Border Patrol Searched & Copied a Nigerian American Attorney's Cell Phone 5X in 4 Months So He Filed an Injunction to Stop It. Feds Oppose b/c Rights Become More Imaginary @ the Imaginary Border

From [HERE] The federal government is opposing a Texas immigration lawyer’s request for an injunction to prevent warrantless border searches of his electronic devices.

Immigrant lawyer George Anibowei appealed to the 5th U.S. Circuit Court of Appeals at New Orleans after a federal judge denied an injunction in January, Law360 reports. Anibowei is a U.S. citizen and licensed attorney who maintains an office in Dallas.1 Before immigrating to the United States, Anibowei was licensed to practice law in Nigeria. He was admitted to the Texas Bar in 2002.

The government’s brief, filed July 22, argues that the lower court decision was not abuse of discretion, given Anibowei’s “novel theory” on a warrant requirement.

“Plaintiff George Anibowei sought a preliminary injunction under a theory that a warrant is required before a cellphone may be searched at the border,” the government brief said. “But as the district court correctly noted, no decision from this court or the Supreme Court has ever imposed such a requirement.”

Anibowei said border officials have searched his cellphone five times over a four-year period. In October 2016, the contents of his device were copied for examination, Anibowei said. His suit challenges the 2016 search, conducted at the Dallas/Fort Worth International Airport.

According to court documents, the first search incident occurred in October 2016, when Anibowei was returning from a short vacation to Canada. He had already been subjected to secondary inspection by Canadian border authorities when entering and exiting Canada, purportedly at the request of CBP. After Anibowei's return flight arrived at DFW Airport—while passengers were preparing to disembark—the flight crew told the passengers to return to their assigned seats, because officers from the Department of Homeland Security ("DHS") were there to remove a passenger. Anibowei was the passenger whom the officers removed. The officers, who were CBP agents,2 led Anibowei to an interrogation room and instructed him to place the contents of his pockets, including his cell phone, on a table. One of the agents then took Anibowei's cell phone out of the room. When Anibowei asked why, the agents told him that they had detained his cell phone for "examination and copying." Id. ¶ 35. The agents questioned Anibowei for roughly two hours about his background, his personal life, and the purpose of his trip to Canada. At no point did the agents suggest that Anibowei had broken the law or that he had any illegal material on his cell phone. After questioning him, the agents returned his cell phone and again told him that it had been copied for examination.

In February 2017, after Anibowei filed the instant lawsuit, CBP agents again detained him for questioning as he passed through customs at DFW Airport. This time, Anibowei was returning from a trip to Nigeria. Although the agents did not copy his cell phone, they performed a manual search of his emails and text messages. They also questioned Anibowei for nearly three hours. Once again, they never suggested that Anibowei had committed a crime or that his cell phone contained any illegal content. Anibowei alleges that his cell phone contains personal and private information as well as confidential and privileged materials relating to his work on behalf of clients. [MORE]

The government said Anibowei’s phone was returned to him immediately after the DFW airport search. Anibowei would have known if any copied information caused irreparable harm, but he instead offered “only generalities about speculative threatened harm,” the government argued.

Privacy expectations are lower at the border, the government said. “Routine border searches do not require even reasonable suspicion or probable cause, much less a warrant,” according to the brief.

Some courts have required individualized suspicion for forensic searches of electronic devices at the border, but they still reject the warrant requirement urged by Anibowei, the government brief said.