DAY: September 17, 2018
SECURITY; KEVIN K. MCALEENAN, in
his official capacity as Commissioner, ORAL ARGUMENT REQUESTED
UNITED STATES CUSTOMS AND
BORDER PROTECTION; ADELE
FASANO, in her official capacity as Port
Director, UNITED STATES CUSTOMS
AND BORDER PROTECTION; JANE DOE,
in her official capacity as an officer, UNITED
STATES CUSTOMS AND BORDER
PROTECTION; and JOHN DOES 1-2, in
their official capacities as officers, UNITED
PROTECTION.
Defendants.
NOTICE OF MOTION
PLEASE TAKE NOTICE that, Plaintiff, Rejhane Lazoja, through her attorneys, the Council
on American-Islamic Relations, New Jersey and the Council on American-Islamic Relations, New
York, will move the Court at the United States District Court for the District of New Jersey, 50
Walnut Street, Newark, New Jersey, on September 17, 2018, for the entry of an Order directing the
return of certain seized property to Plaintiff, pursuant to Federal Rule of Criminal Procedure 41(g).
1
Case 2:18-cv-13113-SDW-LDW Document 1 Filed 08/23/18 Page 2 of 2 PageID: 2
PLEASE TAKE FURTHER NOTICE that Plaintiff will rely upon Plaintiff’s Brief in
Support of Motion For Return of Property Under Federal Rule of Criminal Procedure 41(g), and
Declaration of Jay Rehman, Esq., dated August 23, 2018, annexing: Affidavit of Rejhane Lazoja
dated August 22, 2018; Notice to U.S. Customs and Border Protection (“CBP”), dated July 9, 2018;
and CBP Policy Directive, dated January 4, 2018, in support of its motion.
PLEASE TAKE FURTHER NOTICE that a proposed form of Order is submitted herewith.
DATED: August 23, 2018

[Newark, New Jersey]
Respectfully submitted,
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS NEW JERSEY
By: ___s/ Jay Rehman_____________

Jay Rehman
4475 S. Clinton Ave., Suite 202
South Plainfield, New Jersey 07080
jRehman@cair.com
(908) 668-5900
RELATIONS NEW YORK
Albert Fox Cahn

(pro hac vice pending)
aCahn@cair.com
Carey Shenkman
legal@ny.cair.com
46-01 Twentieth Avenue
Queens, New York 11105
(646) 665-7599
Attorneys for Plaintiff
2
Case 2:18-cv-13113-SDW-LDW Document 1-1 Filed 08/23/18 Page 1 of 1 PageID: 3
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Rejhane Lazoja KRISTJEN NIELSEN, in her official capacity as Secretary of UNITED
STATES DEPARTMENT OF HOMELAND SECURITY, et al.
(b) County of Residence of First Listed Plaintiff New York County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Jay Rehman, Council on American-Islamic Relations New Jersey
4475 S. Clinton Ave., Suite 202, South Plainfield, New Jersey 07080
(908) 668-5900 (see attachment)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Federal Rule of Criminal Procedure 41(g)
VI. CAUSE OF ACTION Brief description of cause:
Fed. Crim. R. 41(g) motion for return of property
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
08/23/2018 /s Jay Rehman
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-______________
v.

DEPARTMENT OF HOMELAND
his official capacity as Commissioner,
PROTECTION.
Defendants.
ANNEX TO CIVIL COVER SHEET FOR ADDITIONAL ATTORNEYS REPRESENTING

PLAINTIFF REJHANE LAZOJA
Plaintiff Rejhane Lazoja is also represented by the Council on American-Islamic
Relations, New York, Albert Fox Cahn, pro hac vice pending, and Carey Shenkman, pro hac vice
pending, located at 46-01 Twentieth Avenue, Queens, New York 11105, (646) 665-7599.
By: ___s/ Jay Rehman________________

Jay Rehman
jRehman@cair.com
(908) 668-5900
RELATIONS NEW YORK
Albert Fox Cahn

aCahn@cair.com
Carey Shenkman
legal@ny.cair.com
(646) 665-7599


REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-______________
v.

DEPARTMENT OF HOMELAND MOTION DAY: September 17, 2018
his official capacity as Commissioner, ORAL ARGUMENT REQUESTED
PROTECTION.
Defendants.
PLAINTIFF’S BRIEF IN SUPPORT OF MOTION FOR RETURN OF PROPERTY UNDER

FEDERAL RULE OF CRIMINAL PROCEDURE 41(g)
TABLE OF CONTENTS
Preliminary Statement ..................................................................................................................... 1
Jurisdiction and Venue.................................................................................................................... 3
Rule 41(g) of the Federal Rules of Criminal Procedure ................................................................. 3
Parties .............................................................................................................................................. 4
Statement of Facts ........................................................................................................................... 5
Argument ........................................................................................................................................ 9
I. The Fourth Amendment Requires a Warrant Supported by Probable Cause to Search, Seize,
or Copy Digital Data Storage Devices, or Share Copies of the Contents with Third Parties .... 9
II. The Length of Time Property is Detained Raises a Separate Fourth Amendment Inquiry . 14
III. Any Retention of Data, or Sharing of Data with Third Parties, Without a Warrant
Supported by Probable Cause, Violates the Fourth Amendment ............................................ 14
Conclusion .................................................................................................................................... 15
i
TABLE OF AUTHORITIES
Alasaad v. Nielsen,
2018 U.S. Dist. LEXIS 78783 (D. Mass. May 9, 2018).................................................. 2, 10-11
Carpenter v. United States,

585 U.S. ___, 2018 U.S. LEXIS 3844 (2018) ........................................................... 2, 10, 12-13
Doe v. United States,

896 F. Supp. 2d 1184 (S.D. Fla. 2012) ....................................................................................... 4
House v. Napolitano,
2012 U.S. Dist. LEXIS 42297 (D. Mass. Mar. 28, 2012) ........................................................ 14
Janfeshan v. United States Customs & Border Prot.,

2017 U.S. Dist. LEXIS 151058 (S.D.N.Y. 2017) .................................................................... 12
Ordonez v. United States,

680 F.3d 1135 (9th Cir. 2012) ................................................................................................. 3-4
Riley v. California,
134 S. Ct. 2473 (2014) ........................................................................................................ 10-12
Tellez-Sanchez v. United States,

2014 U.S. Dist. LEXIS 92418 (D. Ariz. 2014) .......................................................................... 4
Terry v. Ohio,
392 U.S. 1 (1968) ................................................................................................................ 13-14
United States v. Bennett,

423 F.3d 271 (3d Cir. 2005) ....................................................................................................... 4
United States v. Cortez,

449 U.S. 411 (1981) ................................................................................................................. 13
United States v. Djibo,

151 F. Supp. 3d 297 (E.D.N.Y. 2015) ................................................................................. 11-12
United States v. Kim,

103 F. Supp. 3d 32 (D.D.C. 2015) .................................................................................. 2, 12-13
United States v. Kolsuz,

890 F.3d 133 (4th Cir. 2018) .................................................................................................... 12
ii
United States v. Place,

462 U.S. 696 (1983) ................................................................................................................. 14
United States v. Ramsey,

431 U.S. 606 (1977) ................................................................................................................. 10
Statutes and Regulations
CBP Directive No. 3340-049A (Jan. 4, 2018) ......................................................................... 1, 8-9
Fed. R. Crim. P. 41(g) ............................................................................................................ passim
Law Review Articles
Thomas Mann Miller, Digital Border Searches After Riley v. California,

90 Wash. L. Rev. 1943, 1947 (2015) ....................................................................................... 11
iii
PRELIMINARY STATEMENT
1. This is a motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure
seeking the return of any personal data that Defendant U.S. Customs and Border Protection
(“CBP”), its agents and employees copied from Plaintiff Rejhane Lazoja’s phone, which was taken
from her unlawfully at the border and which contains privileged communications between Ms.
Lazoja and her counsel. The seizure, retention, and any sharing of her property without reasonable
suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth
Amendment of the U.S. Constitution, and are at odds with recent Supreme Court holdings as well
as District Court and Court of Appeals decisions scrutinizing CBP’s practices of seizing digital
storage devices without a warrant.
2. When Ms. Lazoja landed at Newark Liberty International Airport (“Newark”), she
was already exhausted from the nine-hour transatlantic flight. Instead of welcoming her back to
the United States, her home country, Defendants’ agents and employees questioned Ms. Lazoja,
searched her, took her to a small, windowless room, and even seized her cell phone. Ms. Lazoja is
a Muslim woman and wears a hijab (a headscarf) in accordance with her religious beliefs. Pursuant
to her sincerely held beliefs, Ms. Lazoja cannot be seen in a state of undress by men who are not
family members. The personal data on Ms. Lazoja’s phone included pictures of her in a state of
undress, as well as privileged communications with her counsel.
3. U.S. Customs and Border Protection (“CBP”) follows a policy Directive that states
“copies of information contained in electronic devices (or portions thereof) . . . are retained in
accordance with this Directive” and are shared “with federal, state, local, and foreign law
enforcement agencies to the extent consistent with applicable law and policy.” CBP Directive No.
3340-049A, § 5.5.1.3. (Jan. 4, 2018), Ex. 3.
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4. Today, over 150 days later, on information and belief, Defendants and their agents
and employees still possess the personal data from Ms. Lazoja’s cell phone. While Defendants
returned Ms. Lazoja’s cell phone 130 days after it was seized, they refuse to state what they did
with her personal data, what third parties her personal data was shared with, and if let alone when
they will return her data. At no time, not when Defendants’ agents and employees seized Ms.
Lazoja’s cell phone, nor at any point in the over 150 days since, have Defendants articulated a
reasonable suspicion for seizing the phone, let alone probable cause, let alone produced a warrant
to search or seize Plaintiff’s phone and personal data.
5. Seizing and searching a cell phone is unlike seizing or searching any other property.
Cell phones are a uniquely intimate and expansive repository of our lives. They do far more than
just make calls and send e-mails; they monitor and log much of our movement, activity, and even
our thinking in real time. They enable us to stay connected with coworkers and loved ones—losing
a phone essentially cuts one off from modern society. In June, the Supreme Court recognized the
indispensability of cell phones and the heightened privacy interests at stake when they are utilized
in warrantless investigations. See Carpenter v. United States, 585 U.S. ___, 2018 U.S. LEXIS
3844 at *23 (2018) (“While individuals regularly leave their vehicles, they compulsively carry cell
phones with them all the time.”). Numerous District Courts, even prior to Carpenter, have
scrutinized CBP’s policy of seizing and searching cell phones without a warrant. See, e.g., Alasaad
v. Nielsen, 2018 U.S. Dist. LEXIS 78783 *3 (D. Mass. May 9, 2018) (denying a government
motion to dismiss on a Fourth Amendment challenge to warrantless digital device searches and
seizures at the border); United States v. Kim, 103 F. Supp. 3d 32, 54-58 (D.D.C. 2015) (finding
that off-border search and copying of a laptop computer without a warrant was unreasonable).
2
6. Defendants and their agents and employees violated Ms. Lazoja’s Constitutional
rights in three discrete ways: first, by initially searching and seizing Ms. Lazoja’s property without
a warrant or reasonable suspicion; second, by failing to return Ms. Lazoja’s property for over 120
days with no warrant or reasonable suspicion; and third, by continuing to retain any information
copied from Ms. Lazoja’s phone (“Data”) without a warrant or reasonable suspicion long-after her
passage through the border. Any ongoing retention by Defendants of Ms. Lazoja’s Data is
manifestly unreasonable and a continuing violation of Ms. Lazoja’s Fourth Amendment rights.
Therefore, Ms. Lazoja asks this Court to order Defendants to return her Data, order an
expungement of any copies made of the Data, and disclose all third parties who received and/or
retain copies, partial or complete, of the Data, as well as any information about the basis for the
seizure and retention of her property.
JURISDICTION AND VENUE
7. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1356, and Rule 41(g)
of the Federal Rules of Criminal Procedure.
8. This Court has authority to issue declaratory and injunctive relief under 28 U.S.C.
§ 2201 and § 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and its inherent
equitable powers.
9. Venue properly lies within the District of New Jersey because Ms. Lazoja’s
property was seized at Newark, which is in this district. 28 U.S.C. § 1391(b)(2); Fed. R. Crim. P.
41(g).
RULE 41(g) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
10. Rule 41(g) of the Federal Rules of Criminal Procedure empowers those “aggrieved
by an unlawful search and seizure of property or by the deprivation of property” to “move for the
3
property’s return . . . in the district where the property is seized.” See Ordonez v. United States,
680 F.3d 1135, 1137 (9th Cir. 2012) (“[Rule 41(g)] provides a mechanism by which a person may
seek to recover property seized by federal agents.”). Where the government terminates, or declines
to initiate criminal proceedings, Rule 41(g) allows the wronged party to bring a civil claim under
the court's equitable jurisdiction. United States v. Bennett, 423 F.3d 271, 274 (3d Cir. 2005) (“In a
typical case under Rule 41(g), a district court exercises its equitable powers.”); see also United
States v. Bein, 214 F.3d 408, 411 (3d Cir. 2000) (“A district court has jurisdiction to entertain a
motion for return of property even after the termination of criminal proceedings against the
defendant and such an action is treated as a civil proceeding for equitable relief.”); Doe v. United
States, 896 F. Supp. 2d 1184, 1187-88 (S.D. Fla. 2012) (exercising jurisdiction over a Rule 41(g)
motion for return of property, where the property included data copied from digital devices
detained at the border, after the physical property had been returned, and where the data contained
attorney-client privileged materials).
11. After a Rule 41(g) movant demonstrates a possessory interest in the property, and
in the absence of criminal proceedings, “the government bears the burden of establishing the
movant is not entitled to relief.” Tellez-Sanchez v. United States, 2014 U.S. Dist. LEXIS 92418 at
*3 (D. Ariz. 2014) (citing United States v. Chambers, 192 F. 3d 374, 376 (3d Cir. 1999)).
PARTIES
12. Plaintiff Rejhane Lazoja is a national of the United States and holder of a valid
United States Passport.
13. Defendant Kirstjen Nielsen is the Secretary of the Department of Homeland
Security (“DHS”). She supervises Defendants McAleeman and Adele Fasano and is sued in her
official capacity.
4
14. Defendant Kevin K. McAleeman is the Commissioner of CBP, which is an agency
within DHS. He supervises Defendant Adele Fasano, and is sued in his official capacity.
15. Defendant Adele Fasano is the CBP Port Director for Newark, and is sued in her
official capacity.
16. Defendants Jane Doe and John Does 1-2 are CBP Officers in Newark, and are sued
in their official capacities.
STATEMENT OF FACTS
17. On the evening of February 26, 2018, Plaintiff Rejhane Lazoja arrived at Newark
on a flight from Zurich, Switzerland with her six-year-old daughter. See Affidavit of Rejhane
Lazoja, dated August 22, 2018 (“Rejhane Aff.”), Ex. 1 ¶ 2.
18. While passing through CBP primary inspection at Newark, Ms. Lazoja used a self-
service Automated Passport Control kiosk, which prompts travelers to scan their passports, take a
photograph, and answer a series of questions verifying biographic and flight information. The
Kiosk provided Ms. Lazoja a receipt with an ‘X’ printed on her photograph. (Rejhane Aff. ¶ 3).
19. Ms. Lazoja was directed by a CBP Officer to move to a separate line at the
inspection point. (Rejhane Aff. ¶ 4).
20. Two CBP Officers asked Ms. Lazoja several questions including where she
traveled. (Rejhane Aff. ¶ 5).
21. Ms. Lazoja answered the questions. (Rejhane Aff. ¶ 6).
22. A male CBP Officer directed Ms. Lazoja to wait in a main seating area for several
minutes. (Rejhane Aff. ¶ 7).
23. A female CBP Officer (“Jane Doe”) called Ms. Lazoja to follow her to a small room
with CBP Officer John Doe 1 (“John Doe 1”). (Rejhane Aff. ¶ 8).
5
24. Jane Doe and John Doe 1 further questioned Ms. Lazoja about her travels, and
asked questions including whether she was ever a refugee. (Rejhane Aff. ¶ 9).
25. Ms. Lazoja is a Muslim woman and wears a hijab in accordance with her religious
beliefs. (Rejhane Aff. ¶ 10).
26. Ms. Lazoja’s Apple iPhone 6S Plus (“iPhone”) contained photos of her in a state of
undress without her hijab. (Rejhane Aff. ¶ 11).
27. Ms. Lazoja’s iPhone contained legal communications with the Council on
American-Islamic Relations, New York. (Rejhane Aff. ¶ 12).
28. Ms. Lazoja asked if she needed an attorney and whether the questions were a result
of her wearing a hijab. (Rejhane Aff. ¶ 13).
29. Jane Doe and John Doe 1 replied that there was no need to contact a lawyer.
(Rejhane Aff. ¶ 14).
30. Jane Doe and John Doe 1 asked Ms. Lazoja if she carried any electronic devices on
her person. (Rejhane Aff. ¶ 15).
31. Ms. Lazoja assented and produced the iPhone with accompanying subscriber
identity module (“SIM Card”). (Rejhane Aff. ¶ 16).
32. Jane Doe and John Doe 1 confiscated Ms. Lazoja’s iPhone and SIM Card. (Rejhane
Aff. ¶ 17).
33. Like many cell phones, the contents of Ms. Lazoja’s iPhone can only be accessed
by inputting an alphanumeric password. Without said password, such cell phones are commonly
described as being “locked,” and when said password is successfully entered, they are commonly
described as being “unlocked.”
6
34. John Doe 1 asked Ms. Lazoja to unlock the iPhone, but did not state a reason for
her to unlock the iPhone (Rejhane Aff. ¶ 18).
35. Since there was no stated reason for her to unlock the iPhone, Ms. Lazoja refused.
36. Jane Doe led Ms. Lazoja out of the small room. (Rejhane Aff. ¶ 20).
37. A male CBP Officer John Doe 2 (“John Doe 2”) asked Ms. Lazoja to unlock the
iPhone. (Rejhane Aff. ¶ 21).
38. Ms. Lazoja refused to unlock the iPhone. (Rejhane Aff. ¶ 22).
39. Jane Doe repeated her request that Ms. Lazoja unlock the iPhone, saying that she
understood the sensitivity of sharing personal pictures, including any showing Ms. Lazoja
undressed, without her hijab. (Rejhane Aff. ¶ 23).
40. Ms. Lazoja refused to unlock the iPhone. (Rejhane Aff. ¶ 24).
41. After accompanying Ms. Lazoja to the baggage claim area, Jane Doe opened and
searched Ms. Lazoja’s luggage, asking if she had more than $10,000 or more in her possession.
42. Jane Doe and John Does 1-2 did not return the iPhone. (Rejhane Aff. ¶ 26).
43. Jane Doe and John Does 1-2 provided Ms. Lazoja a receipt (No. 1199376) dated
February 26, 2018, documenting CBP’s seizure of her iPhone and SIM Card, and indicating the
iPhone and SIM Card were “Sent to DHS Lab.” (Rejhane Aff. ¶ 27); see Ex. A.
44. On July 6, 2018, Ms. Lazoja’s iPhone and SIM Card were returned to her counsel,
Jay Rehman by Michael Firing, Assistant Port Director for CBP at Newark. See Declaration by
Jay Rehman, Esq., dated August 23, 2018 (“Rehman Decl.”), ¶ 3.
7
45. Ms. Lazoja did not receive her iPhone and SIM Card back until more than 120 days
after they were taken.
46. On July 9, 2018, Ms. Lazoja, through counsel and via e-mail to Michael Firing,
confirmed receipt of the phone, and notified CBP that the phone contained pictures of her without
her hijab as well as privileged communications with her counsel. Ms. Lazoja requested that CBP:
confirm whether CBP made any copies of the Data, and to provide its legal basis for doing so;
expunge any copies of the Data; and confirm whether it has shared copies of the Data with any
third parties, including but not limited to, local, state, or federal law enforcement agencies.
(Rehman Decl. ¶ 4); see Ex. 2.
47. Ms. Lazoja has received no response to her July 9 request. (Rehman Decl. ¶ 5).
48. CBP’s policy Directive provides that “[u]nless extenuating circumstances exist, the
detention of devices ordinarily should not exceed five (5) days.” CBP Directive No. 3340-049A,
§ 5.4.1 (Jan. 4, 2018), available at https://www.cbp.gov/sites/default/files/assets/documents/2018-
Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf, Ex. 3.
49. Ms. Lazoja has not received any copies made of the Data, or any assurances that
Defendants, their agents or employees no longer possess copies of her Data. (Rehman Decl. ¶ 8).
50. Ms. Lazoja has not received any explanation for the seizure of the phone or for the
length of time she was deprived of her property, including whether any “extenuating
circumstances” existed. (Rehman Decl. ¶ 7).
51. On information and belief, CBP did not obtain a warrant to search, seize, or access
Ms. Lazoja’s property. (Rehman Decl. ¶ 7).
8
52. Defendants and their agents have a stated policy, custom, and practice of copying
digital information from devices detained at the border, and sharing that information with third
parties, including law enforcement agencies:
Sharing Generally. Nothing in this Directive limits the authority of CBP to share copies of
information contained in electronic devices (or portions thereof), which are retained in
accordance with this Directive, with federal, state, local, and foreign law enforcement
agencies to the extent consistent with applicable law and policy.
Ex. 3 at § 5.5.1.3.
53. Pursuant to CBP’s own policies, if Defendants, their agents and employees do not
assert probable cause to seize a device or the information it contains, “any copies of the information
held by CBP must be destroyed.” Ex. 3 at § 5.4.1.2. “Upon this determination, the copy of the
information will be destroyed as expeditiously as possible, but no later than seven (7) days after
such determination unless circumstances require additional time, which must be approved by a
supervisor and documented in an appropriate CBP system and which must be no later than twenty-
one (21) days after such determination.” Id.
54. Ms. Lazoja has not received any assurances that Defendants, their agents or
employees have not shared her Data, including privileged communications, with third parties.
(Rehman Decl. ¶ 8).
ARGUMENT
I. The Fourth Amendment Requires a Warrant Supported by Probable Cause to

Search, Seize, or Copy Digital Data Storage Devices, or Share Copies of the
Contents with Third Parties
55. The Fourth Amendment establishes that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
9
Const. amend. IV. The Supreme Court recently reiterated that “the ultimate touchstone of the
Fourth Amendment is reasonableness” and that “reasonableness generally requires the obtaining
of a judicial warrant.” Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v.
Stuart, 547 U.S. 398, 403 (2006); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)).
Although border searches have been recognized as one exception to the warrant requirement,
United States v. Ramsey, 431 U.S. 606, 620 (1977), “the exception is not limitless.” Alasaad v.
Nielsen, 2018 U.S. Dist. LEXIS 78783 *43 (D. Mass. May 9, 2018). “Border searches must still
be ‘reasonable,’ and the Court must still—as with searches conducted in the interior—balance ‘the
sovereign’s interests’ with the privacy interests of the individual.” Id. (citing United States v.
Montoya de Hernandez, 473 U.S. 531, 539 (1985). Searches and seizures of digital devices present
new questions in the border search analysis. Id. at *53.
56. The Supreme Court has repeatedly held, including recently in Carpenter, that
warrantless invasions of cell phones face heightened Fourth Amendment scrutiny. Cell phones
“are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars
might conclude they were an important feature of human anatomy.” Riley 134 S. Ct. at 2484; see
also Carpenter v. United States, 585 U.S. ___, 2018 U.S. LEXIS 3844 *14-15 (2018) (noting the
Court has kept “attention to Founding-era understandings in mind when applying the Fourth
Amendment to innovations in surveillance tools” such as with “the vast store of sensitive
information on a cell phone”). In Riley, a near-unanimous court held that individual’s privacy
interests outweighed any legitimate government interests in warrantless cell phone searches
incident-to-arrest, since “cell phones, as a category, implicate privacy concerns far beyond those
implicated by the search of a cigarette pack, a wallet, or a purse.” 134 S. Ct. at 2488-89. “Cell
phones differ in both a quantitative and a qualitative sense from other objects that might be kept
10
on an arrestee’s person.” Id. at 2489. The Court described how individuals cannot “lug around
every piece of mail they have received for the past several months, every picture they have taken,
or every book or article they have read,” and that the “sum of an individual’s private life can be
reconstructed through a thousand photographs.” Id. A person’s browsing history and location
information “can form a revealing montage of the user’s life.” Id. at 2490. Importantly, “Riley
opens up a doctrinal path for courts to reconsider whether to extend the border search exception to
the warrant requirement . . . to searches of digital information.” Thomas Mann Miller, Digital
Border Searches After Riley v. California, 90 Wash. L. Rev. 1943, 1947 (2015). Such heightened
scrutiny of phone searches is even more urgent after Carpenter.
57. In light of Riley, some courts have already limited the scope of searches of digital
devices pursuant to the border search exception. Recently, the U.S. District Court for the District
of Massachusetts applied Riley to the border search context as part of ongoing litigation under the
First and Fourth Amendments brought by individuals whose devices were searched and seized at
the border. In that case, the court explained that “exceptions to the warrant requirement do not
exist in isolation; rather, they are all part of Fourth Amendment jurisprudence.” Alasaad, 2018
U.S. Dist. LEXIS 78783 at *53. The court similarly scrutinized the applicability of the border
search exemption in the digital context, that “[a]lthough a warrant [requirement] might ‘have an
impact on the ability of law enforcement to combat crime,” [Riley, 134 S. Ct. at 2493], it is unclear
. . . the extent to which such impediment justifies applying the border search exception to electronic
devices.” Alasaad at *62. On those grounds, the court in Alasaad found that the plaintiffs plausibly
alleged a Fourth Amendment claim against both the search and the seizure of their devices.
58. Several other Federal courts have applied the reasoning of Riley to narrow the
border search exception in the context of searches of digital devices such as cell phones. See, e.g.,
11
United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (granting motion to suppress
documents obtained from warrantless search of the phone of an outbound passenger under Riley);
Janfeshan v. United States Customs & Border Prot., 2017 U.S. Dist. LEXIS 151058 (S.D.N.Y.
2017) (denying motion to dismiss a Fourth Amendment claim regarding a forensic cell phone
search at the border); United States v. Kolsuz, 890 F.3d 133, 146-47 (4th Cir. 2018) (“After Riley,
we think it is clear that a forensic search of a digital phone must be treated as a nonroutine border
search, requiring some form of individualized suspicion.”); United States v. Kim, 103 F. Supp. 3d
32, 54-58 (D.D.C. 2015) (“[T]he fact that the Supreme Court has specifically likened the border
search warrant exception to the search incident to arrest exception reinforces the Court's view that
an analysis similar to the one in Riley should be undertaken here.”). Note that these cases predate
the June 2018 decision in Carpenter, where the Supreme Court further emphasized the heightened
privacy interests implicated by cell phones, specifically through providing law enforcement access
to cell phone location data.
59. In Kim, where DHS agents seized a laptop computer at Los Angeles International
Airport and later sent it to a laboratory to be copied and searched, the district court found that the
lengthy post-seizure retention of a laptop at a second site, outside the airport, “did not possess the
characteristics of a border search or other regular inspection procedures,” and that it “more
resembled the common nonborder search based on individualized suspicion, which must be
prefaced by the usual warrant and probable cause standards.” Id. at 58 (citing United States v.
Brennan, 538 F.2d 711, 716 (5th Cir. 1976)). The court in Kim questioned whether the seizure and
imaging of a laptop at the border “can accurately be characterized as a border search at all.” Id. at
57.
12
60. While noting that the characteristics of the seizure and search of the digital device
triggered a warrant requirement, the court found that in the absence of a warrant, there was neither
probable cause, nor even reasonable suspicion of ongoing or imminent criminal activity for the
search:
Considering all of the facts and authorities set forth above, then, the Court finds, under the
totality of the unique circumstances of this case, that the imaging and search of the entire
contents of Kim's laptop, aided by specialized forensic software, for a period of unlimited
duration and an examination of unlimited scope, for the purpose of gathering evidence in
a pre-existing investigation, was supported by so little suspicion of ongoing or imminent
criminal activity, and was so invasive of Kim's privacy and so disconnected from not only
the considerations underlying the breadth of the government's authority to search at the
border, but also the border itself, that it was unreasonable.
Id. at 59. Importantly, in Kim the plaintiff was under investigation for alleged past
criminal activity, but that did not even give rise to reasonable suspicion or justify in any way the
high intrusiveness of the search and seizure.
61. The Supreme Court recently expanded the categorically heightened privacy
interests in data located on cell phones, specifically addressing cell phones’ location data. Location
data consists of the historic or contemporaneous geographic location of a cell phone. Cell phones
store or provide location data in numerous ways, and when obtained, it enables the government to
achieve “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
Carpenter, 2018 U.S. LEXIS 3844 at *23. Cell phone owners’ privacy interest in location data is
so strong that transmission to a third party did not vitiate Fourth Amendment protections, as is
typically mandated by the third-party doctrine. Id. at *20.
62. Therefore, without individualized criminal suspicion, the off-site search of an
electronic device taken at a border is unconstitutional. See United States v. Cortez, 449 U.S. 411,
417-18 (1981) (holding that reasonable suspicion requires “a particularized and objective basis for
suspecting the particular person stopped of criminal activity”); see also Terry v. Ohio, 392 U.S. 1
13
(1968) (holding that reasonable suspicion requires “specific and articulable facts” that criminal
activity “may be afoot”). No such suspicion of ongoing or imminent criminal activity existed in
the case of Ms. Lazoja giving rise to reasonable suspicion to search and seize her property.
Consequently, neither was there probable cause, nor a warrant. Therefore, the search and seizure
of Ms. Lazoja’s property violated her rights under the Fourth Amendment.
II. The Length of Time Property is Detained Raises a Separate Fourth Amendment Inquiry
63. Even if CBP could constitutionally seize Ms. Lazoja’s property, which it could not,
CBP’s impermissibly-delayed return of said property, and failure to return her Data, constitutes an
independent violation of the Fourth Amendment. Prolonged detentions of property must be
reasonable for their duration. United States v. Place, 462 U.S. 696, 708-10 (1983) (holding that
the “length of the detention”—ninety minutes—of an individual’s luggage gave rise to a seizure
requiring probable cause). Specifically, even if CBP’s warrantless, suspicionless seizure and
search of an electronic device is initially justifiable pursuant to CBP’s narrowly-defined border
search authority, the length of time a device is held can give rise to a Fourth Amendment claim.
See House v. Napolitano, 2012 U.S. Dist. LEXIS 42297 at *31 (D. Mass. Mar. 28, 2012) (holding
that a forty-nine-day warrantless border detention of a locked laptop computer, computer storage
medium, and digital camera raised a plausible Fourth Amendment claim even where the claim
regarding the search itself is dismissed).
III. Any Retention of Data, or Sharing of Data with Third Parties, Without a Warrant
Supported by Probable Cause, Violates the Fourth Amendment
64. Here, CBP retained Ms. Lazoja’s cell phone—an indispensable companion in
modern society—without a warrant for more than 120 days. CBP has not returned any copies it
has made of Ms. Lazoja’s Data, which contains personal photos of her in an exposed state without
her hijab, as well as attorney-client communications. Neither has CBP affirmed that it has
14
destroyed any copies made of Ms. Lazoja’s Data, and not transmitted the Data to any third parties.
There is no possible justification for this. Similarly, there is no justification for any warrantless
duplication or transmission of Ms. Lazoja’s Data. Such duplication or transmission of the Data
would require a warrant supported by probable cause.
CONCLUSION
65. Plaintiff Rejhane Lazoja respectfully asks this Court to order Defendants to return
her Data, to expunge any copies made of the Data, to disclose all third parties who received and/or
retain copies, partial or complete, of the Data, and to provide information about the basis for the
seizure and retention of the property. Further, Ms. Lazoja respectfully asks that this Court declare
that Defendants, their agents and employees violated the Fourth Amendment of the U.S.
Constitution through their policy of searching, seizing, detaining, copying, and sharing with third
parties digital storage devices without a warrant. Finally, Ms. Lazoja respectfully asks that this
Court enjoin Defendants from its practice of searching and seizing electronic storage devices
without a warrant supported by probable cause.

[Newark, New Jersey]
By: ___s/ Jay Rehman_____________

Jay Rehman
jRehman@cair.com
(908) 668-5900
15
RELATIONS NEW YORK
Albert Fox Cahn

aCahn@cair.com
Carey Shenkman
legal@ny.cair.com
(646) 665-7599
16

REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-_______________
v.

PROTECTION.
Defendants.
PROPOSED ORDER GRANTING PLAINTIFF’S MOTION FOR RETURN OF

PROPERTY PERSUANT TO RULE 41(g) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE
THIS MATTER having come before this Court on Motion brought by Plaintiff Rejhane
Lajoza, pursuant to Federal Rule of Criminal Procedure 41(g), and this Court having considered
all arguments and submissions proffered by the parties in respect of this Motion, and for good
cause having been shown, it is
1
ON THIS _________ day of ______________________, 2018, hereby:
ORDERED that Plaintiff's Motion for Return of Property is hereby GRANTED; and it is
ORDERED that Defendants return all copies of data copied from Plaintiff's iPhone 6S
Plus and accompanying SIM Card which were seized by Defendants’ agents and employees from
Plaintiff at Newark Liberty International Airport on February 26, 2018, and expunge any copies
of data retained by Defendants, their agents or employees; and it is
ORDERED that Defendants notify Plaintiff of the reasons for detaining her property and
accompanying data, as well as identify any third parties or agencies with whom Defendants, their
agents or employees shared Plaintiff’s data; and it is
DECLARED that the policy of Defendants, their agents and employees of searching,
seizing, detaining, copying, and sharing with third parties digital storage devices without a warrant
is unauthorized by statute and constitutes a violation of the Fourth Amendment of the U.S.
Constitution; and it is
DECLARED that accordingly, Defendants, their agents and employees violated their duty
to Plaintiff under the Fourth Amendment of the U.S. Constitution; and it is
FURTHER ORDERED that Defendants, their agents and employees, are enjoined from
searching, seizing, detaining, copying, and sharing with third parties digital storage devices
without a warrant.
________________________
U.S.D.J.
2

REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-__________
v.

PROTECTION.
Defendants.
DECLARATION OF SERVICE
Jay Rehman, Esq., pursuant to 28 U.S.C. § 1746, declares under penalty of perjury that the
foregoing is true and correct:
1. I am an attorney at law in the State of New Jersey and the Legal Director of the
Council on American-Islamic Relations, New Jersey, which has an office at 4475 S. Clinton Ave.,
Suite 202, South Plainfield, New Jersey 07080. I am admitted to practice before this Court.
1
2. On August 23, 2018, I caused to be filed Notice of Motion, Plaintiff’s Brief in
Support of Motion For Return of Property Under Federal Rule of Criminal Procedure 41(g), and
Declaration of Jay Rehman, Esq., dated August 23, 2018, annexing: Affidavit of Rejhane Lazoja
dated August 22, 2018; Notice to U.S. Customs and Border Protection (“CBP”), dated July 9,
2018; and CBP Policy Directive, dated January 4, 2018, as well as a proposed form of Order and
this Declaration of Service with
Clerk, United States District Court, District of New Jersey

M.L. King, Jr. Federal Building & U.S. Courthouse
50 Walnut Street
Newark, NJ 07102
via ECF and served a copy on:
Office of the General Counsel

United States Department of Homeland Security
245 Murray Lane, SW
Mail Stop 0485
Washington, DC, 20528-0485
U.S. Attorney's Office

Peter W. Rodino, Jr. Federal Building
970 Broad Street, 7th Floor
Newark, NJ 07102
via Certified U.S. Mail.
By: ___s/ Jay Rehman_____________

Jay Rehman
jRehman@cair.com
(908) 668-5900
Attorney for Plaintiff
2

REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-______________
v.

PROTECTION.
Defendants.
DECLARATION OF JAY REHMAN, ESQ. IN SUPPORT OF PLAINTIFF’S MOTION

FOR RETURN OF PROPERTY
Jay Rehman, Esq., pursuant to 28 U.S.C. § 1746, declares under penalty of perjury that
the foregoing is true and correct:
1. I am an attorney at law in the State of New Jersey and the Legal Director of the
Council on American-Islamic Relations, New Jersey, which has an office at 4475 S. Clinton Ave.,
Suite 202, South Plainfield, New Jersey 07080. I am admitted to practice before this Court.
1
2. On August 22, 2018, Plaintiff Rejhane Lazoja swore an Affidavit in Support of Her
Motion for Return of Property. A true and correct copy of that Affidavit, along with its Exhibit A,
is annexed hereto as Exhibit 1.
3. On July 6, 2018, I met with Michael Firing, Assistant Port Director for U.S.
Customs and Border Protection (“CBP”) at Newark, to receive Plaintiff Rejhane Lazoja’s iPhone
and SIM Card.
4. On July 9, 2018, I e-mailed Michael Firing to confirm receipt of the phone, and
notify CBP that the phone contained pictures of Ms. Lazoja without her hijab, as well as privileged
legal communications with the Council on American-Islamic Relations, New York. The message
requested that CBP: confirm whether it made copies of Ms. Lazoja’s data from the iPhone, and if
so, its legal basis for doing so; expunge any copies of the data; and confirm whether CBP shared
copies of the data with any third parties including law enforcement agencies. A true and correct
copy of that e-mail is attached as Exhibit 2.
5. As of August 23, 2018, I have not received a response to the July 9, 2018 e-mail.
6. On August 16, 2018, I accessed CBP Directive No. 3340-049A, dated January 4,
2018, which CBP has made available online at the following URL:
https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-
Border-Search-of-Electronic-Media-Compliant.pdf. A true and correct copy of that Directive is
attached as Exhibit 3.
7. Defendants in this matter have not articulated to me a basis for reasonable suspicion
for seizing the phone, nor probable cause, nor have they produced to me a warrant to search or
seize Ms. Lazoja’s iPhone and personal data. Defendants have not articulated to me a basis for the
2
length of time that Ms. Lazoja’s was deprived of her iPhone, or whether any extenuating
circumstances existed.
8. Defendants in this matter have not provided to me any assurances that Defendants,
their agents or employees do not possess copies of data obtained from Ms. Lazoja’s iPhone and
SIM Card, or that they have not shared any data with third parties.
By: _____s/ Jay Rehman_______________

Jay Rehman
jRehman@cair.com
(908) 668-5900
(646) 665-7599
Attorney for Plaintiff
3

REJHANE LAZOJA,
Plaintiff,
Case No. 18-cv-_______________
v.

FASANO, in his official capacity as Port
PROTECTION.
Defendants.
AFFIDAVIT OF REJHANE LAZOJA IN SUPPORT OF HER MOTION FOR RETURN OF

PROPERTY
Rejhane Lazoja, of full age, being duly sworn, upon her oath according to law, deposes
and says:
1. I am the Plaintiff in this suit, and am familiar with the facts set forth herein. I submit
this affidavit in support of my Motion for Return of Property Under Federal Rule of Criminal
Procedure 41(g).
1
2. On the evening of February 26, 2018, I arrived at Newark Liberty International
Airport on a flight from Zurich, Switzerland with my six-year-old daughter.
3. While passing through primary
inspection at Newark, I used a self-service Automated Passport Control kiosk, which prompts
travelers to scan their passports, take a photograph, and answer a series of questions verifying
biographic and flight information. The k my
photograph.
4. I was directed by a CBP Officer to move to a separate line at the inspection point.
5. Two CBP Officers asked me several questions including where I traveled to.
6. I answered the questions.
7. A male CBP Officer escorted me to wait in a main seating area for several minutes.
8. A female CBP Officer Jane Doe called me to follow her to a small room with
9. Jane Doe and John Doe 1 further questioned me about my travels and asked
questions such as whether or not I was ever a refugee.
10. I am a practicing Muslim and wear a hijab (a headscarf) in accordance with my
religious beliefs. Pursuant to my sincerely held beliefs, I cannot be seen in a state of undress by
men who are not family members.
11. My cell phone contained photos of me in a state of undress without my hijab.
12. My cell phone contained legal communications with the Council on American-
Islamic Relations, New York.
2
13. I asked if I needed an attorney and whether the questions were a result of my
wearing a hijab.
14. Jane Doe and John Doe 1 replied that there was no need to contact a lawyer.
15. Jane Doe and John Doe 1 asked me if I carried any electronic devices on my person.
16. I assented and produced my iPhone which contained a
subscriber identity m SIM Card .
17. Jane Doe and John Doe 1 confiscated my iPhone and accompanying SIM Card.
18. John Doe 1 asked me to unlock my iPhone, but did not state a reason for me to
unlock my iPhone.
19. Since there was no stated reason for me to unlock my iPhone, I refused.
20. Jane Doe led me out of the small room.
21. me to unlock my iPhone.
22. I refused to unlock my iPhone.
23. Jane Doe repeated her request that I unlock my iPhone, and said that she understood
the sensitivity of sharing personal pictures, including any showing me undressed, without my
hijab.
24. I refused to unlock my iPhone.
25. After accompanying me to the baggage claim area, Jane Doe opened and searched
my luggage, asking if I had $10,000 or more in my possession.
26. Jane Doe and John Does 1-2 did not return my iPhone to me.
27. Jane Doe and John Does 1-2 provided me a receipt (No. 1199376) dated February
26, 2018. A true and correct copy of the receipt with my personal identifiers redacted is annexed
hereto as Exhibit A.
3
Albert Cahn
From: Jay Rehman

Sent: Monday, July 9, 2018 9:53 AM
To: Albert Cahn; FIRING, MICHAEL B
Subject: Confirmation of Return of Seized Property
Attachments: 18.07.06 Rejhane Lazoja Signed Affidavit.pdf
Michael,
Good morning. Hope you had a great weekend.
Please see attached signed document by Ms. Rejhane Lazoja acknowledging her receipt of the phone.
Regards,
Jay Rehman | Civil Rights Attorney

CAIR New Jersey
4475 South Clinton Avenue, Suite 202
South Plainfield, NJ 07080
Phone: 908.668.5900 | Cell: 908.267.8898
Fax: 908-291-1367 | nj.cair.com
Disclaimer: This email may contain confidential and privileged material, including attachments, for the sole use of the
intended recipient(s) named above. Please do not review, use, copy, forward, or in any way distribute or disclose the
contents of this e-mail including any attachments unless you are the intended recipient(s) named above. If you are not
the intended recipient, or authorized to receive this message for the recipient, please contact the sender by reply email
and delete all copies of this message. This email does not by itself establish an attorney-client relationship, and may not
constitute legal advice.
1
U.S. CUSTOMS AND BORDER PROTECTION
CDP DIRECTIVE NO. 3340-049A DATE: January 4, 2018

ORIGINATING OFFICE: FO:TO
SUPERSEDES: Directive 3340-049
REVIEW DATE: January 2021
SUBJECT: BORDER SEARCH OF ELECTRONIC DEVICES
1 PURPOSE. To provide guidance and standard operating procedures for searching,

reviewing, retaining, and sharing information contained in computers, tablets, removable media,
disks, drives, tapes, mobile phones, cameras, music and other media players, and any other
communication, electronic, or digital devices subject to inbound and outbound border searches
by U.S. Customs and Border Protection (CBP). These searches are conducted in furtherance of
CBP's customs, immigration, law enforcement, and homeland security responsibilities and to
ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce
and administer.
These searches are part of CBP's longstanding practice and are essential to enforcing the law at
the U.S. border and to protecting border security. They help detect evidence relating to terrorism
and other national security matters, human and bulk cash smuggling, contraband, and child
pornography. They can also reveal information about financial and commercial crimes, such as
those relating to copyright, trademark, and export control violations. They can be vital to risk
assessments that otherwise may be predicated on limited or no advance information about a
given traveler or item, and they can enhance critical information sharing with, and feedback
from, elements of the federal government responsible for analyzing terrorist threat
information. Finally, searches at the border are often integral to a determination of an
individual's intentions upon entry and provide additional information relevant to admissibility
under the immigration laws.
2 POLICY
2.1 CBP will protect the rights of individuals against unreasonable search and seizure and
ensure privacy protections while accomplishing its enforcement mission.
2.2 All CBP Officers, Border Patrol Agents, Air and Marine Agents, Office of Professional
Responsibility Agents, and other officials authorized by CBP to perform border searches shall
adhere to the policy described in this Directive and any implementing policy memoranda or
musters.
-2
2.3 This Directive governs border searches of electronic devices - including any inbound or
outbound search pursuant to longstanding border search authority and conducted at the physical
border, the functional equivalent of the border, or the extended border, consistent with law and
agency policy. For purposes of this Directive, this excludes actions taken to determine ifa
device functions (e.g., turning a device on and off); or actions taken to determine if physical
contraband is concealed within the device itself; or the review of information voluntarily
provided by an individual in an electronic format (e.g., when an individual shows an e-ticket on
an electronic device to an Officer, or when an alien proffers information to establish
admissibility). This Directive does not limit CBP's authority to conduct other lawful searches of
electronic devices, such as those performed pursuant to a warrant, consent, or abandonment, or in
response to exigent circumstances; it does not limit CBP's ability to record impressions relating
to border encounters; it does not restrict the dissemination of information as required by
applicable statutes and Executive Orders.
2.4 ·This Directive does not govern searches of shipments containing commercial quantities
of electronic devices (e.g., an importation of hundreds oflaptop computers transiting from the
factory to the distributor).
2.5 This Directive does not supersede Restrictions on Importation ofSeditious Matter,
Directive 2210-001 A~ Seditious materials encountered through a border search should continue
to be handled pursuant to Directive 2210-001 A or any successor thereto.
2.6 This Directive does not supersede Processing Foreign Diplomatic and Consular
Officials, Directive 3340-032. Diplomatic and consular officials encountered at the border, the
functional equivalent of the border (FEB), or extended border should continue to be processed
pursuant to Directive 3340-032 or any successor thereto.
2.7 This Directive applies to searches performed by or at the request of CBP. With respect to
searches performed by U.S. Immigration and Customs Enforcement (ICE), Homeland Security
Investigations (HSI) Special Agents exercise concurrently-held border search authority that is
covered by ICE's own policy and procedures. When CBP detains, seizes, or retains electronic
devices, or copies of information therefrom, and conveys such to ICE for analysis, investigation,
and disposition (with appropriate documentation), the conveyance to ICE is not limited by the
terms of this Directive, and ICE policy will apply upon receipt by ICE.
3 DEFINITIONS
3.1 Officer. A Customs and Border Protection Officer, Border Patrol Agent, Air and Marine
Agent, Office of Professional Responsibility Special Agent, or any other official of CBP
authorized to conduct border searches.
3.2 Electronic Device. Any device that may contain information in an electronic or digital
form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication
devices, cameras, music and other media players.
-3
3.3 Destruction. For electronic records, destruction is deleting, overwriting, or degaussing in

compliance with CBP Information Systems Security Policies and Procedures Handbook, CIS HB
1400-0SC.
4 AUTHORITY/REFERENCES. 6 U.S.C. §§ 122, 202, 211; 8 U.S.C. §§ 1225, 1357,

and other pertinent provisions of the immigration laws and regulations; 19 U.S.C. §§ 482, 507,
1461, 1496, 1581, 1582, 1589a, 1595a(d), and other pertinent provisions of customs laws and
regulations; 31 U.S.C. § 5317 and other pertinent provisions relating to monetary instruments; 22
U.S.C. § 401 and other laws relating to exports; Guidelines for Detention and Seizures of
Pornographic Materials, Directive 4410-001 B; Disclosure of Business Confidential Information
to Third Parties, Directive 1450-015; Accountability and Control of Custody Receipt for
Detained and Seized Property (CF6051 ), Directive 5240-005.
The plenary authority of the Federal Government to conduct searches and inspections of persons
and merchandise crossing our nation's borders is well-established and extensive; control of the
border is a fundamental principle of sovereignty. "[T]he United States, as sovereign, has the
inherent authority to protect, and a paramount interest in protecting, its territorial integrity."
United States v. Flores-Montano, 541 U.S. 149, 153 (2004). "The Government's interest in
preventing the entry of unwanted persons and effects is at its zenith at the international border.
Time and again, [the Supreme Court has] stated that 'searches made at the border, pursuant to the
longstanding 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."' Id. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, 616
( 1977)). "Routine searches of the persons and effects of entrants [into the United States] 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). Additionally, the authority to conduct border
searches extends not only to persons and merchandise entering the United States, but applies
equally to those departing the country. See, e.g., United States v. Bourne/hem, 339 F.3d 414,
422-23 (6th Cir. 2003); United States v. Odutayo, 406 F.3d 386, 391-92 (5th Cir. 2005); United
States v. Oriakhi, 57 F.3d 1290, 1296-97 (4th Cir. 1995); United States v. Ezeiruaku, 936 F.2d
136, 143 (3d Cir. 1991); United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985); United
States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983).
As a constitutional matter, border search authority is premised in part on a reduced expectation

of privacy associated with international travel. See Flores-Montano, 541 U.S. at 154 (noting that
"the expectation of privacy is less at the border than it is in the interior"). Persons and
merchandise encountered by CBP at the international border are not only subject to inspection
under U.S. law, they also have been or will be abroad and generally subject to the legal
authorities of at least one other sovereign. See Boumelhem, 339 F.3d at 423.
In addition to longstanding federal court precedent recognizing the constitutional authority of the
U.S. government to conduct border searches, numerous federal statutes and regulations also
authorize CBP to inspect and examine all individuals and merchandise entering or departing the
United States, including all types of personal property, such as electronic devices. See, e.g., 8
U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a; see also
19 C.F.R. § 162.6 ("All persons, baggage, and merchandise arriving in the Customs territory of
-4
the United States from places outside thereof are liable to inspection and search by a Customs
officer."). These authorities support CBP's enforcement and administration of federal law at the
border and facilitate the inspection of merchandise and people to fulfill the immigration,
customs, agriculture, and counterterrorism missions of the Department. This includes, among
other things, the responsibility to "ensure the interdiction of persons and goods illegally entering
or exiting the United States"; "detect, respond to, and interdict terrorists, drug smugglers and
traffickers, human smugglers and traffickers, and other persons who may undermine the security
of the United States"; "safeguard the borders of the United States to protect against the entry of
dangerous goods"; "enforce and administer all immigration laws"; "deter and prevent the illegal
entry of terrorists, terrorist weapons, persons, and contraband"; and "conduct inspections at []
ports of entry to safeguard the United States from terrorism and illegal entry of persons."
6 u.s.c. §' 211.
CBP must conduct border searches of electronic devices in accordance with statutory and
regulatory authorities and applicable judicial precedent. CBP' s broad authority to conduct
border searches is well-established, and courts have rejected a categorical exception to the border
search doctrine for electronic devices. Nevertheless, as a policy matter, this Directive imposes
certain requirements, above and beyond prevailing constitutional and legal requirements, to
ensure that the authority for border search of electronic devices is exercised judiciously,
responsibly, and consistent with the public trust.
5 PROCEDURES
5.1 Border Searches
5.1.1 Border searches may be performed by an Officer or other individual authorized to

perform or assist in such searches (e.g., under 19 U.S.C. § 507).
5 .1.2 Border searches of electronic devices may include searches of the information stored on
the device when it is presented for inspection or during its detention by CBP for an inbound or
outbound border inspection. The border search will include an examination of only the
information that is resident upon the device and accessible through the device's operating system
or through other software, tools, or applications. Officers may not intentionally use the device to
access information that is solely stored remotely. To avoid retrieving or accessing information
stored remotely and not otherwise present on the device, Officers will either request that the
traveler disable connectivity to any network (e.g., by placing the device in airplane mode), or,
where warranted by national security, law enforcement, officer safety, or other operational
considerations, Officers will themselves disable network connectivity. Officers should also take
care to ensure, throughout the course of a border search, that they do not take actions that would
make any changes to the contents of the device.
5.1.3 Basic Search. Any border search of an electronic device that is not an advanced search,
as described below, may be referred to as a basic search. In the course of a basic search, with or
without suspicion, an Officer may examine an electronic device and may review and analyze
information encountered at the border, subject to the requirements and limitations provided
herein and applicable law. ·
-5
5 .1.4 Advanced Search. An advanced search is 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 device, but to review, copy, and/or analyze its contents. In instances in which
there is reasonable suspicion of activity in violation of the laws enforced or administered by
CBP, or in which there is a national security concern, and with supervisory approval at the Grade
14 level or higher (or a manager with comparable responsibilities), an Officer may perform an
advanced search of an electronic device. Many factors may create reasonable suspicion or
constitute a national security concern; examples include the existence of a relevant national
security-related lookout in combination with other articulable factors as appropriate, or the
presence of an individual on a government-operated and government-vetted terrorist watch list.
5.1.5 Searches of electronic devices will be documented in appropriate CBP systems, and
advanced searches should be conducted in the presence of a supervisor. In circumstances where
operational considerations prevent a supervisor from remaining present for the entire advanced
search, or where supervisory presence is not practicable, the examining Officer shall, as soon as
possible, notify the appropriate supervisor about the search and any results thereof.
5 .1.6 Searches of electronic devices should be conducted in the presence of the individual
whose information is being examined unless there are national security, law enforcement, officer
safety, or other operational considerations that make it inappropriate to permit the individual to
remain present. Permitting an individual to remain present during a search does not necessarily
mean that the individual shall observe the search itself. If permitting an individual to observe the
search could reveal law enforcement techniques or potentially compromise other operational
considerations, the individual will not be permitted to observe the search itself.
5.2 Review and Handling of Privileged or Other Sensitive Material
5 .2.1 Officers encountering information they identify as, or that is asserted to be, protected by
the attorney-client privilege or attorney work product doctrine shall adhere to the following
procedures.
5.2.1.1 The Officer shall seek clarification, if practicable in writing, from the individual
asserting this privilege as to specific files, file types, folders, categories of files, attorney or client
names, email addresses, phone numbers, or other particulars that may assist CBP in identifying
privileged information.
5 .2.1.2 Prior to any border search of files or other materials over which a privilege has been
asserted, the Officer will contact the CBP Associate/Assistant Chief Counsel office. In
coordination with the CBP Associate/Assistant Chief Counsel office, which will coordinate with
the U.S. Attorney's Office as needed, Officers will ensure the segregation of any privileged
material from other information examined during a border search to ensure that any privileged
material is handled appropriately while also ensuring that CBP accomplishes its critical border
security mission. This segregation process will occur through the establishment and employment
of a Filter Team composed of legal and operational representatives, or through another
appropriate measure with written concurrence of the CBP Associate/Assistant Chief Counsel
office.
-6
5.2.1.3 At the completion of the CBP review, unless any materials are identified that indicate an
imminent threat to homeland security, copies of materials maintained by CBP and determined to
be privileged will be destroyed, except for any copy maintained in coordination with the CBP
Associate/Assistant Chief Counsel office solely for purposes of complying with a litigation hold
or other requirement of law.
5.2.2 Other possibly sensitive information, such as medical records and work-related
information carried by journalists, shall be handled in accordance with any applicable federal law
and CBP policy. Questions regarding the review of these materials shall be directed to the CBP
Associate/Assistant Chief Counsel office, and this consultation shall be noted in appropriate CBP
systems.
5 .2.3 Officers encountering business or commercial information in electronic devices shall treat
such information as business confidential information and shall protect that information from
unauthorized disclosure. Depending on the nature of the information presented, the Trade
Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern or restrict the
handling of the information. Any questions regarding the handling of business or commercial
information may be directed to the CBP Associate/Assistant Chief Counsel office or the CBP
Privacy Officer, as appropriate.
5.2.4 Information that is determined to be protected by law as privileged or sensitive will only
be shared with agencies or entities that have mechanisms in place to protect appropriately such
information, and such information will only be shared in accordance with this Directive.
5.3 Review and Handling of Passcode-Protected or Encrypted Information
5.3.1 Travelers are obligated to present electronic devices and the information contained
therein in a condition that allows inspection ofthe device and its contents. If presented with an
electronic device containing information that is protected by a passcode or encryption or other
security mechanism, an Officer may request the individual's assistance in presenting the
electronic device and the information contained therein in a condition that allows inspection of
the device and its contents. Passcodes or other means of access may be requested and retained as
needed to facilitate the examination of an electronic device or information contained on an
electronic device, including information on the device that is accessible through software
applications present on the device that is being inspected or has been detained, seized, or retained
in accordance with this Directive.
5.3.2 Passcodes and other means of access obtained during the course of a border inspection
will only be utilized to facilitate the inspection of devices and information subject to border
search, will be deleted or destroyed when no longer needed to facilitate the search of a given
device, and may not be utilized to access information that is only stored remotely.
5.3.3 If an Officer is unable to complete an inspection of an electronic device because it is

protected by a passcode or encryption, the Officer may, in accordance with section 5.4 below,
detain the device pending a determination as to its admissibility, exclusion, or other disposition.
-7
5.3.4 Nothing in this Directive limits CBP's ability, with respect to any device pre~ented in a
manner that is not readily accessible for inspection, to seek technical assistance, or to use
external equipment or take other reasonable measures, or in consultation with the CBP
Associate/Assistant Chief Counsel office to pursue available legal remedies, to render a device in
a condition that allows for inspection of the device and its contents.
5.4 Detention and Review in Continuation of Border Search of Information
5.4.l Detention and Review by CBP
An Officer may detain electronic devices, or copies of information contained therein, for a brief,
reasonable period of time to perform a thorough border search. The search may take place on
site or at an off-site location, and is to be completed as expeditiously as possible. Unless
extenuating circumstances exist, the detention of devices ordinarily should not exceed five (5)
days. Devices must be presented in a manner that allows CBP to inspect their contents. Any
device not presented in such a manner may be subject to exclusion, detention, seizure, or other
appropriate action or disposition.
5.4.1.1 Approval of and Time Frames for Detention. Supervisory approval is required for
detaining electronic devices, or copies of information contained therein, for continuation of a
border search after an individual's departure from the port or other location of detention. Port
Director; Patrol Agent in Charge; Director, Air Operations; Director, Marine Operations; Special
Agent in Charge; or other equivalent level manager approval is required to extend any such
detention beyond five (5) days. Extensions of detentions exceeding fifteen (15) days must be
approved by the Director, Field Operations; Chief Patrol Agent; Director, Air Operations;
Director, Marine Operations; Special Agent in Charge; or other equivalent manager, and may be
approved and re-approved in increments of no more than seven (7) days. Approvals for
detention and any extension thereof shall be noted in appropriate CBP systems.
5.4.1.2 Destruction. Except as noted in section 5.5 or elsewhere in this Directive, if after
reviewing the information pursuant to the time frames discussed in section 5.4, there is no
probable cause to seize the device or the information contained therein, any copies of the
information held by CBP must be destroyed, and any electronic device must be returned. Upon
this determination, the copy of the information will be destroyed as expeditiously as possible, but
no later than seven (7) days after such determination unless circumstances require additional
time, which must be approved by a supervisor and documented in an appropriate CBP system
and which must be no later than twenty-one (21) days after such determination. The destruction
shall be noted in appropriate CBP systems.
5.4.1.3 Notification of Border Search. When a border search of information is conducted on an

electronic device, the individual subject to search will be notified of the purpose and authority
for such search, how the individual may obtain more information on reporting concerns about
their search, and how the individual may seek redress from the agency if he or she feels
aggrieved by a search. If the Officer or other appropriate CBP official determines that the fact of
conducting this search cannot be disclosed to the individual transporting the device without
-8
impairing national security, law enforcement, officer safety, or other operational interests,
notification may be withheld.
5.4.1.4 Custody Receipt. If CBP determines it is necessary to detain temporarily an electronic

device to continue the search, the Officer detaining the device shall issue a completed Form
6051 D to the individual prior to the individual's departure.
5.4.2 Assistance
Officers may request assistance that may be needed to access and search an electronic device and
the information stored therein. Except with respect to assistance sought within CBP or from
ICE, the following subsections of 5.4.2 govern requests for assistance.
5.4.2.1 Technical Assistance. Officers may sometimes need technical assistance to render a
device and its contents in a condition that allows for inspection. For example, Officers may
encounter a device or information that is not readily accessible for inspection due to encryption
or password protection. Officers may also require translation assistance to inspect information
that is in a foreign language. In such situations, Officers may convey electronic devices or
copies of information contained therein to seek technical assistance.
5.4.2.2 Subject Matter Assistance- With Reasonable Suspicion or National Security Concern.
Officers may encounter information that requires referral to subject matter experts to determine
the meaning, context, or value of information contained therein as it relates to the laws enforced
or administered by CBP. Therefore, Officers may convey electronic devices or copies of
information contained therein for the purpose of obtaining subject matter assistance when there
is a national security concern or they have reasonable suspicion of activities in violation of the
laws enforced or administered by CBP.
5.4.2.3 Approvals for Seeking Assistance. Requests for assistance require supervisory approval
and shall be properly documented and recorded in CBP systems. If an electronic device is to be
detained after the individual's departure, the Officer detaining the device shall execute a Form
6051D and provide a copy to the individual prior to the individual's departure. All transfers of
the custody of the electronic device will be recorded on the Form 6051D.
5.4.2.4 Electronic devices should be transferred only when necessary to render the requested
assistance. Otherwise, a copy of data from the device should be conveyed in lieu of the device in
accordance with this Directive. ·
5.4.2.5 When an electronic device or information contained therein is conveyed for assistance,
the individual subject to search will be notified of the conveyance unless the Officer or other
appropriate CBP official determines, in consultation with the receiving agency or other entity as
appropriate, that notification would impair national security, law enforcement, officer safety, or
other operational interests. If CBP seeks assistance for counterterrorism purposes, if a relevant
national security-related lookout applies, or if the individual is on a government-operated and
government-vetted terrorist watch list, the individual will not be notified of the conveyance, the
existence of a relevant national security-related lookout, or his or her presence on a watch list.
-9
When notification is made to the individual, the Officer will annotate the notification in CBP
systems and on the Form 6051D.
5.4.3 Responses and Time for Assistance
5.4.3.1 Responses Required. Agencies or entities receiving a request for assistance in

conducting a border search are expected to provide such assistance as expeditiously as possible.
Where subject matter assistance is requested, responses should include all appropriate findings,
observations, and conclusions relating to the laws enforced or administered by CBP.
5.4.3.2 Time for Assistance. Responses from assisting agencies or entities are expected in an
expeditious manner so that CBP may complete the border search in a reasonable period of time.
Unless otherwise approved by the Director Field Operations; Chief Patrol Agent; Director, Air
Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager,
responses should be received within fifteen (15) days. If the assisting agency or entity is unable
to respond in that period of time, the Director Field Operations; Chief Patrol Agent; Director, Air
Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager
may permit extensions in increments of seven (7) days.
5.4.3.3 Revocation of a Request for Assistance. If at any time a CBP supervisor involved in a
request for assistance is not satisfied with the assistance provided, the timeliness of assistance, or
any other articulable reason, the request for assistance may be revoked, and the CBP supervisor
may require the as~isting agency or entity to return to CBP all electronic devices provided, and
any copies thereof, as expeditiously as possible, except as noted in 5 .5.2.3. Any such revocation
shall be documented in appropriate CBP systems. When CBP has revoked a request for
assistance because of the lack of a timely response, CBP may initiate the request with another
agency or entity pursuant to the procedures outlined in this Directive.
5.4.3.4 Destruction. Except as noted in section 5.5.1 below or elsewhere in this Directive, if
after reviewing information, probable cause to seize the device or the information from the
device does not exist, CBP will retain no copies of the information.
5.5 Retention and Sharing of Information Found in Border Searches
5.5.1 Retention and Sharing of Information Found in Border Searches
5.5.1.1 Retention with Probable Cause. Officers may seize and retain an electronic device, or
copies of information from the 4evice, when, based on a review ofthe electronic device
encountered or on other facts and circumstances, they determine there is probable cause to
believe that the device, or copy of the contents from the device, contains evidence of a violation
of law that CBP is authorized to enforce or administer.
5.5.1.2 Retention of Information in CBP Privacy Act-Compliant Systems. Without probable

cause to seize an electronic device or a copy of information contained therein, CBP may retain
only information relating to immigration, customs, and other enforcement matters if such
retention is consistent with the applicable system of records notice. For example, information
-10
collected in the course of immigration processing for the purposes of present and future
admissibility of an alien may be retained in the A-file, Central Index System, TECS, and/or E3
or other systems as may be appropriate and consistent with the policies governing such systems.
5.5.1.3 Sharing Generally. Nothing in this Directive limits the authority of CBP to share copies
of information ·contained in electronic devices (or portions thereof), which are retained in
accordance with this Directive, with federal, state, local, and foreign law enforcement agencies
to the extent consistent with applicable law and policy.
5.5.1.4 Sharing of Terrorism Information. Nothing in this Directive is intended to limit the
sharing of terrorism-related information to the extent the sharing of such information is
authorized by statute, Presidential Directive, or DHS policy. Consistent with 6 U.S.C. §
122(d)(2) and other applicable law and policy, CBP, as a component ofDHS, will promptly
share any terrorism information encountered in the course of a border search with entities of the
federal government responsible for analyzing terrorist threat information. In the case of such
terrorism information sharing, the entity receiving the information will be responsible for
providing CBP with all appropriate findings, observations, and conclusions relating to the laws
enforced by CBP. The receiving entity will be responsible for managing retention and
disposition of information it receives in accordance with its own legal authorities and
responsibilities.
5.5.1.5 Safeguarding Data During Storage and Conveyance. CBP will appropriately safeguard
information retained, copied, or seized under this Directive and during conveyance. Appropriate
safeguards include keeping materials in locked cabinets or rooms, documenting and tracking
copies to ensure appropriate disposition, and other safeguards during conveyance such as
password protection or physical protections. Any suspected loss or compromise of information
that contains personal data retained, copied, or seized under this Directive must be immediately
reported to the CBP Office of Professional Responsibility and to the Port Director; Patrol Agent
in Charge; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or
equivalent level manager.
5.5.1.6 Destruction. Except as noted in this section or elsewhere in this Directive, if after
reviewing information, there exists no probable cause to seize the information, CBP will retain
no copies of the information.
5.5.2 Retention by Agencies or Entities Providing Technical or Subject Matter Assistance
5.5.2.1 During Assistance. All electronic devices, or copies of information contained therein,
provided to an assisting agency or entity may be retained for the period of time needed to
provide the requested assistance to CBP or in accordance with section 5.5.2.3 below.
5.5.2.2 Return or Destruction. CBP will request that at the conclusion of the requested
assistance, all information be returned to CBP as expeditiously as possible, and that the assisting
agency or entity advise CBP in accordance with section 5.4.3 above. In addition, the assisting
agency or entity should destroy all copies of the information conveyed unless section 5.5.2.3
below applies. In the event that any el~ctronic devices are conveyed, they must not be destroyed;
- 11
they are to be returned to CBP unless seizec;l by an assisting agency based on probable cause or
retained per 5.5.2.3.
5.5.2.3 Retention with Independent Authority. If an assisting federal agency elects to continue
to retain or seize an electronic device or information contained therein, that agency assumes
responsibility for processing the retention or seizure. Copies may be retained by an assisting
federal agency only if and to the extent that it has the independent legal authority to do so - for
example, when the inform~tion relates to terrorism or national security and the assisting agency
is authorized by law to receive and analyze such information. In such cases, the retaining agency
should advise CBP of its decision to retain information under its own authority.
5.6 Reporting Requirements
5.6.1 The Officer performing the border search of information shall be responsible for
completing all after-action reporting requirements. This responsibility includes ensuring the
completion of all applicable documentation such as the Form 6051D when appropriate, and
creation and/or updating records in CBP systems. Reports are to be created and updated in an
accurate, thorough, and timely manner. Reports must include all information related to the
search through the final disposition including supervisory approvals and extensions when
appropriate.
5.6.2 In instances where an electronic device or copy of information contained therein is

forwarded within CBP as noted in section 5.4.1, the receiving Officer is responsible for
recording all information related to the search from the point of receipt forward through the final
disposition.
5.6.3 Reporting requirements for this Directive are in addition to, and do not replace, any other
applicable reporting requirements.
5.7 Management Requirements
5.7.1 The duty supervisor shall ensure that the Officer completes a thorough inspection and
that all notification, documentation, and reporting requirements are accomplished.
5.7.2 The appropriate CBP second-line supervisor shall approve and monitor the status of the
detention of all electronic devices or copies of information contained therein.
5.7.3 The appropriate CBP second-line supervisor shall approve and monitor the status of the
transfer of any electronic device or copies of information contained therein for translation,
decryption, or subject matter assistance from another agency or entity.
5.7.4 The Director, Field Operations; Chief Patrol Agent; Director, Air Operations; Director,
Marine Operations; Special Agent in Charge; or equivalent level manager shall establish
protocols to monitor the proper documentation and recording of searches conducted pursuant to
this Directive and the detention, transfer, and final disposition of electronic devices or copies of
- 12
information contained therein in order to ensure compliance with the procedures outlined in this
Directive.
5.7.5 Officers will ensure, in coordination with field management as appropriate, that upon
receipt of any subpoena or other request for testimony or information regarding the border search
of an electronic device in any litigation or proceeding, notification is made to the appropriate
CBP Associate/Assistant Chief Counsel office.
6 MEASUREMENT. CBP Headquarters will continue to develop and maintain

appropriate mechanisms to ensure that statistics regarding border searches of electronic devices,
and the results thereof, can be generated from CBP systems using data elements entered by
Officers pursuant to this Directive.
7 AUDIT. CBP Management Inspection will develop and periodically administer an

auditing mechanism to review whether border searches of electronic devices are being conducted
in conformity with this Directive.
8 NO PRIVATE RIGHT CREATED. This Directive is an internal policy statement of

U.S. Customs and Border Protection and does not create or confer any rights, privileges, or
benefits on any person or party.
9 REVIEW. This Directive shall be reviewed and updated, as necessary, at least every
three years.
10 DISCLOSURE. This Directive may be shared with the public.
11 SUPERSEDES. Procedures for Border Search/Examination of Documents, Paper, and

Electronic Information (July 5, 2007) and Policy Regarding Border Search of Information (July
16, 2008), to the extent they pertain to electronic devices; CBP Directive No. 3340-049, Border
Searches of Electronic Devices Containing Information (August 20, 2009).
Acting Commissioner

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Case 2:18-cv-13113-SDW-LDW Document 1 Filed 08/23/18 Page 1 of 2 PageID: 1

UNITED STATES DISTRICT COURT FOR THE

KRISTJEN NIELSEN, in her official capacity

DATED: August 23, 2018

By: ___s/ Jay Rehman_____________

Albert Fox Cahn

Attorneys for Plaintiff

I. (a) PLAINTIFFS DEFENDANTS

Citizen or Subject of a 3 3 Foreign Nation 6 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

UNITED STATES DISTRICT COURT FOR THE

KRISTJEN NIELSEN, in her official capacity

ANNEX TO CIVIL COVER SHEET FOR ADDITIONAL ATTORNEYS REPRESENTING

Plaintiff Rejhane Lazoja is also represented by the Council on American-Islamic

DATED: August 23, 2018

By: ___s/ Jay Rehman________________

Albert Fox Cahn

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE

KRISTJEN NIELSEN, in her official capacity

PLAINTIFF’S BRIEF IN SUPPORT OF MOTION FOR RETURN OF PROPERTY UNDER

Preliminary Statement ..................................................................................................................... 1

Jurisdiction and Venue.................................................................................................................... 3

Rule 41(g) of the Federal Rules of Criminal Procedure ................................................................. 3

Statement of Facts ........................................................................................................................... 5

Carpenter v. United States,

Doe v. United States,

Janfeshan v. United States Customs & Border Prot.,

Ordonez v. United States,

Tellez-Sanchez v. United States,

United States v. Bennett,

United States v. Cortez,

United States v. Djibo,

United States v. Kim,

United States v. Kolsuz,

United States v. Place,

United States v. Ramsey,

Statutes and Regulations

CBP Directive No. 3340-049A (Jan. 4, 2018) ......................................................................... 1, 8-9

Fed. R. Crim. P. 41(g) ............................................................................................................ passim

Law Review Articles

Thomas Mann Miller, Digital Border Searches After Riley v. California,

storage devices without a warrant.

undress, as well as privileged communications with her counsel.

3340-049A, § 5.5.1.3. (Jan. 4, 2018), Ex. 3.

to search or seize Plaintiff’s phone and personal data.

seizure and retention of her property.

JURISDICTION AND VENUE

of the Federal Rules of Criminal Procedure.

RULE 41(g) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

attorney-client privileged materials).

United States Passport.

13. Defendant Kirstjen Nielsen is the Secretary of the Department of Homeland

14. Defendant Kevin K. McAleeman is the Commissioner of CBP, which is an agency

in their official capacities.

Lazoja, dated August 22, 2018 (“Rejhane Aff.”), Ex. 1 ¶ 2.

inspection point. (Rejhane Aff. ¶ 4).

traveled. (Rejhane Aff. ¶ 5).

By: _s/ Jay Rehman___________

By: _s/ Jay Rehman______________

By: _s/ Jay Rehman___________

ON THIS _ day of ______________, 2018, hereby:

By: _s/ Jay Rehman___________