Petition for Writ of Certiorari — George Anibowei, Petitioner v. Todd Blanche, Attorney General, et al.

Supreme Court briefAug 14, 2026

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APPENDIX

TABLE OF CONTENTS

Opinion, U.S. Court of Appeals for the Fifth

Circuit, filed November 19, 2025......................... 1a

Memorandum Opinion and Order, U.S. District

Court, Northern District of Texas,

filed November 22, 2024 ...................................... 5a

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Fifth Circuit,

filed March 20, 2026 .......................................... 23a

U.S. Immigration and Customs Enforcement,

Border Searches of Electronic Devices,

ICE Directive No. 7-6.1 ...................................... 25a

U.S. Customs and Border Protection, Border Search

of Electronic Devices Containing Information,

CBP Directive No. 3340-049 .............................. 44a

U.S. Customs and Border Protection, Border

Search of Electronic Devices,

CBP Directive No. 3340-049A ........................... 61a

Plaintiff’s Verified Second Amended Complaint for

Vacatur of Unlawful Agency Policies and

Declaratory and Injunctive Relief,

U.S. District Court, Northern District of Texas,

filed March 14, 2019 .......................................... 84a

Appendix 1a

Filed: November 19, 2025

United States Court of Appeals

for the Fifth Circuit

No. 24-11042

GEORGE ANIBOWEI,

lllllllllllllllllllllPlaintiff–Appellant,

versus

PAMELA BONDI, U.S. Attorney General; UNITED

STATES DEPARTMENT OF HOMELAND SECURITY;

UNITED STATES CUSTOMS AND BORDER PROTECTION;

UNITED STATES IMMIGRATION AND CUSTOMS

ENFORCEMENT; KRISTI NOEM, Secretary, U.S.

Department of Homeland Security; TROY MILLER,

Senior Official Performing the Duties of the

Commissioner, U.S. Customs and Border Protection;

PATRICK J. LECHLEITNER, Deputy Director and Senior

Official Performing the Duties of the Director for ICE,

lllllllllllllllllllllDefendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CV-3495

Before ELROD, Chief Judge, and CLEMENT and

HAYNES, Circuit Judges.

PER CURIAM: *

* This opinion is not designated for publication. See 5th Cir. R.

47.5.

Appendix 2a

George Anibowei, a naturalized United States

citizen and attorney in Texas, appeals the district

court’s dismissal of his Administrative Procedure Act

(“APA”) claim seeking vacatur of three directives

promulgated by United States Customs and Border

Protection (“CBP”) and United States Immigration

and Customs Enforcement (“ICE”) (together, “the

Government”). 1 In 2016, CBP officers at Dallas-Fort

Worth International Airport seized Anibowei’s work

cell phone when he returned from an international

trip and, without his consent or a warrant, copied his

phone’s data. Since this incident, border agents have

warrantlessly searched Anibowei’s cell phone at least

four additional times.

Anibowei filed suit against the Government, which,

ultimately, moved to dismiss Anibowei’s remaining

claim under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). The district court granted this motion

and dismissed Anibowei’s claim for lack of subject

matter jurisdiction under Rule 12(b)(1), and,

alternatively, for failure to state a claim on which

relief can be granted under Rule 12(b)(6).

We have jurisdiction over this appeal under 28

U.S.C. § 1291. We review de novo a district court’s

dismissal under Rules 12(b)(1) and 12(b)(6), “taking

all well-pleaded factual allegations in the complaint

as true, and viewing them in the light most favorable

to the plaintiff.” Gonzalez v. Blue Cross Blue Shield

Ass’n, 62 F.4th 891, 898 (5th Cir. 2023) (citation

1 Specifically, CBP, Directive No. 3340-049, BORDER SEARCH OF

ELECTRONIC DEVICES CONTAINING INFORMATION (2009); ICE,

DIRECTIVE NO. 7-6.1, BORDER SEARCHES OF ELECTRONIC DEVICES

(2009); and CBP, Directive No. 3340-049A, BORDER SEARCH OF

ELECTRONIC DEVICES (2018).

Appendix 3a

omitted). “We may affirm the district court’s dismissal

on any ground the record supports,” including the

alternative ground that Anibowei failed to state a

claim upon which relief can be granted. Id. (citation

omitted); see also Cardoso v. Reno, 216 F.3d 512, 515

(5th Cir. 2000) (“[T]his Court has long recognized that

reversal is inappropriate if the ruling of the district

court can be affirmed on any grounds, regardless of

whether those grounds were used by the district

court.” (internal quotations and citation omitted)). We

respectfully decline to affirm the dismissal under Rule

12(b)(1). 2

2 We have previously explained that “[w]hen a Rule 12(b)(1)

motion is filed in conjunction with other Rule 12 motions, the

court should consider the Rule 12(b)(1) jurisdictional attack

before addressing any attack on the merits.” Wolcott v. Sebelius,

635 F.3d 757, 762 (5th Cir. 2011) (citation omitted). We assume

without deciding that the district court properly treated the

Government’s argument that Anibowei had “an adequate

alternative remedy to APA judicial relief ” as a jurisdictional

inquiry and first turn to the district court’s grant of the

Government’s Rule 12(b)(1) motion. The district court considered

5 U.S.C. § 704, which states that “final agency action for which

there is no other adequate remedy in a court [is] subject to

judicial review.” The district court reasoned that, because

Anibowei had “an adequate alternative remedy” available to him

in the form of “bringing a constitutional challenge and seeking

injunctive relie[f],” it did not have subject matter jurisdiction

over Anibowei’s APA claim. However, “[t]he ‘adequate remedy’

provision of § 704 is intended ‘simply to avoid duplicating

previously established special statutory procedures for review of

agency actions.’ ” Rollerson v. Brazos River Harbor Navigation

Dist., 6 F.4th 633, 641 (5th Cir. 2021) (quoting Darby v. Cisneros,

509 U.S. 137, 146 (1993)). This “exception will apply only if there

is clear and convincing evidence of legislative intent to create a

special, alternative remedy and thereby bar APA review.” Fort

Bend Cnty. v. U.S. Army Corps of Eng’rs, 59 F.4th 180, 192 (5th

Cir. 2023) (citation omitted). Neither the district court nor the

Appendix 4a

Turning to Rule 12(b)(6), Anibowei asserts that the

border search exception does not apply to cell phone

searches and urges us to reconsider en banc our

precedent in United States v. Castillo, 70 F.4th 894

(5th Cir. 2023), and Malik v. United States

Department of Homeland Security, 78 F.4th 191 (5th

Cir. 2023), so that we may hold that warrants are

required for most cell phone searches at the border.

However, we are bound by our rule of orderliness

to follow Castillo and Malik. See In re Bonvillian

Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021).

As Anibowei explained in his reply brief (with added

emphasis), “[a]ll agree that the validity of the

Directives at issue in this case turns squarely and

solely on the question whether the Fourth

Amendment generally requires warrants to search

cell phones at the border.” Castillo and Malik answer

this question in the negative and foreclose Anibowei’s

argument. See Castillo, 70 F.4th at 898; Malik, 78

F.4th at 200–01. Therefore, due to the rule of

orderliness, we AFFIRM, on this ground, the district

court’s dismissal of Anibowei’s complaint.

parties point to such “clear and convincing evidence,” id., and we

decline to affirm the district court’s dismissal of Anibowei’s claim

on this ground.

Appendix 5a

Filed November 22, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GEORGE ANIBOWEI,

Plaintiff,

VS.

ALEJANDRO

MAYORKAS, et al.,

Defendants.

§ Civil Action No.

§ 3:16-CV-3495-D

MEMORANDUM OPINION

AND ORDER

Defendants—including U.S. Department of

Homeland Security (“DHS”), U.S. Customs and

Border Protection (“CBP”), and U.S. Immigration and

Customs

Enforcement

(“ICE”)

(collectively,

“defendants”) 1—move to dismiss Count VI of plaintiff

George Anibowei’s (“Anibowei’s”) second amended

complaint: the remaining claim that Anibowei brings

under the Administrative Procedure Act (“APA”), 5

U.S.C. § 706(2)(A)-(B), seeking vacatur of three

directives promulgated by CBP and ICE, and

declaratory and injunctive relief against the

departments and agencies and the individual

The other defendants are: Secretary of Homeland Security

Alejandro Mayorkas, in his official capacity; Troy A. Miller,

Senior Official Performing the Duties of the Commissioner for

CBP, in his official capacity; Patrick J. Lechleitner, Deputy

Director and Senior Official Performing the Duties of the

Director for ICE, in his official capacity; and Attorney General

Merrick Garland, in his official capacity

Appendix 6a

department and agency heads in their official

capacity. 2 Defendants move to dismiss Count VI for

lack of subject matter jurisdiction and failure to state

a claim on which relief can be granted. It appears that

Anibowei is essentially conceding that he will lose if

this court reaches the merits, but he is attempting to

avoid dismissal for lack of jurisdiction so that the

merits will be at issue on appeal. For the reasons that

follow, the court grants defendants’ motion and

dismisses Count VI of Anibowei’s second amended

complaint for lack of subject matter jurisdiction.

Alternatively, the court dismisses Count VI for failure

to state a claim on which relief can be granted.

Anibowei, a lawyer, is a naturalized U.S. citizen

who was born in Nigeria. He owns a small law practice

where he primarily handles immigration matters.

Anibowei travels several times a year, often

internationally, for both work and personal reasons.

In October 2016 CBP officers at the Dallas-Fort Worth

International Airport seized Anibowei’s work cell

phone, without his consent or a search warrant, and

advised Anibowei that they were going to copy the

hard drive. When Anibowei protested, the officers

gave him a flyer explaining their legal authority to

search and seize his phone under CBP Directive No.

3349-049, Border Search of Electronic Devices

Containing Information (Aug. 20, 2009) (“2009 CBP

Directive”). Anibowei’s work cell phone contains

2 Anibowei initially brought seven claims for relief, including

under the First and Fourth Amendments, but he voluntarily

dismissed with prejudice all claims other than count VI, his APA

claim, on June 17, 2024.

Appendix 7a

sensitive information about his clients and their

cases, including call logs, voice mails, text messages,

and an archive of Anibowei’s work emails with drafts

of confidential filings and other information involving

removal proceedings adverse to DHS. 3

At the time of filing his second amended complaint,

CBP agents had searched Anibowei’s phone at least

four additional times. He intends to continue

traveling internationally, but he now does so without

his work phone because of the risk of further invasions

of his and his clients’ privacy. He continues to carry

his personal phone when he travels, which also has

access to his work email.

Anibowei seeks vacatur of three directives: the

2009 CBP Directive, CBP Directive No. 3340-049A,

Border Search of Electronic Devices (Jan. 4, 2018)

(“2018 CBP Directive”), and ICE Directive 7-6.1,

Border Searches of Electronic Devices (Aug. 18, 2009)

(“2009 ICE Directive”) (collectively, “Directives”). He

also seeks a declaration that defendants’ policies and

practices violate the First and Fourth Amendments by

authorizing searches of electronic devices absent a

warrant supported by probable cause; a declaration

that they violated his First and Fourth Amendment

rights by searching his devices absent a warrant

supported by probable cause; an injunction ordering

defendants to expunge information gathered from or

copies made of the contents of his devices; an

injunction against enforcement of the agency policies

against himself and across the board; and reasonable

attorney’s fees and costs and other such relief that the

court deems proper.

3 CBP is a component of DHS.

Appendix 8a

The court has heard oral argument.

“Federal courts are courts of limited jurisdiction,

and absent jurisdiction conferred by statute, lack the

power to adjudicate claims.” Stockman v. Fed.

Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).

When challenging subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1), a party can make a facial

attack or a factual attack. See Paterson v. Weinberger,

644 F.2d 521, 523 (5th Cir. May 1981). If, as here, the

party merely files a Rule 12(b)(1) motion, the attack is

considered facial, and the court looks only at the

sufficiency of the allegations in the complaint and

assumes them to be true. Id. If the allegations are

sufficient to allege jurisdiction, the court must deny

the motion. Id. This is akin to a Rule 12(b)(6) motion

in that the “pleading’s allegations are presumed to be

true, and ‘[i]f those allegations sufficiently allege a

claim for recovery the complaint stands and the

federal court must entertain the suit.’” Vinmar

Overseas, Ltd. v. OceanConnect, LLC, 2012 WL

3599486, at *4 (S.D. Tex. Aug. 20, 2012) (Rosenthal,

J.) (alteration in original) (quoting Jones v.

SuperMedia Inc., 281 F.R.D. 282, 286 (N.D. Tex. 2012)

(Boyle, J.)). “The burden of proof for a Rule 12(b)(1)

motion to dismiss is on the party asserting

jurisdiction. Accordingly, the plaintiff constantly

bears the burden of proof that jurisdiction does in fact

exist.” Ramming v. United States, 281 F.3d 158, 161

(5th Cir. 2001) (per curiam) (citations omitted).

“In deciding a Rule 12(b)(6) motion to dismiss, the

court evaluates the sufficiency of plaintiffs’

. . . complaint by ‘accepting all well-pleaded facts as

Appendix 9a

true, viewing them in the light most favorable to the

plaintiff.’ ” Bramlett v. Med. Protective Co. of Fort

Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012)

(Fitzwater, C.J.) (internal quotation marks and

alteration omitted) (quoting In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To

survive defendants’ motion, plaintiff must plead

“enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has

acted unlawfully.” Id.; see also Twombly, 550 U.S. at

555 (“Factual allegations must be enough to raise a

right to relief above the speculative level[.]”). “[W]here

the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘shown’—‘that

the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679

(quoting

Rule

8(a)(2))

(alteration

omitted).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do

not suffice.” Id. at 678 (citation omitted).

III

The court begins with defendants’ assertion under

Rule 12(b)(1) that this court does not have subject

matter jurisdiction over Anibowei’s APA claim.

Defendants contend that the court lacks jurisdiction

because: (1) Anibowei’s challenges to the Directives

are moot; (2) his alleged injuries would not be

Appendix 10a

redressed by his requested relief; (3) the Directives do

not constitute final agency actions such that there is

jurisdiction under the APA; and (4) Anibowei has an

adequate alternative remedy to APA judicial relief,

meaning there is no jurisdiction under the APA.

The court turns first to defendants’ contention that

Anibowei’s claim is moot with respect to the 2009 CBP

Directive and the 2009 ICE Directive because each

has been superseded. 4

Article III of the Constitution limits federal judicial

power to cases and controversies. United States Parole

Comm’n v. Geraghty, 445 U.S. 388, 395 (1980). A case

becomes moot “when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable

interest in the outcome,” id. at 396 (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)), or “[i]f a

dispute has been resolved or if it has evanesced

because of changed circumstances, including the

passage of time,” Am. Med. Ass’n v. Bowen, 857 F.2d

267, 270 (5th Cir. 1988). A claim against an agency

regulation or other directive may become moot if the

agency repeals the offending pronouncement. Spell v.

Edwards, 962 F.3d 175, 179 (5th Cir. 2020). If an

agency repeals a challenged directive but then

replaces it with a substantially similar one, there is

no mootness because the injury remains. Franciscan

All., Inc. v. Becerra, 47 F.4th 368, 374 (5th Cir. 2022).

Anibowei does not contest defendants’ assertion that the

claim for vacatur of the 2009 CBP Directive is moot because it

has been superseded by the 2018 CBP Directive.

Appendix 11a

The issue is whether the court can still order

“effectual relief . . . to the prevailing party.” Knox v.

Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307

(2012) (citation and internal quotation marks

omitted).

The parties do not dispute that the 2018 CBP

Directive remains in effect. Additionally, the 2009

ICE Directive remains in effect except to the extent

that it has been superseded by supplemental ICE

guidance, see Ds. App. (ECF No. 125) at 33-34. The

section Anibowei challenges—which allows searches

and seizures of electronic devices without a warrant

and

probable

cause—is

modified

ICE

Supplemental Guidance, Legal Update – Border

Search of Electronic Devices (May 11, 2018) (“2018

ICE Guidance”). Ds. App. (ECF No. 125) at 33-34. The

2018 ICE Guidance replaces the policy in the 2009

ICE Directive allowing searches and seizures of

electronic devices with or without individualized

suspicion, see Ds. App. (ECF No. 125) at 24, with the

requirement that agents “should no longer perform

advanced border searches of electronic devices

without reasonable suspicion,” id. at 33-34. Because

Anibowei challenges the policy allowing searches and

seizures of devices without a warrant or probable

cause, and both the original and updated versions of

the policy allow for such searches and seizures, the

challenge is not moot to the extent that the original

policy has been replaced with a substantially similar

one. See Franciscan All., Inc., 47 F.4th at 374.

Therefore, Count VI of Anibowei’s second amended

complaint should not be dismissed based on mootness.

Appendix 12a

The court turns next to defendants’ assertion that

Anibowei lacks standing because his alleged injuries

would not be redressed by vacatur of the Directives.

“[T]he requirement that a claimant have ‘standing

is an essential and unchanging part of the case-orcontroversy requirement of Article III.’ ” Davis v. Fed.

Election Comm’n, 554 U.S. 724, 733 (2008) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

“[T]he irreducible constitutional minimum of standing

contains three elements.” Lujan, 504 U.S. at 560.

These elements are (1) an injury-in-fact that is

concrete and actual or imminent, not hypothetical; (2)

a fairly traceable causal link between the injury and

the defendant’s actions; and (3) that the injury will

likely be redressed by a favorable decision. See, e.g.,

Bennett v. Spear, 520 U.S. 154, 167 (1997); Little v.

KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009).

Defendants maintain that Anibowei’s alleged

injury is not redressable via the requested remedies

because, even if the Directives are vacated,

government agents still retain the power to search

electronic devices at the border without a warrant

because the Directives are not the source of that

authority. Rather, defendants contend, it is the

“plenary authority of the Federal Government to

conduct searches and inspections” at the border that

authorizes these searches. Ds. Br. (ECF No. 124) at

13.

To satisfy the redressability prong of standing, the

plaintiff must show a “substantial likelihood that the

relief requested will redress the injury.” Vt. Agency of

Appendix 13a

Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765,

771 (2000) (internal quotation marks and citation

omitted). A plaintiff must demonstrate redressability

for each form of relief sought. Friends of the Earth,

Inc. v. Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167,

185 (2000). The plaintiff “need not show that a

favorable decision will relieve . . . every injury.”

Larson v. Valente, 456 U.S. 228, 243 n.15 (1982).

Instead, a “substantial likelihood” that the requested

relief will redress the alleged injury is enough. Duke

Power Co. v. Caroline Env’t Study Grp., Inc., 438 U.S.

59, 79 (1978); see also Sanchez v. R.G.L., 761 F.3d 495,

506 (5th Cir. 2014) (holding that a plaintiff “need only

show that a favorable ruling could potentially lessen

its injury”).

This court frequently holds that the redressability

prong is met when plaintiffs plead that agency policies

are contrary to law and that their harms could be

redressed by setting aside harmful guidance

documents. See, e.g., Nat’l Fed’n of Indep. Bus. v.

Dougherty, 2017 WL 1194666, at *6 (N.D. Tex. Feb. 3,

2017) (Fitzwater, J.); see also Texas v. Cardona, 2024

WL 3658767, at *18 (N.D. Tex. Aug. 5, 2024)

(O’Connor, J.) (holding that, even if defendants could

enforce policies without the challenged guidance

documents, a declaration that the guidance

documents’ interpretation was unlawful and an

injunction restraining reliance on that interpretation

would reduce the alleged harm).

Here, Anibowei pleads three redressable injuries:

(1) he is forced to take precautionary measures to

avoid unconstitutional border searches, such as

Appendix 14a

leaving his work phone at home when he travels; (2)

he is under threat that he will be subject to

unconstitutional border searches in the future; and (3)

he suffers an ongoing injury from the government’s

continued retention of the data it downloaded from his

cell phone in 2016. Anibowei alleges that the

requested relief of vacatur of the policies would lessen

his injury by allowing him once again to carry his

work phone when he travels, enabling him to travel

without the threat of delay or embarrassment from

unconstitutional searches, and by increasing the

likelihood that the data collected from his phone

would be expunged based on the recognition that the

data were unlawfully obtained. Because Anibowei

plausibly alleges that his injuries would likely be

lessened by his requested remedies, he has adequately

pleaded a redressable injury.

The court now considers defendants’ contention

that the Directives are not reviewable under the APA

because they are not final agency actions.

“The APA allows for judicial review only of a ‘final

agency action[.]’” Texas v. Equal Emp. Opportunity

Comm’n, 933 F.3d 433, 441 (5th Cir. 2019) (citing 5

U.S.C. § 704) (“EEOC ”). Two conditions must be

satisfied for an agency action to be final: (1) the action

“must mark the ‘consummation’ of the agency’s

decisionmaking process,” and (2) the action “must be

one by which ‘rights or obligations have been

determined,’ or from which ‘legal consequences will

flow.’ ” Bennett, 520 U.S. at 177-78 (citations omitted).

“Courts consistently hold that an agency’s guidance

Appendix 15a

documents binding it and its staff to a legal position

produce legal consequences or determine rights and

obligations, thus meeting the second prong of

Bennett.” EEOC, 933 F.3d at 441. “ ‘The primary

distinction between a substantive rule’—which is, by

definition, a final agency action—‘and a general

statement of policy . . . turns on whether an agency

intends to bind itself to a particular legal position.’ ”

Id. (quoting Syncor Int’l Corp. v. Shalala, 127 F.3d 90,

94 (D.C. Cir. 1997)). An action may be binding on an

agency itself “if it either appears on its face to be

binding[] or is applied by the agency in a way that

indicates it is binding[,]” id. (alteration in original)

(citation omitted), and, in some cases, “the mandatory

language of a document alone can be sufficient to

render it binding,” id. at 422 (quoting Gen. Elec. Co. v.

Env’t Prot. Agency, 290 F.3d 377, 383 (D.C. Cir. 2002)).

Mandatory language is not strictly required,

however—the Supreme Court takes a “pragmatic

approach.” Id. at 441 (citation and internal quotation

marks omitted). “[I]f a statement denies the [agency]

discretion in the area of its coverage[,] then the

statement is binding, and creates rights or

obligations.” Id. at 442 (alterations in original)

(quoting Gen. Elec. Co., 290 F.3d at 382).

Mandatory language and a pragmatic view of the

Directives together indicate that these directives are

final agency actions and are binding on their issuing

agencies. The 2018 CBP Directive states that it exists

“[t]o provide guidance and standard operating

procedures for searching, reviewing, retaining, and

sharing information contained in computers . . .

mobile phones . . . and any other communication,

Appendix 16a

electronic, or digital devices subject to . . . border

searches by [CBP].” Ds. App. (ECF No. 125) at 11. This

directive contains binding mandatory language,

stating that “[a]ll CBP Officers, Border Patrol

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[.]” Id. (emphasis added). The

directive binds itself to its procedures, as is made clear

by the statement in the directive that “[t]his directive

governs border searches of electronic devices[.]” Id. at

12 (emphasis added).

The 2009 ICE Directive similarly states that it

“provides legal guidance and establishes policy and

procedures within [ICE] with regard to border search

authority[,]” Ds. App. (ECF No. 125) at 23, and it

states that “Special Agents are responsible for

complying with the provisions of this Directive[,]” id.

at 25. The language in these directives indicates that

they are intended to be binding on the agencies

themselves and their agents and officers in executing

border searches of electronic devices.

Defendants point out that the Directives include

disclaimers explicitly stating that they do not create

any rights or privileges. See id. at 22, 32. But when

the Directives are assessed pragmatically, it does not

appear that these boilerplate statements outweigh

the balance of the Directives’ language, which is

clearly binding on the agency itself and those acting

under its authority. By binding the agencies and their

agents and officers to the interpretation of what is

required for different types of searches of electronic

devices at the border, these directives impact the

privacy rights and privileges of individuals at the

Appendix 17a

border who are subject to searches carried out under

the authority and instruction of these directives.

Finally, the court considers whether the Directives

are not reviewable under the APA on the ground that

Anibowei has an adequate alternative remedy in a

court for his alleged injuries.

The APA grants federal courts jurisdiction over

“final agency action for which there is no other

adequate remedy in a court[.]” 5 U.S.C. § 704

(emphasis added). See also Fort Bend Cnty. v. U.S.

Army Corps of Eng’rs, 59 F.4th 180, 192 (5th Cir.

2023) (characterizing the “adequate remedy”

requirement as jurisdictional). “The adequacy of the

relief available need not provide an identical review

that the APA would provide, so long as the alternative

remedy offers the ‘same genre’ of relief.” Hinojosa v.

Horn, 896 F.3d 305, 310 (5th Cir. 2018) (per curiam)

(citation omitted). The requirement that there be no

adequate alternative remedy “entails a case-specific

evaluation.” Id. “[A] legal remedy is not inadequate for

purposes of the APA because it is procedurally

inconvenient for a given plaintiff, or because plaintiffs

have inadvertently deprived themselves of the

opportunity to pursue that remedy.” Martinez v.

Pompeo, 977 F.3d 457, 460 (5th Cir. 2020) (per

curiam) (citation omitted).

The court holds that Anibowei has an adequate

alternative remedy to his APA challenge because he

could allege in a court—indeed, in this court and

Appendix 18a

lawsuit—the constitutional claims that he has

already brought but has voluntarily dismissed.

Insofar as Anibowei seeks vacatur of the Directives to

prevent being subject to warrantless searches of his

electronic devices at the border, an injunction against

enforcement of those policies pursuant to a

constitutional challenge would similarly prevent his

being subjected to such searches in the future.

Therefore, bringing a constitutional challenge and

seeking injunctive relied would, if successful on the

merits, provide “the same genre of relief ” as vacatur

of the Directives pursuant to the APA. See Hinojosa,

896 F.3d at 310. The fact that Anibowei has raised and

then voluntarily dismissed these claims does not

make this remedy inadequate. See Martinez, 997 F.3d

at 460.

Because Anibowei has an adequate alternative

remedy, his APA claim is not fit for judicial review.

The court lacks subject matter jurisdiction over this

claim and therefore grants defendants’ motion to

dismiss under Rule 12(b)(1).

Defendants also maintain that Anibowei has failed

to state a claim on which relief can be granted. They

posit that the Directives do not violate the Fourth or

First Amendment under the law of this circuit. The

court will consider defendants’ Rule 12(b)(6) motion in

the alternative.

To state a claim for relief under Rule 12(b)(6), a

complaint’s allegations must, “when taken as true,

Appendix 19a

state[] ‘a claim to relief that is plausible on its face.’ ”

Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross

& Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th Cir.

2018) (quoting Twombly, 550 U.S. at 570). The Fourth

Amendment requires “that searches and seizures be

reasonable[,]” and “the Fourth Amendment’s balance

of reasonableness is qualitatively different at the

international border than in the interior.” United

States v. Montoya de Hernandez, 473 U.S. 531, 537-38

(1985). Historically, “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.” United States vs. Flores-Montano, 541 U.S.

149, 152-53 (2004) (quoting United States v. Ramsey,

431 U.S. 606, 616 (1977)).

In the Fifth Circuit, the government does not need

individualized suspicion to conduct a routine manual

cell phone search at the border, and nonroutine

searches require only reasonable suspicion. See

United States v. Castillo, 70 F.4th 894, 898 (5th Cir.

2023); Malik v. U.S. Dep’t of Homeland Sec., 78 F.4th

191, 200 (5th Cir 2023). Anibowei “recognizes the

binding force of Castillo and Malik” and that this

court is bound by them. P. Resp. (ECF No. 127) at 15. 5

5 Anibowei cites United States v. Sultanov, 2024 WL 3520443,

at *25 (E.D.N.Y. July 24, 2024), for the proposition that

reasonableness under the Fourth Amendment should require

probable cause and a warrant because of the First Amendment

interests and considerations at stake with a search of electronic

devices. Because binding Fifth Circuit precedent does not require

Appendix 20a

The 2018 CBP Directive requires reasonable suspicion

or a national security concern for an advanced search

of an electronic device. Ds. App. (ECF No. 125) at 15.

Similarly, the 2018 ICE Guidance, which updates the

requirements for advanced border searches of

electronic devices, instructs agents not to perform

advanced border searches of electronic devices

without reasonable suspicion. Id. at 33-34.

Accordingly, to plead a plausible claim for relief,

Anibowei cannot rely on an allegation that the

Directives’ policies—which comply with this circuit’s

requirements for a border search of an electronic

device to be reasonable—violate the Fourth

Amendment.

Anibowei also alleges that the Directives violate

the First Amendment because individuals “are chilled

from exercising their First Amendment rights of free

speech and association, in knowing that their

personal,

confidential,

and

anonymous

communications, and their expressive material, may

be viewed and retained by government agents without

any wrongdoing on their part.” Compl. ¶ 123.

Anibowei cites United States v. Sultanov, 2024 WL

3520443 (E.D.N.Y. July 24, 2024), 6 for the proposition

that First Amendment considerations are relevant to

the determination that a warrant and probable cause

were required to search a cell phone at the border, and

he cites Zurcher v. Stanford Daily, 436 U.S. 547

(1970), for the proposition that the warrant

a warrant and probable cause, and because Sultanov is not

binding on this court, the court declines to follow Sultanov.

6 See supra note 5.

Appendix 21a

requirement should be administered carefully when

“presumptively protected materials are sought to be

seized[.]” Zurcher, 436 U.S. at 564. Neither of these

cases, however, suggests that it is a standalone

violation of the First Amendment to search a cell

phone at the border without probable cause and a

warrant. Instead, both cases consider First

Amendment interests to determine what is

reasonable under the Fourth Amendment in their

respective contexts. In Sultanov, which is not binding

on this court, the court referred to “First Amendment

considerations” in determining that the Fourth

Amendment required probable cause and a warrant to

search a cell phone at the border. Sultanov, 2024

WL3520443, at *24-25. Similarly, the Court in

Zurcher noted that, outside of the border-search

context, “prior cases do no more than insist that the

courts apply the warrant requirements with

particular exactitude when First Amendment

interests would be endangered by the search.”

Zurcher, 436 U.S. at 565. It did not, however, suggest

that failure to do so would be a standalone violation of

the First Amendment.

Absent any binding authority to the contrary, this

court holds that a warrantless border search of an

electronic device without probable cause does not

violate the First Amendment merely because the

device may contain expressive or associational

content.

Because the Directives comply with Fifth Circuit

law, Anibowei’s allegations, taken as true, do not state

a claim for relief that is plausible on its face.

Appendix 22a

Accordingly, the court holds in the alternative that,

assuming arguendo that it has jurisdiction over Count

VI of Anibowei’s second amended complaint, Count VI

does not state a claim on which relief can be granted.

Because this court lacks subject matter jurisdiction

over Anibowei’s APA claim, and, alternatively,

because Anibowei has failed to state a claim for which

relief can be granted, the court grants defendants’

motion to dismiss Count VI of Anibowei’s second

amended complaint. The court dismisses this action

without prejudice by judgment filed today. 7

SO ORDERED.

November 22, 2024.

S/ Sidney A. Fitzwater

SIDNEY A. FITZWATER

SENIOR JUDGE

7 This action is being dismissed without prejudice because the

dismissal is for lack of subject matter jurisdiction. The dismissal

for failure to state a claim is in the alternative and assumes

arguendo that the court has subject matter jurisdiction.

Appendix 23a

Filed: March 20, 2026

United States Court of Appeals

for the Fifth Circuit

No. 24-11042

GEORGE ANIBOWEI,

lllllllllllllllllllllPlaintiff–Appellant,

versus

PAMELA BONDI, U.S. Attorney General; UNITED

STATES DEPARTMENT OF HOMELAND SECURITY;

UNITED STATES CUSTOMS AND BORDER PROTECTION;

UNITED STATES IMMIGRATION AND CUSTOMS

ENFORCEMENT; KRISTI NOEM, Secretary, U.S.

Department of Homeland Security; TROY MILLER,

Senior Official Performing the Duties of the

Commissioner, U.S. Customs and Border Protection;

PATRICK J. LECHLEITNER, Deputy Director and Senior

Official Performing the Duties of the Director for ICE,

lllllllllllllllllllllDefendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CV-3495

ON PETITION FOR REHEARING EN BANC

Before ELROD, Chief Judge, CLEMENT, and HAYNES,

Circuit Judges.

PER CURIAM:

Appendix 24a

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th CIR. R.40 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en

banc (FED. R. APP. P.40 and 5TH CIR. R.40), the

petition for rehearing en banc is DENIED.

Appendix 25a

U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT

ICE Policy System

DISTRIBUTION:

ICE

DIRECTIVE NO.:

7-6.1

ISSUE DATE:

August 18, 2009

EFFECTIVE DATE: August 18, 2009

REVIEW DATE:

August 18, 2012

SUPERSEDES:

See Section 3

Below.

DIRECTIVE TITLE: BORDER SEARCHES OF

ELECTRONIC DEVICES

1.1.

1.2.

PURPOSE and SCOPE.

This Directive provides legal guidance and

establishes policy and procedures within U.S.

Immigration and Customs Enforcement (ICE)

with regard to border search authority to

search, detain, seize, retain, and share

information contained in electronic devices

possessed by individuals at the border, the

functional equivalent of the border, and the

extended border to ensure compliance with

customs, immigration, and other laws enforced

by ICE. This Directive applies to searches of

electronic devices of all persons arriving in,

departing from, or transiting through the

United States, unless specified otherwise.

This Directive applies to border search

authority only. Nothing in this Directive limits

the authority of ICE Special Agents to act

pursuant to other authorities such as a warrant,

a search incident to arrest, or a routine

inspection of an applicant for admission.

Appendix 26a

AUTHORITIES/REFERENCES. 8 U.S.C.

§ 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; and the

December 12, 2008, ICE Office of Investigations

(OI)

guidance

entitled

“Recordkeeping

Procedures Regarding Detentions of Documents

and Electronic Devices.”

SUPERSEDED/CANCELLED POLICY/

SUMMARY OF CHANGES. ICE Directive

No. 7-6.0 entitled “Border Searches of

Documents and Electronic Media” is hereby

superseded as it relates to electronic devices.

Additionally, all other issuances on this subject

issued by ICE prior to the date of this Directive

are hereby superseded as they relate to searches

of electronic devices, with the exception of the

March 5, 2007, OI guidance entitled “Field

Guidance on Handling Detained or Seized

Electronic Media from Persons of National

Security Interest at Ports of Entry” and the

December 12, 2008, OI guidance entitled

“Recordkeeping

Procedures

Regarding

Detentions of Documents and Electronic

Media.”

BACKGROUND.

ICE is responsible for

ensuring

compliance

with

customs,

immigration, and other Federal laws at the

border. To that end, Special Agents may review

Appendix 27a

5.1.

5.2.

6.1.

and analyze computers, disks, hard drives, and

other electronic or digital storage devices. These

searches are part of ICE’s long-standing

practice and are essential to enforcing the law

at the United States border. Searches of

electronic devices are a crucial tool for detecting

information concerning terrorism, narcotics

smuggling, and other national security matters;

alien admissibility; contraband including child

pornography;

laundering

monetary

instruments;

violations of copyright or

trademark laws; and evidence of embargo

violations or other import or export control laws.

DEFINITIONS. The following definitions are

provided for the purposes of this Directive:

Assistance. The use of third party analytic

resources such as language processing,

decryption, and subject matter expertise, to

assist ICE in viewing the information contained

in electronic devices or in determining the

meaning, context, or value of information

contained therein.

Electronic Devices. Any item that may

contain information, such as computers, disks,

drives, tapes, mobile phones and other

communication devices,

cameras,

music

players, and any other electronic or digital

devices.

POLICY.

ICE Special Agents acting under border search

authority may search, detain, seize, retain, and

share electronic devices, or information

contained

therein,

with

without

individualized suspicion, consistent with the

Appendix 28a

6.2.

6.3.

7.1.

7.2.

guidelines and applicable laws set forth herein.

Assistance to complete a border search may be

sought from other Federal agencies and nonFederal entities, on a case by case basis, as

appropriate.

When U.S. Customs and Border Protection

(CBP) detains, seizes, or retains electronic

devices, or copies of information therefrom, and

turns such over to ICE for analysis and

investigation (with appropriate documentation),

ICE policy will apply once it is received by ICE.

Nothing in this policy limits the authority of

Special Agents to make written notes or reports

or to document impressions relating to a border

encounter in ICE’s paper or electronic

recordkeeping systems.

RESPONSIBILITIES.

The Directors of OI, the Office of Professional

Responsibility (OPR), and the Office of

International Affairs (OIA) have oversight over

the implementation of the provisions of this

Directive.

Special Agents in Charge (SACs) and Attachés

are responsible for:

1) Implementing the provisions of this

Directive and ensuring that Special Agents

in their area of responsibility (AOR) receive

a copy of this Directive and are familiar with

its contents;

2) Ensuring that Special Agents in their AOR

have completed any training programs

relevant to border searches of electronic

devices, including constitutional, privacy,

Appendix 29a

7.3.

7.4.

7.5.

8.1.

civil rights, and civil liberties training

related to such searches, as may be required

by ICE Headquarters; and

3) Maintaining appropriate mechanisms for

internal audit and review of compliance with

the procedures outlined in this Directive.

(See “Recordkeeping Procedures Regarding

Detentions of Documents and Electronic

Devices” memo dated December 12, 2008.)

Attachés are responsible for ensuring

coordination with their host countries, as

appropriate, before conducting any such border

search outside of the United States.

When ICE receives electronic devices, or copies

of information therefrom, from CBP for analysis

and investigation, ICE Special Agents are

responsible for advising CBP of the status of any

such analysis within 10 calendar days, and

periodically thereafter, so that CBP records may

be updated as appropriate. For example, “search

ongoing”; “completed with negative results”;

“returned to traveler”; or “seized as evidence of

a crime.”

Special Agents are responsible for complying

with the provisions of this Directive, knowing

the limits of ICE authority, using this authority

judiciously, and ensuring comprehension and

completion of any training programs relevant to

border searches of electronic devices as may be

required by ICE.

PROCEDURES.

Border Searches by ICE Special Agents.

Appendix 30a

1) Authorization to Conduct Border Search.

Border searches of electronic devices must be

performed by an ICE Special Agent who

meets the definition of “customs officer”

under 19 U.S.C. § 1401(i), or another

properly authorized officer with border

search authority, such as a CBP Officer or

Border Patrol Agent, persons cross

designated by ICE as customs officers, and

persons whose assistance to ICE is

demanded under 19 U.S.C. § 507.

2) Knowledge and Presence of the Traveler. To

the extent practicable, border searches

should be conducted in the presence of, or

with the knowledge of, the traveler. When

not practicable due to law enforcement,

national security, or other operational

concerns, such circumstances are to be noted

by the Special Agent in appropriate ICE

systems. Permitting an individual to be

present in the room during a search does not

necessarily mean that the individual will be

permitted to witness the search itself. If

permitting an individual to witness the

search itself could reveal law enforcement

techniques or potentially compromise other

operational concerns, the individual will not

be permitted to observe the search.

3) Consent Not Needed. At no point during a

border search of electronic devices is it

necessary to ask the traveler for consent to

search.

4) Continuation of the Border Search. At any

point during a border search, electronic

Appendix 31a

8.2.

devices, or copies of information therefrom,

may be detained for further review either onsite at the place of detention or at an off-site

location, including a location associated with

a demand for assistance from an outside

agency or entity (see Section 8.4).

5) Originals. In the event electronic devices are

detained, the Special Agent should consider

whether it is appropriate to copy the

information therefrom and return the device.

When appropriate, given the facts and

circumstances of the matter, any such device

should be returned to the traveler as soon as

practicable. Consultation with the Office of

the Chief Counsel is recommended when

determining whether to retain a device in an

administrative immigration proceeding.

Devices will be returned to the traveler as

expeditiously as possible at the conclusion of

a negative border search.

Chain of Custody.

1) Detentions of electronic devices. Whenever

ICE detains electronic devices, or copies of

information therefrom, the Special Agent

will initiate the correct chain of custody form

or other appropriate documentation.

2) Seizures of electronic devices for criminal

purposes. Whenever ICE seizes electronic

devices, or copies of information therefrom,

the Special Agent is to enter the seizure into

the appropriate ICE systems. Additionally,

the seizing agent must complete the correct

chain of custody form or other appropriate

documentation.

Appendix 32a

8.3.

3) Retention

electronic

devices

for

administrative

immigration

purposes.

Whenever ICE retains electronic devices, or

copies of information therefrom, or portions

thereof, for administrative immigration

purposes pursuant to 8 U.S.C. § 1357, the

Special Agent is to record such retention in

appropriate ICE systems and is to include

the location of the retained files, a summary

thereof, and the purpose for retention.

4) Notice to traveler. Whenever ICE detains,

seizes, or retains original electronic devices,

the Special Agent is to provide the traveler

with a copy of the applicable chain of custody

form or other appropriate documentation.

Duration of Border Search.

1) Special Agents are to complete the search of

detained electronic devices, or copies of

information therefrom, in a reasonable time

given the facts and circumstances of the

particular search. Searches are generally to

be completed within 30 calendar days of the

date of detention, unless circumstances exist

that warrant more time. Such circumstances

must be documented in the appropriate ICE

systems. Any detention exceeding 30

calendar days must be approved by a Group

Supervisor or equivalent, and approved

again every 15 calendar days thereafter, and

the specific justification for additional time

documented in the appropriate ICE systems.

2) Special Agents seeking assistance from

other Federal agencies or non-Federal

entities are responsible for ensuring that the

Appendix 33a

results of the assistance are received in a

reasonable time (see Section 8.4(5)).

3) In determining “reasonable time,” courts

have reviewed the elapsed time between the

detention and the completion of the border

search, taking into account any additional

facts and circumstances unique to the case.

As such, ICE Special Agents are to document

the progress of their searches, for devices

and copies of information therefrom, and

should consider the following factors:

a) The amount of information needing

review;

b) Whether the traveler was deprived of his

or her property and, if so, whether the

traveler was given the option of

continuing his or her journey with the

understanding that ICE would return the

property once its border search was

complete or a copy could be made;

c) Whether assistance was sought and the

type of such assistance;

d) Whether and when ICE followed up with

the agency or entity providing assistance

to ensure a timely review;

e) Whether the traveler has taken

affirmative steps to prevent the search of

his or her property in a timely fashion;

and

f) Any unanticipated exigency that may

arise.

Appendix 34a

8.4.

Assistance by Other Federal Agencies and

Non-Federal Entities.

1) Translation,

Decryption,

and

Other

Technical Assistance.

a) During a border search, Special Agents

may encounter information in electronic

devices

that

presents

technical

difficulties, is in a foreign language,

and/or encrypted. To assist ICE in

conducting a border search or in

determining the meaning of such

information, Special Agents may demand

translation, decryption, and/or technical

assistance from other Federal agencies or

non-Federal entities.

b) Special Agents may demand such

assistance

absent

individualized

suspicion.

c) Special Agents shall document such

demands in appropriate ICE systems.

2) Subject Matter Assistance.

a) During a border search, Special Agents

may encounter information in electronic

devices that are not in a foreign language

or encrypted, or that do not require other

technical assistance, in accordance with

Section 8.4(1), but that nevertheless

requires referral to subject matter

experts to determine whether the

information is relevant to the laws

enforced and administered by ICE. For

the purpose of obtaining such subject

matter expertise, Special Agents may

Appendix 35a

create and transmit a copy of such

information to other Federal agencies or

non-Federal entities.

b) Special Agents may demand such

assistance when they have reasonable

suspicion of activities in violation of the

laws enforced by ICE.

c) Special Agents shall document such

demands in appropriate ICE systems.

3) Demand Letter. Unless otherwise governed

by a Memorandum of Understanding or

similar mechanism, each demand for

assistance is to be in writing (e.g., letter or

email), approved by a supervisor, and

documented in the appropriate ICE systems.

Demands are to detail the context of the

search requested, ICE’s legal parameters

regarding the search, retention, and sharing

of any information found during the

assistance, and relevant timeframes,

including those described in this Directive.

4) Originals. For the purpose of obtaining

subject matter assistance, Special Agents

may create and transmit copies of

information to other Federal agencies or

non-Federal entities. Original electronic

devices should be transmitted only when

necessary to render the demanded

assistance.

5) Time for Assistance and Responses

Required.

a) Assistance is to be accomplished within a

reasonable period of time in order to

Appendix 36a

preserve the status of the electronic

devices and the integrity of the border

search.

b) It is the responsibility of the Special

Agent demanding the assistance to

ensure timely responses from assisting

agencies or entities and to act in accord

with section 8.3 of this Directive. In

addition, Special Agents shall:

i) Inform assisting agencies or entities

that they are to provide results of

assistance as expeditiously

possible;

ii) Ensure that assisting agencies and

entities are aware that responses to

ICE must include any findings,

observations, and conclusions drawn

from their review that may relate to

the laws enforced by ICE;

iii) Contact the assisting agency or entity

to get a status report on the demand

within the first 30 calendar days;

iv) Remain in communication with the

assisting agency or entity until results

are received;

v) Document all communications and

actions in appropriate ICE systems;

and

vi) Consult with a supervisor to

determine appropriate action if the

timeliness of results is a concern. If a

demand for assistance is revoked, the

Special Agent is to ensure all

Appendix 37a

8.5.

electronic devices are returned to ICE

as expeditiously as possible.

Retention, Sharing, Safeguarding, And

Destruction.

1) By ICE

a) Seizure and Retention with Probable

Cause. When Special Agents determine

there is probable cause of unlawful

activity-based on a review of information

in electronic devices or on other facts and

circumstances-they may seize and retain

the electronic device or copies of

information therefrom, or relevant

portions thereof, as authorized by law.

b) Retention of Information in ICE Systems.

To the extent authorized by law, ICE may

retain

information

relevant

immigration, customs, and other law

enforcement matters in ICE systems if

such retention is consistent with the

privacy and data protection policies of the

system in which such information is

retained. For example, information

entered into TECS during the course of

an investigation will be retained

consistent with the policies governing

TECS.

c) Sharing. Copies of information from

electronic devices, or portions thereof,

which are retained in accordance with

this section, may be shared by ICE with

Federal, state, local, and foreign law

enforcement agencies in accordance with

applicable law and policy. Sharing must

Appendix 38a

be in compliance with the Privacy Act and

applicable ICE privacy policies, such as

the ICE Search, Arrest, and Seizure

System of Records Notice.

d) Safeguarding Data During Storage and

Transmission. ICE will appropriately

safeguard information detained, copied,

retained, or seized under this directive

while in ICE custody and during

transmission to an outside entity.

Appropriate safeguards include keeping

materials in locked cabinets or rooms,

documenting and tracking originals and

copies to ensure appropriate disposition,

and appropriate safeguards during

transmission such as encryption of

electronic data or physical protections

(e.g., locked containers). Any suspected

loss or compromise of information that

contains personal data detained, copied,

or seized under this directive must be

reported immediately to the ICE Service

Desk.

e) Destruction. Copies of information from

electronic devices, or portions thereof,

determined to be of no relevance to ICE

will be destroyed in accordance with ICE

policy governing the particular form of

information. Such destruction must be

accomplished by the responsible Special

Agent within seven business days after

conclusion of the border search unless

circumstances require additional time,

which must be approved by a supervisor

Appendix 39a

and documented in appropriate ICE

systems. All destructions must be

accomplished no later than 21 calendar

days after conclusion of the border

search.

2) By Assisting Agencies

a) Retention

during

Assistance.

All

electronic devices, whether originals or

copies of information therefrom, provided

to an assisting Federal agency may be

retained by that agency for the period of

time needed to provide the requested

assistance to ICE.

b) Return or Destruction. At the conclusion

of the requested assistance, all electronic

devices and data must be returned to ICE

as expeditiously as possible. In the

alternative, the assisting Federal agency

may certify to ICE that any copies in its

possession have been destroyed or it may

advise ICE in accordance with Section

8.5(2)(c). In the event that any original

electronic devices were transmitted, they

must not be destroyed; they are to be

returned to ICE.

c) Retention with Independent Authority.

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

information is of national security or

intelligence value. In such cases, the

retaining agency must advise ICE of its

decision to retain certain information on

Appendix 40a

8.6.

its own authority. In the event that any

original

electronic

devices

were

transmitted, the assisting Federal agency

may make a copy of information

therefrom for its retention; however, any

originals must be returned to ICE.

3) By Non-Federal Entities

a) ICE may provide copies of information

from electronic devices to an assisting

non-Federal entity, such as a private

language translation or data decryption

service, only for the period of time needed

by that entity to render the requested

assistance.

b) Upon the completion of assistance, all

copies of the information in the

possession of the entity must be returned

to ICE as expeditiously as possible. Any

latent copies of the electronic data on the

systems of the non-Federal entity must

also be destroyed so that recovery of the

data is impractical.

Review, Handling, and Sharing of Certain

Types of Information.

1) Border Search. All electronic devices

crossing U.S. borders are subject to border

search; a claim of privilege or personal

information does not prevent the search of a

traveler’s information at the border.

However, the nature of certain types of

information are subject to special handling

by Special Agents, whether through policy or

laws such as the Privacy Act and the Trade

Secrets Act.

Appendix 41a

2) Types of Information

a) Business or Commercial Information. If,

in the course of a border search, Special

Agents encounter business or commercial

information, such information is to be

treated

business

confidential

information. Depending on the nature of

the information presented, the Trade

Secrets Act, the Privacy Act, and other

laws may specifically govern or restrict

handling of the information, including

criminal penalties for unauthorized

disclosure.

b) Legal Information. Special Agents may

encounter information that appears to be

legal in nature, or an individual may

assert that certain information is

protected by the attorney-client or

attorney work product privilege. If

Special Agents suspect that the content of

such a document may constitute evidence

of a crime or otherwise pertain to a

determination within the jurisdiction of

ICE, the ICE Office of the Chief Counsel

or the appropriate U.S. Attorney’s Office

must be contacted before beginning or

continuing a search of the document and

this consultation shall be noted in

appropriate ICE systems.

c) Other Sensitive Information. Other

possibly sensitive information, such as

medical records and work-related

information carried by journalists shall

be handled in accordance with all

Appendix 42a

8.7.

8.8.

10.

applicable federal law and ICE policy.

Although there is no Federal legal

privilege pertaining to the doctor-patient

relationship, the inherent nature of

medical information warrants special

care for such records. Questions

regarding the review of these materials

shall be directed to the ICE Office of the

Chief Counsel and this consultation shall

be noted in appropriate ICE systems.

3) Sharing. Information that is determined to

be protected by law as privileged or sensitive

is to be handled consistent with the laws and

policies governing such information.

Measurement. ICE Headquarters will develop

appropriate mechanisms to ensure that statistics

regarding border searches of electronic devices,

and the results thereof, can be generated from

ICE systems using data elements entered by

Special Agents pursuant to this Directive.

Audit. ICE Headquarters will develop and

periodically administer an auditing mechanism to

review whether border searches of electronic

devices are being conducted in conformity with

this Directive.

ATTACHMENTS. None.

NO PRIVATE RIGHT STATEMENT. This

Directive is an internal policy statement of ICE.

It is not intended to, and does not create any

rights, privileges, or benefits, substantive or

procedural, enforceable by any party against the

United States, its departments, agencies, or other

entities, its officers or employees; or any other

person.

Appendix 43a

Approved s/ John Morton

John Morton

Assistant Secretary

U.S. Immigration and Customs

Enforcement

Appendix 44a

U.S. CUSTOMS AND BORDER PROTECTION

CBP DIRECTIVE NO. 3340-049

DATE: August 20, 2009

ORIGINATING OFFICE: FO:TO

SUPERSEDES:

REVIEW DATE:

August 2012

SUBJECT: BORDER SEARCH OF

ELECTRONIC DEVICES

CONTAINING INFORMATION

PURPOSE. To provide guidance and

standard operating procedures for searching,

reviewing, retaining, and sharing information

contained in computers, disks, drives, tapes, mobile

phones and other communication devices, cameras,

music and other media players, and any other

electronic or digital devices, encountered by U.S.

Customs and Border Protection (CBP) at the border,

both inbound and outbound, to ensure compliance

with customs, immigration, and other laws that CBP

is authorized to enforce.

These searches are part of CBP’s long-standing

practice and are essential to enforcing the law at the

U.S. border. Searches of electronic devices 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. Finally, searches at the

border are often integral to a determination of

admissibility under the immigration laws.

Appendix 45a

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

Interdiction Agents, Marine Interdiction Agents, and

other employees authorized by law to perform

searches at the border, the functional equivalent of

the border (FEB), or the extended border shall adhere

to the policy described in this Directive.

2.3

This Directive governs border search

authority only. It does not limit CBP’s authority to

conduct other lawful searches at the border, e.g.,

pursuant to a warrant, consent, or incident to an

arrest; 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., a shipment of hundreds of

laptop computers transiting from the factory to the

distributor).

2.5

This Directive does not supersede Restrictions

on Importation of Seditious Matter, Directive 2210001A. Seditious materials encountered through a

border search should continue to be handled pursuant

to Directive 2210-001A 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 FEB, or extended

Appendix 46a

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), ICE 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 turns such over

to ICE for analysis and investigation (with

appropriate documentation), ICE policy will apply

once it is received by ICE.

DEFINITIONS.

3.1

Officer. A Customs and Border Protection

Officer, Border Patrol Agent, Air Interdiction Agent,

Marine Interdiction Agent, Internal Affairs Agent, or

any other official of CBP authorized to conduct border

searches.

3.2

Electronic Device. Includes any devices that

may contain information, such as computers, disks,

drives, tapes, mobile phones and other communication

devices, cameras, music and other media players, and

any other electronic or digital devices.

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 1400-05C.

3.4

Border Search of Information. Excludes

actions taken to determine if a device functions (e.g.,

turning an electronic device on and off), or actions

taken to determine if contraband is concealed within

the device itself. The definition also excludes the

Appendix 47a

review of information voluntarily provided by an

individual in an electronic format (for example, when

an individual voluntarily shows an e-ticket on an

electronic device to an Officer).

AUTHORITY/REFERENCES. 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, 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 4410001B;

Disclosure

Business

Confidential

Information to Third Parties, Directive 1450-015;

Accountability and Control of Custody Receipt for

Detained and Seized Property (CF6051), Directive

5240-005.

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 In the course of a border search, with or

without individualized suspicion, an Officer may

examine electronic devices and may review and

analyze the information encountered at the border,

subject to the requirements and limitations provided

herein and applicable law.

5.1.3 Searches of electronic devices will be

documented in appropriate CBP systems of records

and should be conducted in the presence of a

supervisor. In circumstances where operational

Appendix 48a

considerations prevent a supervisor from remaining

present for the entire search, or where a supervisory

presence is not practicable, the examining Officer

shall, as soon as possible, notify the appropriate

supervisor about the search and any results thereof.

5.1.4 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, or other

operational considerations that make it inappropriate

to permit the individual to remain present. Permitting

an individual to be present in the room during a

search does not necessarily mean that the individual

will be permitted to witness the search itself. If

permitting an individual to witness the search itself

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 may encounter materials that appear

to be legal in nature, or an individual may assert that

certain information is protected by attorney-client or

attorney work product privilege. Legal materials are

not necessarily exempt from a border search, but they

may be subject to the following special handling

procedures: If an Officer suspects that the content of

such a material may constitute evidence of a crime or

otherwise pertain to a determination within the

jurisdiction of CBP, the Officer must seek advice from

the CBP Associate/Assistant Chief Counsel before

conducting a search of the material, and this

consultation shall be noted in appropriate CBP

Appendix 49a

systems of records. CBP counsel will coordinate with

the U.S. Attorney’s Office as appropriate.

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, and this consultation shall be noted in

appropriate CBP systems of records.

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.

5.2.4 Information that is determined to be protected

by law as privileged or sensitive will only be shared

with federal agencies that have mechanisms in place

to protect appropriately such information.

5.3

Detention and Review in Continuation of

Border Search of Information

5.3.1 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

Appendix 50a

possible. Unless extenuating circumstances exist, the

detention of devices ordinarily should not exceed five

(5) days.

5.3.1.1 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, 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, 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 of records.

5.3.1.2 Destruction. Except as noted in section 5.4 or

elsewhere in this Directive, if after reviewing the

information pursuant to the time frames discussed in

section 5.3, there is not probable cause to seize it, any

copies of the information must be destroyed, and any

electronic device must be returned. Upon this

determination that there is no value to the

information copied from the device, the copy of the

information is 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 of records and which must be no later than

twenty one (21) days after such determination. The

Appendix 51a

destruction shall be noted in appropriate CBP

systems of records.

5.3.1.3 Notification of Border Search. When a border

search of information is conducted on an electronic

device, and when the fact of conducting this search

can be disclosed to the individual transporting the

device without hampering national security or law

enforcement or other operational considerations, the

individual may be notified of the purpose and

authority for these types of searches, 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.

5.3.1.4 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 6051D to the

individual prior to the individual’s departure.

5.3.2 Assistance by Other Federal Agencies.

5.3.2.1 The use of other federal agency analytical

resources outside of CBP and ICE, such as

translation, decryption, and subject matter expertise,

may be needed to assist CBP in reviewing the

information contained in electronic devices or to

determine the meaning, context, or value of

information contained in electronic devices.

5.3.2.2 Technical Assistance – With or Without

Reasonable Suspicion. Officers may sometimes have

technical difficulties in conducting the search of

electronic devices such that technical assistance is

needed to continue the border search. Also, in some

cases Officers may encounter information in

electronic devices that requires technical assistance to

Appendix 52a

determine the meaning of such information, such as,

for example, information that is in a foreign language

and/or encrypted (including information that is

password protected or otherwise not readily

reviewable). In such situations, Officers may transmit

electronic devices or copies of information contained

therein to seek technical assistance from other federal

agencies. Officers may seek such assistance with or

without individualized suspicion.

5.3.2.3 Subject Matter Assistance by Other Federal

Agencies – With Reasonable Suspicion. In addition to

encountering information in electronic devices that is

in a foreign language, encrypted, or requires technical

assistance, Officers may encounter information that

requires referral to subject matter experts in other

federal agencies to determine the meaning, context, or

value of information contained therein as it relates to

the laws enforced and administered by CBP.

Therefore, Officers may transmit electronic devices or

copies of information contained therein to other

federal agencies for the purpose of obtaining subject

matter assistance when they have reasonable

suspicion of activities in violation of the laws enforced

by CBP. While many factors may result in reasonable

suspicion, the presence of an individual on a

government-operated

and

government-vetted

terrorist watch list will be sufficient to create

reasonable suspicion of activities in violation of the

laws enforced by CBP.

5.3.2.4 Approvals for seeking translation, decryption,

and subject matter assistance. Requests for

translation, decryption, and subject matter assistance

require supervisory approval and shall be properly

documented and recorded in CBP systems of records.

Appendix 53a

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.

5.3.2.5 Electronic devices should be transmitted only

when necessary to render the requested translation,

decryption, or subject matter assistance. Otherwise, a

copy of such information should be transmitted in lieu

of the device in accord with this Directive.

5.3.2.6 When information from an electronic device is

transmitted to another federal agency for translation,

decryption, or subject matter assistance, the

individual will be notified of this transmission unless

CBP determines, in consultation with the receiving

agency or other agency as appropriate, that

notification would be contrary to national security or

law enforcement or other operational interests. If

CBP’s transmittal seeks assistance regarding possible

terrorism, or if the individual is on a governmentoperated and government-vetted terrorist watch list,

the individual will not be notified of the transmittal or

his or her presence on a watch list. When notification

is made to the individual, the Officer will annotate the

notification in CBP systems of records and on the

Form 6051D.

5.3.3 Responses and Time for Assistance

5.3.3.1 Responses Required. Agencies receiving a

request for assistance in conducting a border search

are to provide such assistance as expeditiously as

possible. Where subject matter assistance is

requested, responses should include all appropriate

Appendix 54a

findings, observations, and conclusions relating to the

laws enforced by CBP.

5.3.3.2 Time for Assistance. Responses from assisting

agencies 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, or equivalent level manager, responses

from an assisting agency should be received within

fifteen (15) days. If the assisting agency is unable to

respond in that period of time, the Director Field

Operations, Chief Patrol Agent, Director, Air

Operations, Director, Marine Operations, or

equivalent level manager may permit extensions in

increments of seven (7) days.

5.3.3.3 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 being

provided, the timeliness of assistance, or any other

articulable reason, the request for assistance may be

revoked, and the CBP supervisor may require the

assisting agency to return to CBP all electronic

devices that had been provided to the assisting

agency, and any copies thereof, as expeditiously as

possible, except as noted in 5.4.2.3. Any such

revocation shall be documented in appropriate CBP

systems of records. When CBP has revoked a request

for assistance because of the lack of a timely response,

CBP may initiate the request with another agency

pursuant to the procedures outlined in this Directive.

5.3.3.4 Destruction. Except as noted in section 5.4.1

below or elsewhere in this Directive, if after reviewing

information, probable cause to seize the information

Appendix 55a

does not exist, CBP will retain no copies of the

information.

5.4

Retention and Sharing of Information

Found in Border Searches

5.4.1 Retention and Sharing of Information Found

in Border Searches

5.4.1.1 Retention with Probable Cause. Officers may

seize and retain an electronic device, or copies of

information from the device, when, based on a review

of the 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

thereof, contains evidence of or is the fruit of a crime

that CBP is authorized to enforce.

5.4.1.2 Retention of Information in CBP Privacy ActCompliant 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 privacy and

data protection standards of the system of records in

which such information is retained. For example,

information 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 ENFORCE or

other systems as may be appropriate and consistent

with the policies governing such systems.

5.4.1.3 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

Appendix 56a

foreign law enforcement agencies to the extent

consistent with applicable law and policy.

5.4.1.4 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 mandated by statute,

Presidential Directive, or OHS policy. Consistent with

6 U.S.C. 122(d)(2) and other applicable law and policy,

CBP, as a component of OHS, will promptly share any

terrorism information encountered in the course of a

border search with elements of the federal

government responsible for analyzing terrorist threat

information. In the case of such terrorism information

sharing, the element 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.

5.4.1.5 Safeguarding Data During Storage and

Transmission. CBP will appropriately safeguard

information retained, copied, or seized under this

Directive and during transmission to another federal

agency. Appropriate safeguards include keeping

materials in locked cabinets or rooms, documenting

and tracking copies to ensure appropriate disposition,

and other safeguards during transmission 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 Port Director, Patrol Agent in Charge or

Appendix 57a

equivalent level manager and the CBP Office of

Internal Affairs.

5.4.1.6 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.

5.4.2 Retention by Agencies Providing Translation,

Decryption, or Subject Matter Assistance

5.4.2.1 During Assistance. All electronic devices, or

copies of information contained therein, provided to

an assisting federal agency may be retained by that

agency for the period of time needed to provide the

requested assistance to CBP or in accordance with

section 5.4.2.3 below.

5.4.2.2 Return or Destruction. At the conclusion of

the requested assistance, all information must be

returned to CBP as expeditiously as possible, and the

assisting agency must advise CBP in accordance with

section 5.3.3 above. In addition, the assisting federal

agency should destroy all copies of the information

transferred to that agency unless section 5.4.2.3 below

applies. In the event that any electronic devices are

transmitted, they must not be destroyed; they are to

be returned to CBP unless seized by the assisting

agency based on probable cause or retained per

5.4.2.3.

5.4.2.3 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 shall assume 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

Appendix 58a

to do so-for example, when the information 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.

5.5

Reporting Requirements

5.5.1 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.

5.5.2 In instances where an electronic device or

copy of information contained therein is forwarded

within CBP as noted in section 5.3.1, the receiving

Officer is responsible for recording all information

related to the search from the point of receipt forward

through the final disposition.

5.5.3 Reporting requirements for this Directive are

in addition to, and do not replace, any other applicable

reporting requirements.

5.6

Management Requirements

5.6.1 The duty supervisor shall ensure that the

Officer completes a thorough inspection and that all

notification,

documentation,

and

reporting

requirements are accomplished.

Appendix 59a

5.6.2 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.

5.6.3 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 federal

agency.

5.6.4 The Director, Field Operations, Chief Patrol

Agent, Director, Air Operations, Director, Marine

Operations, 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

information contained therein in order to ensure

compliance with the procedures outlined in this

Directive.

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.

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.

NO PRIVATE RIGHT CREATED. This

Directive is an internal policy statement of U.S.

Appendix 60a

Customs and Border Protection and does not create or

confer any rights, privileges, or benefits on any person

or party.

DISCLOSURE. This Directive may be

shared with the public.

10.

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.

s/ Jayson P. Ahern

Acting Commissioner

U.S. Customs and Border Protection

Appendix 61a

U.S. CUSTOMS AND BORDER PROTECTION

CBP 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

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

They can be vital to risk assessments that otherwise

Appendix 62a

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.

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.

2.3

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 if a 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

Appendix 63a

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,

response

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 of

laptop computers transiting from the factory to the

distributor).

2.5

This Directive does not supersede Restrictions

on Importation of Seditious Matter, Directive 2210001A. Seditious materials encountered through a

border search should continue to be handled pursuant

to Directive 2210-001A 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 3340032 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

Appendix 64a

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.

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

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.

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 4410-001B;

Disclosure of Business Confidential Information to

Third Parties, Directive 1450-015; Accountability and

Control of Custody Receipt for Detained and Seized

Property (CF605 l ), Directive 5240-005.

Appendix 65a

The plenary authority of the Federal Government to

conduct searches and inspections of persons and

merchandise crossing our nation’s borders is wellestablished 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. Boumelhem, 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).

Appendix 66a

As a constitutional matter, border search authority is

premised in part on a reduced expectation of privacy

associated with international travel. See FloresMontano, 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 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

Appendix 67a

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 wellestablished, 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.

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

Appendix 68a

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.

5.1.4 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.

Appendix 69a

Many factors may create reasonable suspicion or

constitute a national security concern; examples

include the existence of a relevant national securityrelated lookout in combination with other articulable

factors as appropriate, or the presence of an

individual

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.

Appendix 70a

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.

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

Appendix 71a

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 PasscodeProtected or Encrypted Information

5.3.1 Travelers are obligated to present electronic

devices and the information contained therein in a

Appendix 72a

condition that allows inspection of the 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.

5.3.4 Nothing in this Directive limits CBP’s ability,

with respect to any device presented 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

Appendix 73a

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

5.4.1 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 reapproved in increments of no more than seven (7)

Appendix 74a

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 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

Appendix 75a

to continue the search, the Officer detaining the

device shall issue a completed Form 6051D 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.

Appendix 76a

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.

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.

When notification is made to the individual, the

Officer will annotate the notification in CBP systems

and on the Form 6051D.

Appendix 77a

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

assisting 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

Appendix 78a

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 device, when, based on a review

of the 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 ActCompliant 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

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.

Appendix 79a

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 of DHS, 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

Appendix 80a

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 electronic

devices are conveyed, they must not be destroyed;

they are to be returned to CBP unless seized 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

Appendix 81a

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 information 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.

Appendix 82a

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 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.

Appendix 83a

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.

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.

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.

REVIEW. This Directive shall be reviewed

and updated, as necessary, at least every three years.

DISCLOSURE. This Directive may be

shared with the public.

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).

s/ Kevin K. McAleenan

Acting Commissioner

Appendix 84a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GEORGE ANIBOWEI,

Plaintiff,

KIRSTJEN M. NIELSEN, U.S.

Secretary of Homeland Security, in her

official capacity; KEVIN K.

MCALEENAN, Commissioner of U.S.

Customs and Border Protection, in his

official capacity; RONALD D.

VITIELLO, Acting Director of U.S.

Immigration and Customs Enforcement,

in his official capacity; DAVID P.

PEKOSKE, Administrator of the

Transportation Security

Administration, in his official capacity;

WILLIAM P. BARR, Attorney General

of the United States, in his official

capacity; U.S. DEPARTMENT OF

HOMELAND SECURITY; U.S.

CUSTOMS AND BORDER

PROTECTION; U.S. IMMIGRATION

AND CUSTOMS ENFORCEMENT;

TRANSPORTATION SECURITY

ADMINISTRATION,

Case No.

3:16-cv-03495-D

Defendants.

VERIFIED SECOND AMENDED COMPLAINT

FOR VACATUR OF UNLAWFUL AGENCY

POLICIES AND DECLARATORY AND

INJUNCTIVE RELIEF

In Riley v. California, 573 U.S. 373 (2014),

the Supreme Court unanimously held that law

enforcement must not search digital information on a

Appendix 85a

cell phone without first obtaining a warrant, except in

narrow exigent circumstances. The Justices based

this holding on the unique character of cell phones. Id.

at 375. Nearly every person carries one, and nearly

every cell phone has a “digital record of nearly every

aspect” of a person’s life stored on it. The Supreme

Court thus held that warrants are required to search

them, even in circumstances when government agents

have long been allowed to search a person’s other

effects for some other function (such as a search

incident to arrest) without a warrant or even

suspicion.

This case is Riley at the border. Riley says

that only a warrant supported by probable cause can

justify the search of a cell phone except in exigent

circumstances. But policies promulgated by U.S.

Customs and Border Protection (CBP) and U.S.

Immigration and Customs Enforcement (ICE),

invoking the “border search exception,” permit border

agents to search cell phones without warrants,

probable cause, or reasonable suspicion for no other

reason than that an individual is seeking to cross an

international border. Those same policies allow border

agents to download (i.e., seize) and store the

information on a seized cell phone forever without a

warrant or probable cause. Again, all for no other

reason but that an individual has crossed an

international border.

In other words, according to CBP and ICE

regulations, the government may require a person to

turn over a “digital record of nearly every aspect” of

that person’s life to government agents, and the

government may store it forever, for no other reason

than because that person took a flight from Toronto to

Appendix 86a

Dallas. The government could not search a person’s

house just because that person crossed the border. But

“a cell phone search would typically expose to the

government far more than the most exhaustive search

of a house.” Riley, 573 U.S. at 376.

CBP and ICE follow their policies. They

perform tens of thousands of cell phone searches each

year under their policies. CBP agents, relying on CBP

and ICE directives and authority, have searched

plaintiff George Anibowei’s cell phone on at least five

occasions. On one of those occasions, they downloaded

all of the data off the phone and kept it. To the best of

Mr. Anibowei’s knowledge, they keep it to this day.

The need to apply Riley’s warrant

requirement at the border only grows. Lawyers use

electronic devices to store interview notes and briefs

for their clients. Journalists do the same with their

records of conversations with whistleblowers and

confidential sources. And everyday people use these

devices to catalog their most sensitive and personal

thoughts, conversations, and life events in extensive

detail—from data about their health, to condolences

on the loss of a loved one, to political rants emailed to

friends, to gossip about other parents in the PTA, to

intimate messages from a romantic partner. 1

1 A recent survey suggests that half of all adults had not just

received a sext or explicit photo, but had actually stored sexts

and explicit images that they receive. Sext Much? If So, You’re

Not Alone, Sci. Am., https://www.scientificamerican.com/article/

sext-much-if-so-youre-not-alone; see also Emily C. Stasko &

Pamela A. Geller, Reframing Sexting as a Positive Relationship

Behavior, Am. Psych. Ass’n (Aug. 2015), https://www.apa.org/

news/press/releases/2015/ 08/reframing-sexting.pdf.

Appendix 87a

A person does not give up the right to privacy

and invite scrutiny of “nearly every aspect” of their

lives simply by crossing the U.S. border. The average

person reasonably believes that the communications

and photographs sent, received, and stored on a phone

are protected from arbitrary and suspicionless

searches by the government—not just some of the

time, not just in the Nation’s interior, but all of the

time. But every time a person enters or exits the

United States with a phone or laptop, that person’s

devices come within the scope of CBP and ICE policies

that give agents unilateral authority to search every

piece of stored information—without a warrant,

probable cause, or even a reasonable suspicion of any

wrongdoing.

CBP and ICE’s arbitrary and suspicionless

search policies violate the time-honored presumption

of privacy in sensitive communications, intimate

relationships, and confidential information. And they

violate the First and Fourth Amendments to the

Constitution.

INTRODUCTION

By early 2018, 95% of Americans owned a cell

phone, and 77% of Americans owned a smartphone. 2

Approximately two-thirds of all people alive in the

world today, counting every age group and country,

also own a cell phone. 3

Mobile Fact Sheet, Pew Research Center: Internet &

Technology (Feb. 5, 2018), http://www.pewinternet.org/factsheet/mobile/.

3 Paul Sawers, 5 Billion People Now Have a Mobile Phone

Connection, According to GSMA Data, Venture Beat (June 13,

Appendix 88a

As the Supreme Court recognized in 2014,

cell phones, and in particular today’s smartphones,

“place vast quantities of personal information literally

in the hands of individuals.” Riley v. California, 573

U.S. 373, 386 (2014). The nature of cell phones makes

the search of a cell phone by law enforcement

extraordinarily invasive and potentially humiliating.

Thus, “[a]llowing the police to scrutinize such records

on a routine basis is quite different from allowing

them to search a personal item or two in the

occasional case.” Id. at 395.

10. For this reason, when the Supreme Court has

been called to weigh in on law enforcement searches

and seizures of cell phones, it has uniformly held that

the collection of data from cell phones requires the

safeguard of a particularized warrant supported by

probable cause. See Riley, 573 U.S. 373; Carpenter v.

United States, 138 S. Ct. 2206, 2209 (2018).

11. Nonetheless, some relics of policy persist from

the era before the Supreme Court decided its first cellphone-search cases.

12. In August 2009, U.S. Customs and Border

Protection (CBP) and U.S. Immigration and Customs

Enforcement (ICE) issued a pair of directives that

permitted officials of the two agencies to search

“electronic devices”—defined as devices that “contain

information, such as computers, disks, drives, tapes,

mobile phones and other communication devices”—

“[i]n the course of a border search, with or without

2017), https://venturebeat.com/2017/06/13/5-billion-people-nowhave-a-mobile-phone-connection-according-to-gsma-data/.

Appendix 89a

individualized suspicion.” 4 The directives specifically

authorize CBP and ICE officials to conduct

warrantless and suspicionless searches, including of

privileged and sensitive information like “[l]egal

materials,” “medical records,” and “work-related

information carried by journalists.” 5

13. CBP updated its policy in 2018 to add

nominal safeguards, none of which cures the

structural constitutional defects of the 2009 policy.

CBP’s 2018 directive continues to authorize searches

of electronic devices with zero individualized

suspicion and without any protections for privileged

and sensitive information.

14. CBP and ICE’s extraordinarily broad policies

expose one million travelers a day to the threat of

having their most sensitive information searched and

seized without any sort of individualized suspicion.

15. Among the untold number of people whose

sensitive personal information has been swept up in

this policy is plaintiff George Anibowei. Mr. Anibowei

is a naturalized U.S. citizen born in Nigeria, and is the

sole proprietor of his own law firm in Texas. Several

times a year, he travels for work and personal

reasons, including to see friends and relatives in

4 U.S. Customs and Border Protection, Border Search of

Electronic Devices Containing In-formation, CBP Directive No.

3340-49 (Aug. 20, 2009), https://www.eff.org/document/customsand-border-protection-directive-no-3340-049-border-searchelectronic-devices; see also U.S. Immigration and Customs

Enforcement, Border Searches of Electronic Devices, ICE

Directive 7-6.1 (Aug. 18, 2009), https://www.dhs.gov/xlibrary/

assets/ice_border_search_electronic_devices.pdf

(containing

nearly identical language).

5 CBP Directive No. 3340-049 (Aug. 20, 2009).

Appendix 90a

Nigeria and other countries. Mr. Anibowei passed

numerous and extensive security checks in the course

of his journey from Nigerian immigrant to naturalized

U.S. citizen. He also passed the additional security

checks required for participation in CBP’s Global

Entry Trusted Traveler Program, and was issued

membership in the program on November 1, 2012.

16. Nonetheless, for reasons unknown to

Mr. Anibowei and that the government will not share,

on October 10, 2016, CBP officers at the Dallas-Fort

Worth Airport seized Mr. Anibowei’s cell phone,

saying that they were going to “copy the hard drive.”

The officers did not ask Mr. Anibowei for his consent

or present him with a search warrant.

17. Mr. Anibowei has had his cell phone searched

a total of at least five times by CBP agents, beginning

with this first search and seizure in 2016. In four of

these instances, Mr. Anibowei saw the agent search

his text messages and other communications. Each of

these searches was authorized by the 2009 ICE and

CBP policies. Each of these searches would similarly

be authorized by the 2018 CBP policy.

18. As an attorney, Mr. Anibowei regularly uses

his smartphone to engage in sensitive and

confidential communications with his immigration

clients. During these searches, it is virtually certain

that

CBP

viewed

and

copied

privileged

communications between Mr. Anibowei and his

clients. CBP’s searches and seizures of Mr. Anibowei’s

privileged client communications, as well as other

sensitive and private information on his phone,

violate both his and his clients’ expectations of privacy

in their privileged communications.

Appendix 91a

19. CBP’s repeated searches and seizures of

Mr. Anibowei’s cell phone also have the potential to

harm Mr. Anibowei’s business. Given that some of

Mr. Anibowei’s clients are adverse to the U.S.

Department of Homeland Security (DHS) in

immigration proceedings, Mr. Anibowei’s inability to

safeguard their information from an agency of DHS

threatens to damage the trust and confidence of his

clients.

20. These

warrantless

and

suspicionless

searches of Mr. Anibowei’s cell phone are

“unreasonable searches and seizures” prohibited by

the Fourth Amendment. The CBP and ICE policies

authorizing warrantless and suspicionless searches of

electronic devices facially violate the Fourth

Amendment.

21. Moreover,

these

warrantless

and

suspicionless searches violate the First Amendment

rights of individuals entering and exiting the United

States. The CBP and ICE policies expose individuals’

sensitive, expressive, and associational information to

arbitrary search by government agents. The everpresent possibility of warrantless and suspicionless

search chills protected expression. This specter

encourages individuals to leave their devices at home

so that they cannot communicate at all, or to censor

their speech if they do carry them.

22. Every day that government agents keep

Mr. Anibowei’s data, the government holds in its

possession the fruits of an unconstitutional search

and seizure. The injury to Mr. Anibowei’s

constitutional rights wrought by the continued

retention of this data continues to this day.

Appendix 92a

23. Mr. Anibowei seeks a declaration that CBP’s

searches of his cell phone were unlawful, and an

injunction requiring that the government destroy his

data. He also seeks vacatur of CBP and ICE’s

unlawful policies.

JURISDICTION AND VENUE

24. This Court has subject matter jurisdiction

over Plaintiff’s federal claims pursuant to 28 U.S.C.

§ 1331 because he challenges federal law and final

agency action under the laws and Constitution of the

United States.

25. 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.

26. Venue is proper in this Court pursuant to 28

U.S.C. § 1391 because a substantial part of the events

or omissions giving rise to Plaintiff’s claims occurred

in this District.

PARTIES

27. Plaintiff George Anibowei is a U.S. citizen

licensed to practice law in the State of Texas since

2002. He resides at 934 Colorado Drive in Allen, TX.

28. Defendant Kirstjen M. Nielsen is the

Secretary of the U.S. Department of Homeland

Security. She oversees DHS and its sub-agencies. She

is sued in her official capacity.

29. Defendant Kevin K. McAleenan is the

Commissioner of U.S. Customs and Border Protection.

He oversees CBP. He is sued in his official capacity.

30. Defendant Ronald D. Vitiello is the Acting

Director of U.S. Immigration and Customs

Appendix 93a

Enforcement. He administers ICE. He is sued in his

official capacity.

31. Defendant David P. Pekoske is Administrator

of the Transportation Security Administration (TSA).

He administers TSA. He is sued in his official

capacity.

32. Defendant William P. Barr is Attorney

General of the United States. He oversees the

Department of Justice and its sub-agencies. He is

sued in his official capacity.

33. Defendant U.S. Department of Homeland

Security (DHS) is a Department of the Executive

Branch of the United States and is an “agency” within

the meaning of 5 U.S.C. § 552(f)(1).

34. Defendant U.S. Customs and Border

Protection (CBP) is a sub-agency of DHS. It is

responsible for administering security checks at

airports and other ports of entry.

35. Defendant U.S. Immigration and Customs

Enforcement (ICE) is a sub-agency of DHS. It plays a

supporting role in administering security checks at

airports and other ports of entry.

36. Defendant

Transportation

Security

Authority (TSA) is a sub-agency of DHS, housed

within CBP. It has particular responsibility for

administering security checks at airports.

BACKGROUND

Searches and Seizures of Electronic

Data

37. Ninety-five percent of Americans and

approximately two-thirds of all people in the world

own a cell phone. These numbers are only projected to

Appendix 94a

grow. By 2020, an estimated 80% of all adults in the

world will own not just a cell phone but a smartphone,

with all the enhanced storage capability this implies.

38. These devices are capable of containing

extraordinary amounts of information, far beyond any

other object a traveler could possibly carry. Today’s

iPhones, for instance, are capable of storing up to 256

gigabytes of data 6—enough to hold hundreds of

thousands of emails, documents, or images. A typical

laptop computer can store double that. 7

39. These devices not only store massive

amounts of information, but also the most sensitive

and personal information in a user’s life. Electronic

devices may store virtually all of an individual’s

communications—texts, voice mails, emails, and

social-media posts—as well as detailed information on

his location; his financial, legal, and medical history;

his contacts; and his browsing and social-media

history. Applications on the market today allow cell

phone, tablet, and laptop users to store and analyze

detailed information about such deeply personal

topics as disease and pregnancy status, weight loss

and physical fitness, income and credit history, and

relationship status. Other applications could be used

to build a detailed record of a person’s sexual

orientation and sexual history, political beliefs, and

religious affiliation.

6 About Storage on Your Device and in iCloud, Apple.com,

https://support.apple.com/en-us/HT206504 (last visited Mar. 12,

2019).

7 15-inch MacBook Pro, Apple.com,

https://www.apple.com/macbook-pro/specs/ (last visited Mar. 12,

2019).

Appendix 95a

40. The data on some electronic devices, in the

aggregate, can be used to reconstruct virtually every

aspect of a person’s career, personal life, habits,

beliefs, associations, and daily routines. Indeed, the

explosive implications of these devices for personal

privacy have become so alarming that they have

spurred a national debate over technology, privacy,

and the power of businesses—like Facebook and

Google—that hold or can access personal data

generated or stored on electronic devices. 8 The

intensity of users’ fears clearly demonstrates an

emerging societal consensus that an expectation of

privacy in these devices is “one that society is

prepared to recognize as reasonable”—indeed, as

essential. See Smith v. Maryland, 442 U.S. 735, 740

(1979).

41. As the Supreme Court has noted, “a cell

phone search would typically expose to the

government far more than the most exhaustive search

of a house”—historically the piece of property that the

Constitution has protected most. See Riley, 573 U.S.

at 397. The Supreme Court has duly recognized that

electronic devices are in a category apart for Fourth

Amendment purposes given their extraordinary

privacy implications.

8 See, e.g., Steve Shillingford, Facebook, Twitter, and Google

Have Too Much Power—We Can’t Just Legislate Ourselves Out of

This Mess, Fox News (Sept. 5, 2018), https://www.foxnews.com/

opinion/facebook-twitter-and-google-have-too-much-power-wecant-just-legislate-ourselves-out-of-this-mess; John Herrman,

Have the Tech Giants Grown Too Powerful? That’s an Easy One,

N.Y. Times (July 11, 2018), https://www.nytimes.com/2018/07/

11/magazine/facebook-google-uber-tech-giants-power.html.

Appendix 96a

42. Electronic devices not only hold our deepest

secrets; they are practically extensions of our bodies,

traveling with us everywhere we go. Many people

would not be able to retain a job, receive help in an

emergency, or maintain their personal relationships

without the help of a cell phone, laptop, tablet, or in

many cases all three. Many workers use their

electronic devices daily to receive and respond to

sensitive and pressing business communications. For

most people, it is not an option to leave their electronic

devices at home, including when they travel.

43. Every day, many of the 95% of Americans

who own a cell phone enter and leave the United

States, as do many thousands of foreign nationals. In

2017, CBP processed an average of over 1.1 million

people per day coming into and leaving the United

States by land, air, and sea. 9 Approximately half of

these people are U.S. citizens.

44. Extrapolating from these figures, we can

conservatively estimate that in a 24-hour period,

approximately 885,000 cell phones enter or leave the

United States at a port of entry. 522,500 of these cell

phones belong to U.S. citizens. 10

45. These travelers also carry thousands of other

electronic devices across the border daily.

46. In great part due to the extraordinary

capabilities of these devices, the Supreme Court

9 On a Typical Day in Fiscal Year 2018, CBP…, U.S. Customs

and Border Protection (March 7, 2019), https://www.cbp.gov/

newsroom/stats/typical-day-fy2018.

10 This estimate is conservative because people who travel

internationally may be more likely than the general population

to own a cell phone.

Appendix 97a

affords far greater protection to cell phones and other

electronic devices than to other objects subject to

search, as explained in detail below. CBP and ICE

nevertheless subject these most sensitive implements

to extensive warrantless and suspicionless searches.

CBP and ICE Policies

47. On August 18, 2009, ICE issued an

extraordinarily broad policy functionally permitting

its border agents to conduct searches of all “electronic

devices” in the possession of travelers into and out of

the United States. See ICE Directive 7-6.1 (Aug. 18,

2009).

48. Two days later, on August 20, 2009, CBP

issued a nearly identical directive. See CBP Directive

No. 3340-049 (Aug. 20, 2009).

49. The majority of agents at ports of entry work

for CBP, while ICE agents provide supplemental help

in some cases.

50. The 2009 policies permitted CBP and ICE

agents conducting border searches, “without

individualized suspicion,” to “examine electronic

devices”; to “review and analyze the information”

encountered during the course of the search; and to

retain devices and data indefinitely. CBP Directive

No. 3340-049, §§ 5.1.2, 5.3.1.

51. Under the agencies’ 2009 policies, agents may

confiscate devices from travelers for a “thorough”

search,

either

on-site

off-site,

without

individualized suspicion. See id. § 5.3.1; ICE Directive

7-6.1, §§ 6.1, 8.1.4. While CBP confiscations

presumptively last no more than five days, CBP

supervisors may extend this period based on

undefined

“extenuating

circumstances.”

CBP

Appendix 98a

Directive No. 3340-049, §§ 5.3.1, 5.3.1.1. Confiscations

by ICE can last up to 30 days without supervisor

approval, and can be extended under “circumstances .

. . that warrant more time.” ICE Directive 7-6.1,

§ 8.3.1.

52. The 2009 policies instruct the agencies to

delete data only “if, after reviewing information . . .

there is not probable cause to seize it.” CBP Directive

No. 3340-049, § 5.3.1.2. As a result, agents may

permanently detain an electronic device and its data

without a warrant. And the probable cause necessary

to permanently detain devices or information can be

generated through the initial searches and seizures

performed without any individualized suspicion.

53. On January 4, 2018, CBP issued a directive

superseding its 2009 directive. See CBP Directive No.

3340-049A (Jan. 4, 2018) (the “2018 Policy”).

54. While CBP’s 2018 Policy supersedes its 2009

Policy, ICE has not issued a comparable new policy.

Under ICE’s 2009 Directive, ICE agents are currently

authorized to search electronic devices and to review,

analyze, and copy their contents without any

individualized suspicion.

55. CBP’s 2018 Policy covers “[a]ny 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.” § 3.2.

56. The 2018 Policy opens up this entire category

to two types of searches—“basic” and “advanced”—

neither of which must be supported by a

particularized warrant or even by probable cause.

§§ 5.1.3, 5.1.4.

Appendix 99a

57. A “basic search” is by no means “basic”; it is

highly intrusive and allows officers to access all

content and communications stored on the device. An

agent conducting a basic search “may examine an

electronic device and may review and analyze

information encountered at the border.” § 5.1.3. The

2018 Policy authorizes an agent to perform a “basic

search” without any individualized suspicion. Id.

58. An “advanced search” allows for the

connection of “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.” § 5.1.4. The 2018 Policy

authorizes an agent to perform an “advanced search”

if he has either “reasonable suspicion of activity in

violation of the laws enforced or administered by

CBP” or where “there is a national security

concern.”§ 5.1.4.

59. The 2018 Policy makes no effort to cabin its

vague and capacious terms “reasonable suspicion” or

“national security concern.” The Policy explains that

“[m]any factors may create reasonable suspicion or

constitute a national security concern; examples

include the existence of a relevant national-securityrelated lookout in combination with other articulable

factors as appropriate, or the presence of an

individual

government-operated

and

government-vetted terrorist watch list.” § 5.1.4.

60. Moreover, the 2018 Policy does not require

that “reasonable suspicion” be in any way related to

the electronic device or its data. Rather, the 2018

Policy authorizes agents to review, copy, and analyze

the content of an electronic device based only on

suspicion that the owner of the device is violating

Appendix 100a

CBP-administered laws, regardless of whether the

agents reasonably suspect that the device or its data

contain evidence of such a violation.

61. The 2018 Policy adds insult to injury by

demanding that individuals facilitate these unlawful

searches and seizures. Individuals must “present

electronic devices and the information contained

therein in a condition that allows inspection.” This

means that officers may require individuals to unlock

or decrypt their devices or information and can

“request[] and retain” “[p]asscodes or other means of

access . . . as needed to facilitate the examination of

an electronic device or [its] information.” § 5.3.1.

62. While the 2018 Policy recommends that

agents obtain supervisor approval before conducting a

search, officers need only obtain such approval if it is

“practicable.” § 5.1.5. Similarly, while the 2018 Policy

advises that “[s]earches of electronic devices should be

conducted in the presence of the individual whose

information is being examined,” it permits agents to

search devices outside their owners’ presence if there

are “national security, law enforcement, officer safety,

or other operational considerations that make [owner

presence] inappropriate.” § 5.1.6.

63. Perhaps the most extraordinary part of the

2018 Policy relates to the detention of electronic

devices and copying of their information. The policy

gives officers power, absent any individualized

suspicion, to detain electronic devices and information

copied from them “for a brief, reasonable period of

time to perform a thorough border search.” This

period “ordinarily should not exceed five (5) days” but

can be extended for undefined “extenuating

circumstances.” § 5.4.1. Detention can continue even

Appendix 101a

after the individual has departed from the port of

entry. § 5.4.1.1.

64. The 2018 Policy provides that electronic

devices will be returned and data will be deleted only

“if, after reviewing information, there exists no

probable cause to seize the device or information.”

§ 5.4.1.2. As a result, agents may permanently detain

an electronic device and its data without a warrant.

And the probable cause necessary to permanently

detain devices or information can be generated

through the initial searches and seizures performed

without any individualized suspicion, absent any

review from a neutral magistrate.

65. Agents are authorized to retain “information

relating to immigration, customs, and other

enforcement matters if such retention is consistent

with the applicable system of record notice,” even

absent any individualized suspicion. § 5.5.1.2.

66. Without individualized suspicion, the officer

is authorized to transfer electronic devices and

information thereon to other government agencies for

a variety of purposes.

67. For

example,

without

individualized

suspicion, “[o]fficers may convey electronic devices or

copies of information contained therein to seek

technical assistance” so as to allow access to the device

or its information. § 5.4.2.1. Officers may also convey

devices or information to “subject matter experts” in

other federal agencies “when there is a national

security concern or . . . reasonable suspicion.” § 5.4.2.2.

68. Individuals need not be notified when their

devices or information are transmitted to other

agencies. § 5.4.2.5.

Appendix 102a

69. The 2018 Policy also provides inadequate

guidance on how officers should handle privileged and

sensitive material. It contemplates that officers may

“encounter[] information they identify as, or that is

asserted to be, protected by attorney-client privilege

or attorney work product doctrine.” § 5.2.1. But the

Policy provides no meaningful direction on how

officers should handle that information. Rather, the

Policy vaguely instructs officers to “ensure the

segregation of any privileged material” so that it is

“handled appropriately while also ensuring that CBP

accomplishes its critical border security mission.”

§ 5.2.1.2.

70. The 2018 Policy’s guidance on “[o]ther

possibly sensitive information” is even vaguer.

“[M]edical records and work-related information

carried by journalists . . . shall be handled in

accordance with any applicable federal law and CBP

policy.” § 5.2.2. Business or commercial information

shall be “protect[ed] from unauthorized disclosure.”

§ 5.2.3.

71. The 2018 Policy contemplates that privileged

or sensitive information may be shared with other

federal agencies so long as those agencies “have

mechanisms in place to protect appropriately such

information.” § 5.2.4.

72. The 2018 CBP Policy and 2009 ICE Policy

essentially make the 885,000 cell phones that transit

into and out of the United States every single day fair

game for a warrantless and suspicionless search and

seizure, alongside untold numbers of other devices

containing sensitive information, like laptops.

73. These agency policies also promise to cause

extraordinary inconvenience to travelers by

Appendix 103a

authorizing detention of an electronic device for

multiple days. For the many international travelers

who do not intend to remain near their port of entry

following admission to the United States, the policies

constitute an extraordinary burden. And the burden

is even greater for travelers whose electronics are

detained as they are leaving the United States. These

travelers are given a choice of evils: abandoning their

devices, with all of their personal information, to ICE

and CBP; or losing up to thousands of dollars and

many days of their time in order to reschedule their

travel until their electronics clear inspection. Even

burdening a million travelers a day with the

possibility that they will be forced to endure these

inconveniences to permit a warrantless and

suspicionless search is an extraordinary intrusion on

the liberty of citizens and visitors alike.

The Law of Electronic-Device Searches

74. CBP and ICE’s electronic search policies are

not only breathtakingly broad. They fly directly in the

face of Supreme Court jurisprudence on protection for

cell phones and other electronic devices and digital

records and communications.

75. In Riley v. California, 573 U.S. 373 (2014),

the Supreme Court recognized that the extraordinary

powers and capabilities of cell phones place them in a

class apart from other objects, requiring particularly

robust Fourth Amendment protection. The Riley court

unanimously held that law enforcement must not

search digital information on a cell phone without

first obtaining a warrant, except in a very narrow set

of exigent circumstances.

Appendix 104a

76. Tellingly, all of the Justices based this

holding on the unique characteristics of cell phones.

Cell phones, the Court noted, 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.” Id. at

385. Applying a traditional balancing assessment for

warrant requirements, the Court concluded that the

intrusion on privacy interests in a warrantless cell

phone search far outweighs the government interest

supporting it. Id. at 385-86. The Court noted that the

only legitimate interest in a warrantless search—

avoiding the remote deletion of evidence—was a

relatively unlikely and weak one in most cases. Id. at

388-90. On the other hand, the Court recognized that

allowing warrantless cell phone searches implicated

stark and troubling privacy concerns. Noting the

“immense storage capacity” of cell phones, the Court

enumerated four distinct ways that cell phones,

among all objects law enforcement might search, have

unique privacy implications: they collect “many

distinct types of information . . . that reveal much

more in combi-nation than any isolated record”; they

collect more of each individual type of information

than previously possible; they collect this information

over massive amounts of time, months or even years;

and they are so pervasive in society that they function

as a “digital record of nearly every aspect” of most

Americans’ lives, including their most personal

information. Id. at 393-95. Taking these unique

capacities together, the Supreme Court held that the

balance of equities clearly favored requiring a

warrant.

Appendix 105a

77. Similarly, courts have again and again found

that people have a reasonable expectation of privacy

in their computers and in folders and documents on

their computers. See United States v. Zavala, 541 F.3d

562, 577 (5th Cir. 2008) (finding reasonable

expectation of privacy in the contents of a person’s cell

phone and noting that “a cell phone is similar to a

personal computer that is carried on one’s person”);

see also, e.g., United States v. Heckenkamp, 482 F.3d

1142, 1146 (9th Cir. 2007); United States v. Buckner,

473 F.3d 551, 554 n.2 (4th Cir. 2007).

78. And, expectations of privacy aside, the

Supreme Court has zealously guarded against

“government trespass upon the areas (‘persons,

houses, papers, and effects’)” that the Fourth

Amendment enumerates. United States v. Jones, 565

U.S. 400, 406-07 (2012); see also United States v.

Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016)

(Gorsuch, J.).

79. Even some of the individual functions of cell

phones and smartphones receive heightened

constitutional protection. The Supreme Court

recently held that law enforcement must secure a

warrant to view data generated by the locationtracking functions of phones and other electronic

devices. Carpenter, 138 S. Ct. at 2232-33. Several

circuits have held that law enforcement officials may

not access an individual’s emails without a warrant;

email is an essential function of virtually every

smartphone. See, e.g., United States v. Warshak, 631

F.3d 266, 288-89 (6th Cir. 2010). In other words,

courts have overwhelmingly found that searches of

phones, laptops, similar devices, and even some of

their component functions require a warrant.

Appendix 106a

80. Nor are the courts particularly burdening law

enforcement by requiring warrants. If technology has

opened up vast troves of sensitive information to

inspection by government agencies, it has also made

it exceptionally easy for these agencies to secure a

warrant with minimal effort and delay. As the

Supreme Court noted in Riley, in one jurisdiction,

“police officers can e-mail warrant requests’ to judges’

iPads [and] judges have signed such warrants and

emailed them back to officers in less than 15 minutes.”

573 U.S. at 401. Such a practice is not rare: the

Supreme Court has previously noted that the Federal

Rules of Criminal Procedure have permitted

telephonic warrants since 1977. Missouri v. McNeely,

569 U.S. 141, 154 (2013). Law enforcement officials

can secure a warrant quickly by a variety of means,

including “telephonic or radio communication,

electronic communication such as e-mail, and video

conferencing.” Id. The hurdle of securing a warrant is

not high.

FACTUAL ALLEGATIONS

Mr. Anibowei Begins Receiving Intense

Scrutiny at the Airport, and Is Removed

Without Notice from CBP’s Global Entry

Trusted Traveler Program

81. Plaintiff George Anibowei was born in Port

Harcourt, Rivers State, Nigeria and is originally from

Agbere, Bayelsa State, in the Niger Delta region of

Nigeria. Mr. Anibowei fled Nigeria in 1997 after his

work as a pro-democracy activist put him in danger of

retaliation by Nigeria’s military dictatorship, then led

by General Sani Abacha.

Appendix 107a

82. Seeking a life with more freedoms and civil

liberties, Mr. Anibowei applied for and received

asylum in the United States in 1998. He became a

naturalized U.S. citiz

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