On Mar. 27, 2017, the Knight First Amendment Institute at Columbia University filed this lawsuit in the U.S. District Court for the District of Columbia. Plaintiff sued the Department of Homeland Security (DHS) and its component Immigration and Customs Enforcement (ICE). Represented by its own staff and the law firm Jenner & Block, plaintiff alleged that defendants had violated the Freedom of Information Act (FOIA), and requested injunctive relief.

According to the complaint, plaintiff is a nonprofit working to safeguard freedoms of speech and of the press. Plaintiff alleged that DHS's component U.S. Customs and Border Protection (CBP) has since 2009 been authorized to conduct searches of individuals' electronic devices at the US borders, without individualized suspicion, and to detain indefinitely these devices. CBP has searched and seized thousands of devices, including those belonging to US citizens. Furthermore, plaintiff alleged, the number of such searches and seizures has risen sharply since 2015 and has especially increased since the beginning of 2017 under the new Presidential administration.

The complaint explained that plaintiff was especially concerned with the effect of these searches and seizures on press freedom, because CBP has accessed sensitive information on journalists' devices. Furthermore, plaintiff was concerned that CBP was targeting Muslims for such searches. Overall, because of the general scope and effects of these searches, plaintiff believed that CBP's activity may violate the First and Fourth Amendments, and sought more information to disseminate to the public.

To learn more about CBP's activity, plaintiff filed FOIA requests with DHS, CBP, and ICE, for records detailing the government's searches since 2012. Plaintiff made these requests on Mar. 15, 2017 and requested expedited processing. Plaintiff argued the topic was of urgent public interest, given the increase in border searches since early 2017, and reports of some CBP officers coercing travelers into surrendering their devices. As of the filing of the Mar. 27 complaint, none of the agencies had communicated any decision on the FOIA requests, thus failing to meet their 10-day statutory deadline to do so. Because no administrative remedies exist, plaintiff brought this injunctive lawsuit.

On Mar. 28, 2017, the case was assigned to Judge Tanya S. Chutkan.

Plaintiff filed an amended complaint on Apr. 19 with an update on its allegations and with the addition of CBP as another defendant. Although ICE had since granted plaintiff's expedited FOIA request, it had failed to produce any records. DHS had denied the expedited processing request with minimal explanation, and CBP had failed to respond. Defendants filed an answer on May 3.

The parties submitted joint status reports on June 6, Aug. 14, and Oct. 16. Subsequent reports are due every 45 days after that.

The Oct. 16 status report specified that the parties agreed that DHS' Office of Inspector General (OIG) had finished its search, and that CBP would conduct a preliminary responsiveness review by Oct. 31 and would start releasing non-exempt responsive records in mid-November. However, the parties disagreed on DHS's duty to determine the number of responsive records and to conduct a separate search for certain items, as well as how many items it could review per month. The parties also disagreed on the scope of certain ICE and CBP duties. The status report stated that, if the parties could not reach a resolution on disputed issues, plaintiff planned to move for summary judgment.

The Nov. 30 status report specified that DHS would release all potentially-responsive and non-exempt records by approximately Dec. 1, and that CBP had released a first round and would release the next round by Dec. 22. The scope of ICE and CBP's obligations, as well as the general timeline for release, remained unresolved. Plaintiff requested a Court conference but defendants argued the parties could work out a production schedule themselves.

The Jan. 16 status report stated that ICE would begin production in January and hoped to complete production by April. CBP and plaintiff were determining how many of the incident-level reports dealing with border searches CBP would process. As for DHS's search, the parties were discussing search terms and timeline. Plaintiff asked the Court for a status conference, whereas defendant asked to continue to file status reports.

A joint status report filed on May 21, 2018 indicated that the government had processed and produced some records, and that the parties were in discussions about the scope of various requested searches. A status report filed in October indicated that production was underway and anticipated to be completed by March 2019.

On July 17, 2018, Judge Chutkan ordered the parties to submit a joint report every 60 days as they negotiated the terms and timing of the plaintiffs’ FOIA request. Between June 2017 and November 2019, the parties submitted a total of fifteen joint status reports detailing the terms of the information release. On January 21, 2019, a motion to stay proceedings due to the lapse of appropriations was submitted by the defendants, which was granted the following day.

Between December 2017 and May 2019, the defendants released 2,647 pages of responsive records to the plaintiffs. However, the plaintiffs claimed that many records were extensively redacted under the FOIA exemption, and thousands of pages were improperly withheld by the defendants. On December 2, 2019, the parties were ordered to submit cross-motions for summary judgment on the issue.

On January 31, 2020, the defendants filed a motion for summary judgment. They argued that the redacted information fell under the FOIA exemptions 5,6, 7(C) and (E), under 5 U.S.C. §§ 552. The plaintiffs submitted a cross-motion for summary judgment and a memorandum in opposition on March 2, claiming that the defendants had failed to provide adequate justification for withholding the documents under the FOIA exceptions and sought an order for all separable, non-exempt information to be released.

After submitting three unopposed motions for extension of time, the defendants submitted a response to the cross-motion on June 12, 2020.

The documents released by the government are available through this case page, below. This case is ongoing.

Ava Morgenstern - 03/10/2018
Virginia Weeks - 10/11/2018
Averyn Lee - 06/12/2020


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