American Civil Liberties Union of Northern California v. Transportation Security Administration (TSA)

Filing 1

COMPLAINT for DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400, receipt number 0971-12178000.). Filed byAmerican Civil Liberties Union of Northern California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Civil Cover Sheet)(Talla, Vasudha) (Filed on 3/12/2018)

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AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA,
LINDA LYE - #215584
[e-mail]
VASUDHA TALLA - #316219
[e-mail]
39 Drumm Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA,

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Plaintiff,

Case No.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

v.
TRANSPORTATION SECURITY
ADMINISTRATION,
Defendant.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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INTRODUCTION
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This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552,

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to enforce the public’s right to information about the federal government’s searches of electronic

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devices at airports. Government agencies routinely search travelers’ phones, computers, tablets

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and other devices, which hold within them vast quantities of information—photographs, emails,

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text and audio messages, address books—that reveal intimate and deeply personal details of an

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individual’s life.

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The federal government’s searches of electronic devices at airports—along with

intrusive questioning, lengthy detentions, and even refusal to allow certain travelers to enter the

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country—has generated widespread media interest and public concern. Recent statistics

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demonstrate that the number of these searches have multiplied year after year. Access to

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information about electronic device searches at airports is necessary to inform meaningful public

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debate over the scope of government conduct that potentially threatens core civil rights and

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liberties protected by the Constitution. Federal agencies have published their policies regarding

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searches of electronic devices at international borders. But the federal government’s policies on

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searching electronic devices of domestic air passengers remains shrouded in secrecy.
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Over two months ago, on December 20, 2017, Plaintiff American Civil Liberties

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Union of Northern California (“ACLU-NC”), a non-profit civil rights organization, submitted

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two FOIA requests to Defendant Transportation Security Administration (“TSA”) seeking

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records about policies, procedures, and protocols regarding the search of airplane passengers’

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electronic devices; training of relevant personnel related to the search or examination of

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electronic devices; and equipment used to search, examine, or extract data from electronic

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devices.

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Since that time, TSA has provided ACLU-NC with no records.

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ACLU-NC now brings this action to obtain the information to which it is

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statutorily entitled.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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PARTIES
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Plaintiff American Civil Liberties Union of Northern California is an affiliate of

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the American Civil Liberties Union, a national, non-profit, non-partisan organization with the

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mission of protecting civil liberties from government incursions, safeguarding basic

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constitutional rights, and advocating for open government. ACLU-NC is established under the

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laws of the state of California and is headquartered in San Francisco, California. ACLU-NC has

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over 90,000 members. In support of its mission, ACLU-NC uses its communications department

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to disseminate to the public information relating to its mission, through its website, newsletters,

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in-depth reports, and other publications.

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Defendant Transportation Security Administration is an agency within the

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meaning of 5 U.S.C. §552(f). The agency has its headquarters in Arlington, Virginia, and field

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offices all over the country, including San Francisco, California.
JURISDICTION

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This Court has subject matter jurisdiction and personal jurisdiction over the

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parties pursuant to 5 U.S.C. §§552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has subject

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matter jurisdiction over this action pursuant to 28 U.S.C. §§1331 and 1346.

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VENUE AND INTRADISTRICT ASSIGNMENT

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Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§§1391(e) and 1402. Plaintiff has its principal place of business in this district.
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Pursuant to Local Rule 3-2(c) and (d), assignment to the San Francisco division is

proper because Plaintiff is headquartered in San Francisco.
FACTUAL ALLEGATIONS
The Federal Government’s Searches of Electronic Devices at Airports and Borders
Are a Matter of Significant Public Interest
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Mobile phones, computers, tablets, digital cameras—these electronic devices and

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others possess the most intimate details of an individual’s life. They are also ubiquitous, carried

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by millions of passengers who travel in and out of airports in the United States each day. With

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these devices, passengers take with them photographs of themselves, their families, and their

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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friends; text and audio messages with an array of colleagues and loved ones; emails and

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archives; social media messages and networks; confidential business and legal information;

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protected medical records; bank statements; and a wealth of other information that lay bare how

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and with whom people communicate, work, and live each day.
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The Supreme Court has recognized the significant privacy interests an individual

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possesses in electronic devices. In a 2014 opinion addressing searches of cell phones, the Court

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noted that cell phones are “such a pervasive and insistent part of daily life that the proverbial

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visitor from Mars might conclude they were an important feature of human anatomy.” Riley v.

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California, 134 S. Ct. 2473, 2484 (2014). The data contained in cell phones reaches far back in

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time, “place[s] vast quantities of personal information literally in the hands of individuals,” and

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collects several pieces of information that “reveal much more in combination than any isolated

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record.” Id. at 2485, 2489. Cell phones are unique not only for containing certain types of data

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with no physical analogue—such as internet search and browsing history, location data, and

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apps—but also for serving as a portal to data stored on remote or “cloud” servers. Id. at 2489,

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2491. In light of the privacy concerns posed by searches of cell phones, the Court declined to

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allow warrantless searches by police incident to an individual’s arrest.
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Federal agencies, such as Defendant TSA, U.S. Customs and Border Protection

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(“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”), regularly search passengers’

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electronic devices at airports. Each year, the number of searches by CBP has grown: from 5,000

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searches in Fiscal Year (FY) 2015, to 25,000 searches in FY 2016, to 30,000 searches in FY

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2017.

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CBP and ICE have published policies regarding their authority to search and seize

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electronic devices at the border, including airports. CBP requires passengers to provide their

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devices unlocked or the password or PIN so that an officer can view data contained on the

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device. See U.S. Customs and Border Protection, CBP Directive No. 3340-049A, Border Search

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of Electronic Devices, Jan. 4, 2018, http://bit.ly/2rjmnYj. CBP policy authorizes both a “basic

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search” and an “advanced search” of passengers’ devices. In the former, an officer examines

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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only information that is resident upon the device, using external equipment only to gain access to

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the device if necessary. In the latter, external equipment is used not merely to gain access to the

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device, but to review, copy, and/or analyze its contents.

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Media accounts highlight the privacy concerns posed by electronic device

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searches, seizures, and copying of data: a NASA scientist potentially carrying sensitive

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information on his phone, Loren Grush, “A US-Born NASA Scientist Was Detained at the

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Border Until He Unlocked His Phone,” Feb. 12, 2017, The Verge, http://bit.ly/2ooHzr3; a

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Canadian photojournalist denied entry to the United States to cover protests when he failed to

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provide access to his phones, Daniel Victor, “Canadian Journalists Detention at U.S. Border

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Raises Press Freedom Alarms,” N.Y. Times, Dec. 2, 2016, http://nyti.ms/2EN1A5q; a U.S.

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journalist working for the Wall Street Journal who objected to turning over her cell phones, id.; a

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Muslim-American woman returning from visiting her refugee family overseas, whose phone was

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searched, Lubana Adi, “My phone was searched at LAX, which apparently is the new normal,”

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Los Angeles Times, April 7, 2017, http://lat.ms/2opysbm; a U.S. citizen asked to unlock his cell

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phones before he could board a flight from Los Angeles to Saudi Arabia, Daniel Victor, “What

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Are Your Rights if Border Agents Want to Search Your Phone?,” N.Y. Times, Feb. 14, 2017,

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http://nyti.ms/2lj2AE9.

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These troubling incidents have produced intense public interest in searches of

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electronic devices at airports by federal agencies, including individual rights in response to such

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searches. Plaintiff ACLU-NC and other organizations, along with media outlets, have published

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guidance for citizens and immigrants as they travel domestically and internationally and

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encounter requests from TSA, CBP or ICE to search their devices. See ACLU of Northern

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California, “Know the Facts and Know Your Rights for Arab, Middle Eastern, Muslim, and

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South Asian Communities,” May 2017, http://bit.ly/2CDeOMb; Electronic Frontier Foundation,

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“Digital Privacy at the U.S. Border: Protecting the Data on Your Devices, Dec. 2017,

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http://bit.ly/2CAwdFu; Patrick J. Lee, “Can Customs and Border Enforcement Search Your

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Phone? These Are Your Rights,” ProPublica.org, Mar. 13, 2017, http://bit.ly/2nJ2Slh; Daniel

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Victor, “What Are Your Rights if Border Agents Want to Search Your Phone?,” N.Y. Times,

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Feb. 14, 2017, http://nyti.ms/2lj2AE9.
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CBP claims the authority to conduct warrantless searches of electronic devices at

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international border crossings without probable cause to support the search. That practice is

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being challenged by the national ACLU, of which Plaintiff ACLU-NC is an affiliate, as violating

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the First and Fourth Amendments to the Constitution. See Alasaad v. Duke, No. 1:17-cv-11730-

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DJC (D. Mass. filed Sep. 13, 2017).
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Alongside CBP, TSA has also been reported as heightening its screening

procedures of domestic passengers’ electronic devices. See, e.g., Russ Thomas, “TSA

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implements new screening procedures in Montana,” KPAX.com, Dec. 14, 2017,

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http://bit.ly/2sMepaI; Joel Hruska, “TSA Will Now Screen All Electronics ‘Larger Than a Cell

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Phone,’” Extreme Tech, July 26, 2017, http://bit.ly/2sG2Fq4.
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TSA has not made publicly available any policies or procedures governing

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searches of electronic devices, especially those held by passengers engaged in purely domestic

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air travel. As such, the public is unaware of the legal basis for TSA’s searches of electronic

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devices of passengers not presenting themselves at the border and flying on a domestic flight.

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Further, the public is unaware of TSA’s policies and procedures for advanced or forensic

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searches, in which external equipment is used to search, examine, or extract data from

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passengers’ electronic devices and SIM cards. And the public has no knowledge of TSA’s

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policies and procedures relating to seizure of electronic devices, retention or destruction of data

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resident on those devices, or use of the device to access data held on a “cloud” or elsewhere.
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The information sought in ACLU-NC’s FOIA request would reveal for the first

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time information concerning TSA’s searches of domestic passengers’ electronic devices, and

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allow members of the public a meaningful opportunity to vet the government’s broad claim of

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authority to conduct such searches.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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Plaintiff Submitted a FOIA Request to TSA Headquarters But TSA Has Failed to Produce
Any Records

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On December 20, 2017, ACLU-NC submitted a FOIA request to the TSA

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headquarters (“TSA Headquarters”) in Arlington, Virginia seeking information about its searches

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of passengers’ electronic devices (the “TSA Headquarters Request”). A copy of Plaintiff ACLU-

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NC’s TSA Headquarters Request request is appended hereto as Exhibit 1.
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In particular, the TSA Headquarters Request seeks records, from January 1, 2012

to the present, regarding any of the following:

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1. Policies, procedures, or protocols regarding the search of passengers’ electronic
devices. This includes but is not limited to any policies, procedures, or protocols
related to the “enhanced screening of electronic devices” referenced by thenSecretary of Homeland Security John Kelly in June 2017.1
2. Equipment, including but not limited to SIM-card readers and software manufactured
by Cellebrite 2, used to search, examine, or extract data from passengers’ electronic
devices and SIM cards at all airports in California. This request seeks records
including but not limited to: documentation related to the acquisition, testing, use,
maintenance, and location of such equipment; any inventories of the number of each
type of equipment.3 This request includes any records in the possession of TSA but
generated by third-party service providers.
3. Training of transportation security officers or contractors retained to provide security
screening services, related to the search or examination of passengers’ electronic
devices.

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Headquarters Request.
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More than 20 working days have passed since TSA received the TSA

As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not

received any response from TSA to the TSA Headquarters Request.

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https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference
Examples of such devices include, but are not limited to, a Universal Forensic Extraction
Device (UFED) manufactured by Cellebrite. E.g.,
https://www.cellebrite.com/en/press/cellebrite-introduces-ufed-touch2-platform/.
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According to the Government Accountability Office, TSA possesses ““acquisition
documentation for passenger and baggage screening technologies,” including memorandums and
“information regarding the number of each technology deployed in airports nationwide.”
http://www.gao.gov/assets/680/674297.pdf at 28.
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not

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received a determination from TSA of whether TSA will comply with the TSA Headquarters

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Request.
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As of the date of the filing of this Complaint, Plaintiff ACLU-NC has not

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received any documents from TSA that are responsive to the TSA Headquarters Request or any

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correspondence indicating when TSA might provide any documents.

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Plaintiff ACLU-NC has exhausted all applicable administrative remedies.

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TSA has wrongfully withheld the requested records from Plaintiff ACLU-NC.

Plaintiff Submitted a FOIA Request to TSA’s San Francisco Field Office But TSA Has
Failed to Produce Any Records

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On December 20, 2017, Plaintiff ACLU-NC submitted a FOIA request to the

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TSA field office in San Francisco, California (the “TSA Field Office”) seeking information

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about its searches of passengers’ electronic devices (the “TSA Field Office Request”). A copy of

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Plaintiff ACLU-NC’s TSA Field Office Request is appended hereto as Exhibit 2.
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In particular, the TSA Field Office Request seeks records, from January 1, 2012

to the present, regarding any of the following:

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1. Policies, procedures, or protocols regarding the search of passengers’ electronic
devices. This includes but is not limited to any policies, procedures, or protocols
related to the “enhanced screening of electronic devices” referenced by thenSecretary of Homeland Security John Kelly in June 2017.4
2. Equipment, including but not limited to SIM-card readers and software manufactured
by Cellebrite5, used to search, examine, or extract data from passengers’ electronic
devices and SIM cards at the San Francisco International Airport. This request seeks
records including but not limited to: documentation related to the acquisition, testing,
use, maintenance, and location of such equipment; any inventories of the number of
each type of equipment.6 This request includes any records in the possession of the
TSA San Francisco Field Office but generated by Covenant Aviation Security.

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https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference.
Examples of such devices include, but are not limited to, the UFED Touch Platform
manufactured by Cellebrite: https://www.cellebrite.com/en/press/cellebrite-introduces-ufedtouch2-platform/.
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According to the Government Accountability Office, TSA possesses ““acquisition
documentation for passenger and baggage screening technologies,” including memorandums and
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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3. Logs referencing the use or maintenance of any equipment used to search, examine,
or extract data from passengers’ electronic devices at the San Francisco International
Airport.
4. All communications between SFO and TSA referencing the replacement,
supplementation, or relocation of any piece of Transportation Security Equipment
(“TSE”) at SFO.7
5. Training of transportation security officers or contractors retained to provide security
screening services, related to the search or examination of passengers’ electronic
devices.

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By letter dated January 4, 2018, TSA acknowledged receipt of the TSA Field

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Office Request, assigned it an “unperfected case number,” and requested additional information

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about Plaintiff’s request. TSA also determined that the TSA Field Office Request met the

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“unusual circumstances” criteria of FOIA, and stated that it would not be able to complete the

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processing of the request within 30 working days (20 working days plus 10 additional working

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days). A copy of this letter is appended hereto as Exhibit 3.

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By letter dated January 19, 2018, Plaintiff responded to TSA’s request for further

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information on the following items contained in the TSA Field Office Request. A copy of this

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letter is appended hereto as Exhibit 4.

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Item 2: This request seeks all records in the possession of the TSA San Francisco Field
Office, regardless of the author of the document, related to (1) the acquisition, testing,
use, maintenance, and location of equipment used to search, examine, or extract data
from passengers’ electronic devices and SIM cards and (2) any inventories of the number
of each type of such equipment.
Item 3: This request seeks all use or maintenance logs related to the search, examination,
or extraction of data from passengers’ electronic devices. Any applicable exemption
from disclosure under FOIA does not alleviate the agency of its duty to search for
responsive records. Rather, the proper procedure is to search for and identify the records,
and then to assert an applicable FOIA exemption.
Item 4: This request seeks all communications between SFO and TSA about TSE with a
nexus to the search of, examination of, or extraction of data from passengers’ electronic
devices at SFO.

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“information regarding the number of each technology deployed in airports nationwide.”
http://www.gao.gov/assets/680/674297.pdf at 28.
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According to a TSA 2015 report to Congress, “If TSA has identified the need to replace,
supplement, or relocate a piece of TSE,” TSA “informs the airport of the decision through a
memo and follow-on communication as needed.”
https://www.fbo.gov/utils/view?id=62bf59d0ee09e6681071db6c5b15d803 at 17. This request
seeks any such memos, as well as follow-up communications.
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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By letter dated January 25, 2018, TSA notified Plaintiff of a “perfected case

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number” for the TSA Field Office Request and stated that no additional information was needed

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at that time. A copy of this letter is appended hereto as Exhibit 5.

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More than 30 working days have passed since TSA received the TSA Field Office

Request.
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More than 30 working days have passed since TSA notified Plaintiff on January

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25, 2018 of a “perfected case number” and that no further information was needed from Plaintiff

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at that time.

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36.

As of the date of the filing of this Complaint, Plaintiff has not received a

determination from TSA of whether TSA will comply with the TSA Field Office Request.
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As of the date of the filing of this Complaint, Plaintiff has not received any

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documents from TSA that are responsive to the TSA Field Office Request or any correspondence

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indicating when TSA might provide any documents.

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Plaintiff has exhausted all applicable administrative remedies.

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TSA has wrongfully withheld the requested records from Plaintiff.
FIRST CLAIM FOR RELIEF
Violation of Freedom of Information Act For
Wrongful Withholding Of Agency Records

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Plaintiff incorporates the above paragraphs as if fully set forth herein.

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Defendant TSA has wrongfully withheld agency records requested by Plaintiff

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under FOIA and has failed to comply with the statutory time for the processing of FOIA

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requests.

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Plaintiff has exhausted the applicable administrative remedies with respect to

TSA’s wrongful withholding of the requested records.
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Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

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the requested documents because Defendant TSA continues to improperly withhold agency

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records in violation of FOIA. Plaintiff will suffer irreparable injury from, and have no adequate

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legal remedy for, TSA’s illegal withholding of government documents pertaining to the subject

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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of Plaintiff’s FOIA request.
PRAYER FOR RELIEF

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WHEREFORE, Plaintiff prays that this Court:

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A.

Order Defendant TSA to promptly process and release all responsive records;

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B.

Declare that Defendant TSA’s failure to disclose the records requested by

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Plaintiff is unlawful;
C.

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Award Plaintiff its litigation costs and reasonable attorney’s fees incurred in this

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Grant such other relief as the Court may deem just and proper.

action;

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Dated: March 12, 2018

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA

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By:

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/s/ Vasudha Talla
Vasudha Talla
Linda Lye

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Attorneys for Plaintiffs
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CASE NO.__________________

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