Ride the Lightning

Immigration Attorney Sues DHS Over Airport Seizure of His Phone

February 3, 2021

The ABA Journal reported on January 28^th that Texas immigration lawyer Adam A. Malik has sued the U.S. Department of Homeland Security for seizing and retaining his iPhone after he returned to the United States from a trip to Costa Rica. He represents individuals in immigration and naturalization matters, including clients with lawsuits against the government and clients in removal proceedings.

His January 25^th lawsuit alleges that the government seized his phone and searched the contents without reasonable suspicion that it contained contraband or evidence of illegality. U.S. Customs and Border Protection did not obtain a warrant.

Malik alleged a violation of his expressive and associational rights under the First Amendment and his right to be free from unreasonable searches and seizures under the Fourth Amendment. The suit was filed in the Northern District of Texas.

Malik says his phone has privileged information contained in emails, notes, files and voicemails from more than 2,000 clients. Some clients have "significant legal troubles," including one client accused of terrorist activities. Some clients have committed significant offenses but have not yet been charged. Some are victims of domestic violence.

"If clients and their lawyers believe that adversaries and the government may one day sift through their communications in searches involving unrelated matters, clients are less likely to be candid with their lawyers, and lawyers will hesitate before writing down what they need to write down," Malik says in the lawsuit.

Malik also said the phone contains personal information, including medical reports from physicians addressing recent medical examinations.

Agents with Customs and Border Protection seized the phone January 3 at the Dallas-Fort Worth International Airport, even though Malik was approved for membership in the CBP's global entry trusted traveler program.

According to the suit, Malik was told that he was selected for a secondary inspection, during which he was asked about his personal life, his parents and his immigration history. Agents also asked about his representation of certain clients and the identity of certain clients. Malik answered the personal questions but not those about his clients.

An officer then asked Malik to unlock his iPhone to inspect its contents. Malik said he could not consent because the phone contained privileged information. The officer said he would keep the iPhone and it would be searched.

The suit says that the agents justified the seizure based on a CBP directive. The directive allows a basic search of the iPhone without suspicion or a warrant. A more advanced search, in which the device can be connected to external equipment and its contents copied, is permitted with a reasonable suspicion of a violation of laws administered by the CBP or when there is a national security concern.

The directive says electronic devices will be returned, and any data collected will be deleted if the government finds no probable cause for the seizure after a review of the information.

Malik says the CBP violated the directive by searching and reviewing private and privileged information before Malik was informed of an upcoming review by a filter team. As evidence of that violation, he cites a request for a verification code for one of his apps.

Malik refused to identify individuals who would be covered by attorney-client privilege because the client names "are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice."

Why do I get the impression that Malik had a bullseye on his back because of the people he represents who have beefs with the CBP?

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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