A Southern California man has become the latest person to sue the federal government over what he says is an unconstitutional search of his phone at the Los Angeles International Airport.
According to his lawsuit, which was recently filed in federal court in Los Angeles, Haisam Elsharkawi had arrived at LAX on February 9, 2017 and was headed to Saudi Arabia to go on a hajj, the Muslim religious pilgrimage.
After clearing the security checkpoint, Elsharkawi, an American citizen, was pulled aside from the Turkish Airlines boarding line by a Customs and Border Protection officer, who began questioning him about how much cash he was carrying and where he was going. Elsharkawi complied with the officer’s inquiries and dutifully followed him to a nearby table.
"As the questioning continued and became increasingly aggressive, Mr. Elsharkawi asked if there was a problem and whether he needed an attorney," the complaint states. "Officer Rivas then accused Mr. Elsharkawi of hiding something because of his request for an attorney."
Soon after, another agent, Officer Rodriguez, began searching Elsharkawi’s pockets and discovered his phone. Rodriguez asked Elsharkawi to unlock his phone, which he declined to do. He then also refused to answer further questions without having an attorney present.
Another officer told Elsharkawi that he was not under arrest and as such had no right to an attorney—at which point he asked to be released.
When that request was ignored, another agent, Officer Rivas, began rifling through Elsharkawi’s carry-on bag for a second time.
The complaint continues:
Mr. Elsharkawi asked for his phone back to make a call. Officer Rodriguez responded by stating that Mr. Elsharkawi had an attitude, was obviously racist, and had a problem with the uniform of CBP officers. Officer Rodriguez told Mr. Elsharkawi to put his hands behind his back, and handcuffed him.
Officer Rodriguez, along with two other CBP officers, then began pulling Mr. Elsharkawi into an elevator.
At this point, Mr. Elsharkawi feared for his safety. He turned to a nearby flight attendant and yelled to her, "Please call a lawyer for me!"
When Mr. Elsharkawi was taken into the elevator and reached another floor of the airport, he again loudly yelled out, "Someone help, someone call a lawyer for me. They said I’m not under arrest even though I’m handcuffed and they are taking me somewhere that I don’t know and will not let me have a lawyer."
Officer Rodriguez then pushed Mr. Elsharkawi’s arms up to his neck, to the point that Mr. Elsharkawi feared they would break.
One of the CBP officers stated that Mr. Elsharkawi was causing a lot of problems, and recommended taking him downstairs.
Elsharkawi was taken to a holding cell and was eventually brought before a supervisor named Officer Stevenson. Stevenson explained that the agents were "just protecting the country" and that all he had to do was unlock his phone.
Again, Elsharkawi declined. This back-and-forth went on for some time, as new agents continued to search his bag.
"The officers expressed no interest in searching his iPad, despite seeing it and removing it while searching his bags," the lawsuit continues.
Yet another officer entered the scene, identified in the civil complaint as "Officer Jennifer," who again began questioning Elsharkawi.
Eventually, after some back-and-forth, Elsharkawi "felt he had no choice but to acquiesce and unlocked his phone."
Officer Jennifer began searching his phone and asked Elsharkawi about his eBay and Amazon accounts, and "where he got merchandise for his e-commerce business, and what swap meets he frequents. Officer Jennifer also commented that Mr. Elsharkawi had a lot of apps and a lot of unread emails on his phone."
A rare occurrence
Lawyers for Elsharkawi believe that his phone was imaged.
A recent report issued by the Department of Homeland Security Office of the Inspector General found that some USB sticks containing data copied from electronic devices searched at the border "had not been deleted after the searches were completed."
According to CBP’s own figures sent to Ars in March 2017, the agency searched nearly 24,000 devices during fiscal year 2016, up from nearly 5,000 a year earlier. 2017 reached more than 29,000 "inbound travelers." However, the agency maintains that such inspections are exceedingly rare.
It is not clear how many outbound travelers, like Elsharkawi, were subjected to such searches.
Federal authorities do not need a warrant to examine a phone or a computer seized at the border. They rely on what’s known as the "border doctrine"—the legal idea that warrants are not required to conduct a search at the border. This legal theory has been generally recognized by courts, even in recent years.
Customs and Border Protection did not immediately respond to Ars’ request for comment.
UPDATE 3:02pm ET: "We are unable to comment on matters under litigation," emailed Stephanie Malin, a CBP spokeswoman.
She provided Ars with a lengthy statement referring to inbound travelers, which does not appear to be applicable to this lawsuit.
As she concluded:
Additional information on electronic searches are found in the links below as well as the policy directive.