Case: 3:18-cv-1539 As of: 05/29/2020 03:26 PM PDT 1 of 4
ADRMOP,CLOSED,CONSENT
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−01539−LB

American Civil Liberties Union of Northern California v. Transportation Security Administration (TSA) Assigned to: Magistrate Judge Laurel Beeler Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 03/12/2018 Date Terminated: 01/02/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union of Northern California

represented by Vasudha Talla ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: vtalla@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: lye.linda@gmail.com TERMINATED: 11/14/2018

V.
Defendant
Transportation Security Administration (TSA)

represented by Julie Bibb Davis United States Attorney's Office 450 Golden Gate Ave San Francisco, CA 94102 415−436−7066 Fax: 415−436−7169 Email: Julie.Davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/12/2018
03/12/2018 03/12/2018 03/12/2018

# Docket Text
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) (Entered: 03/12/2018)
2 Certificate of Interested Entities by American Civil Liberties Union of Northern California (Talla, Vasudha) (Filed on 3/12/2018) (Entered: 03/12/2018)
3 Proposed Summons. (Talla, Vasudha) (Filed on 3/12/2018) (Entered: 03/12/2018)
4 Case assigned to Magistrate Judge Laurel Beeler.

Case: 3:18-cv-1539 As of: 05/29/2020 03:26 PM PDT 2 of 4

03/13/2018 03/13/2018 03/15/2018 03/21/2018 03/27/2018
04/02/2018 04/04/2018 04/04/2018
04/04/2018 04/04/2018
05/21/2018

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 3/26/2018. (haS, COURT STAFF) (Filed on 3/12/2018) (Entered: 03/12/2018)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 6/7/2018. Initial Case Management Conference set for 6/14/2018 11:00 AM. Signed by Magistrate Judge Laurel Beeler on 3/13/18. (aaaS, COURT STAFF) (Filed on 3/13/2018) (Entered: 03/13/2018)
6 Summons Issued as to Transportation Security Administration (TSA). (aaaS, COURT STAFF) (Filed on 3/13/2018) (Entered: 03/13/2018)
7 SUMMONS Returned Executed by American Civil Liberties Union of Northern California. Transportation Security Administration (TSA) served on 3/15/2018, answer due 4/5/2018. (Talla, Vasudha) (Filed on 3/15/2018) (Entered: 03/15/2018)
8 NOTICE of Appearance by Linda Lye (Lye, Linda) (Filed on 3/21/2018) (Entered: 03/21/2018)
9 CLERK'S NOTICE Re: Consent or Declination: Plaintiffs shall file a consent or declination to proceed before a magistrate judge. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. Consent/Declination due by 4/10/2018. (ejkS, COURT STAFF) (Filed on 3/27/2018) (Entered: 03/27/2018)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by American Civil Liberties Union of Northern California.. (Talla, Vasudha) (Filed on 4/2/2018) (Entered: 04/02/2018)
11 STIPULATION WITH PROPOSED ORDER TO CONTINUE DATE TO RESPOND TO PLAINTIFF'S COMPLAINT AND TO CONTINUE CASE MANAGEMENT CONFERENCE filed by Transportation Security Administration (TSA). (Davis, Julie) (Filed on 4/4/2018) (Entered: 04/04/2018)
12 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. Consent/Declination due by 4/18/2018. (ejkS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)
13 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Transportation Security Administration (TSA).. (Davis, Julie) (Filed on 4/4/2018) (Entered: 04/04/2018)
14 ORDER granting 11 Stipulation to Continue Date to Respond to Plaintiff's Complaint and to Continue Case Management Conference. Defendant will have until 5/30/2018 to respond to Plaintiff's Complaint.
Initial Case Management Conference is reset from 6/14/2018 to 6/28/2018 at 11:00 AM in San Francisco, Courtroom C, 15th Floor. Case Management Statement due by 6/21/2018. Signed by Judge Laurel Beeler on 04/04/2018. (ejkS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/05/2018)
15 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: Based on the court's scheduling conflict, the court continues the initial CMC from 6/28/2018 to 8/9/2018 at 11:00 a.m. in San Francisco, Courtroom C, 15th Floor and directs the

Case: 3:18-cv-1539 As of: 05/29/2020 03:26 PM PDT 3 of 4

05/29/2018 05/29/2018 06/13/2018 07/09/2018 07/10/2018 07/24/2018 08/01/2018 08/01/2018 08/09/2018
11/08/2018 11/14/2018 11/14/2018 11/15/2018

filing of the initial CMC statement by 8/2/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 5/21/2018) (Entered: 05/21/2018)
16 STIPULATION WITH PROPOSED ORDER TO CONTINUE DATE TO RESPOND TO PLAINTIFF'S COMPLAINT filed by Transportation Security Administration (TSA). (Davis, Julie) (Filed on 5/29/2018) (Entered: 05/29/2018)
17 Order by Magistrate Judge Laurel Beeler granting 16 Stipulation to Continue Date to Respond to Plaintiff's Complaint and to Continue Case Management Conference. Defendant will have until 6/13/2018 to respond to Plaintiff's Complaint. (ejkS, COURT STAFF) (Filed on 5/29/2018) (Entered: 05/29/2018)
18 Defendant's ANSWER to Complaint byTransportation Security Administration (TSA). (Davis, Julie) (Filed on 6/13/2018) (Entered: 06/13/2018)
19 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Talla, Vasudha) (Filed on 7/9/2018) (Entered: 07/09/2018)
20 ADR Clerk's Notice Setting ADR Phone Conference on Monday, July 30, 2018, at 11:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 7/10/2018) (Entered: 07/10/2018)
21 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Talla, Vasudha) (Filed on 7/24/2018) (Entered: 07/24/2018)
22 ADR Remark: ADR Phone Conference held on 7/30/2018 by Howard Herman. (cmf, COURT STAFF) (Filed on 8/1/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 08/01/2018)
23 JOINT CASE MANAGEMENT STATEMENT filed by American Civil Liberties Union of Northern California. (Talla, Vasudha) (Filed on 8/1/2018) (Entered: 08/01/2018)
24 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Initial Case Management Conference held on 8/9/2018.
Initial Case Management Conference set for 11/15/2018 11:00 AM in San Francisco, Courtroom C, 15th Floor. Case Management Statement due by 11/8/2018.
Total Time in Court: 4 minutes. Not Reported.
Plaintiff's Attorney: Linda Lye. Defendant's Attorney: Julie Davis. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 8/9/2018) (Entered: 08/09/2018)
25 JOINT CASE MANAGEMENT STATEMENT filed by American Civil Liberties Union of Northern California. (Lye, Linda) (Filed on 11/8/2018) (Entered: 11/08/2018)
26 NOTICE by American Civil Liberties Union of Northern California Notice of Withdrawal of Counsel Linda Lye and [Proposed] Order Permitting Withdrawal (Talla, Vasudha) (Filed on 11/14/2018) (Entered: 11/14/2018)
27 ORDER Permitting Withdrawal. Attorney Linda Lye terminated. Signed by Magistrate Judge Laurel Beeler on 11/14/2018. (mklS, COURT STAFF) (Filed on 11/14/2018) (Entered: 11/14/2018)
28 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Initial Case Management Conference held on 11/15/2018. The parties are working towards a resolution of the case. Further Case Management Conference set for 1/24/2019 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 1/17/2019. (Total Time in Court: 6 minutes.) (Not reported.)

Case: 3:18-cv-1539 As of: 05/29/2020 03:26 PM PDT 4 of 4

12/05/2018
12/20/2018 12/21/2018 01/02/2019

Plaintiff's Attorney: Vasudha Talla. Defendant's Attorney: Julie Davis.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 11/15/2018) Modified on 11/15/2018 (mklS, COURT STAFF). (Entered: 11/15/2018)
29 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: The court resets the CMC from 1/24/2019 to 1/17/2019 to accommodate an all−day hearing in another case.
Further Case Management Conference set for 1/17/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 1/10/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)
30 NOTICE by Transportation Security Administration (TSA) OF SETTLEMENT (Davis, Julie) (Filed on 12/20/2018) (Entered: 12/20/2018)
31 ORDER Approving Joint Notice of Settlement re 30 Notice filed by Transportation Security Administration (TSA). Further Case Management Conference set for 4/25/2019 11:00 AM in San Francisco, Courtroom B, 15th Floor. Signed by Judge Laurel Beeler on December 21, 2018. (mllS, COURT STAFF) (Filed on 12/21/2018) (Entered: 12/21/2018)
32 STIPULATION of Settlement and Dismissal with Prejudice filed by American Civil Liberties Union of Northern California. (Talla, Vasudha) (Filed on 1/2/2019) (Entered: 01/02/2019)

 Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 1 of 11

1 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA,
2 LINDA LYE - #215584 llye@aclunc.org
3 VASUDHA TALLA - #316219 vtalla@aclunc.org
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Attorneys for Plaintiffs
7

UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10
AMERICAN CIVIL LIBERTIES UNION OF 11 NORTHERN CALIFORNIA,

12

Plaintiff,

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

v.

14 TRANSPORTATION SECURITY ADMINISTRATION,
15
Defendant. 16

17

18

19

20

21

22

23

24

25

26

27

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 2 of 11

1

INTRODUCTION

2

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

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

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

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

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

7 individual’s life.

8

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

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

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

11 demonstrate that the number of these searches have multiplied year after year. Access to 12 information about electronic device searches at airports is necessary to inform meaningful public 13 debate over the scope of government conduct that potentially threatens core civil rights and

14 liberties protected by the Constitution. Federal agencies have published their policies regarding 15 searches of electronic devices at international borders. But the federal government’s policies on 16 searching electronic devices of domestic air passengers remains shrouded in secrecy.

17

3. Over two months ago, on December 20, 2017, Plaintiff American Civil Liberties

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

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

20 records about policies, procedures, and protocols regarding the search of airplane passengers’ 21 electronic devices; training of relevant personnel related to the search or examination of 22 electronic devices; and equipment used to search, examine, or extract data from electronic

23 devices.

24

4.

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

25

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

26 statutorily entitled. 27 ///

28

1

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 3 of 11

1

PARTIES

2

6. Plaintiff American Civil Liberties Union of Northern California is an affiliate of

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

4 mission of protecting civil liberties from government incursions, safeguarding basic

5 constitutional rights, and advocating for open government. ACLU-NC is established under the 6 laws of the state of California and is headquartered in San Francisco, California. ACLU-NC has 7 over 90,000 members. In support of its mission, ACLU-NC uses its communications department

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

9 in-depth reports, and other publications.

10

7.

Defendant Transportation Security Administration is an agency within the

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

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

13

JURISDICTION

14

8. This Court has subject matter jurisdiction and personal jurisdiction over the

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

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

17

VENUE AND INTRADISTRICT ASSIGNMENT

18

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

19 §§1391(e) and 1402. Plaintiff has its principal place of business in this district.

20

10. Pursuant to Local Rule 3-2(c) and (d), assignment to the San Francisco division is

21 proper because Plaintiff is headquartered in San Francisco.

FACTUAL ALLEGATIONS

22

The Federal Government’s Searches of Electronic Devices at Airports and Borders

23

Are a Matter of Significant Public Interest

24

11. Mobile phones, computers, tablets, digital cameras—these electronic devices and

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

26 by millions of passengers who travel in and out of airports in the United States each day. With 27 these devices, passengers take with them photographs of themselves, their families, and their

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2

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 4 of 11

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

2 archives; social media messages and networks; confidential business and legal information; 3 protected medical records; bank statements; and a wealth of other information that lay bare how 4 and with whom people communicate, work, and live each day.

5

12. The Supreme Court has recognized the significant privacy interests an individual

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

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

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

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

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

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

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

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

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

15 2491. In light of the privacy concerns posed by searches of cell phones, the Court declined to

16 allow warrantless searches by police incident to an individual’s arrest.

17

13. Federal agencies, such as Defendant TSA, U.S. Customs and Border Protection

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

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

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

21 2017.

22

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

23 electronic devices at the border, including airports. CBP requires passengers to provide their 24 devices unlocked or the password or PIN so that an officer can view data contained on the

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

26 of Electronic Devices, Jan. 4, 2018, http://bit.ly/2rjmnYj. CBP policy authorizes both a “basic 27 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.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 5 of 11

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

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

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

4

15. Media accounts highlight the privacy concerns posed by electronic device

5 searches, seizures, and copying of data: a NASA scientist potentially carrying sensitive 6 information on his phone, Loren Grush, “A US-Born NASA Scientist Was Detained at the 7 Border Until He Unlocked His Phone,” Feb. 12, 2017, The Verge, http://bit.ly/2ooHzr3; a

8 Canadian photojournalist denied entry to the United States to cover protests when he failed to 9 provide access to his phones, Daniel Victor, “Canadian Journalists Detention at U.S. Border 10 Raises Press Freedom Alarms,” N.Y. Times, Dec. 2, 2016, http://nyti.ms/2EN1A5q; a U.S.

11 journalist working for the Wall Street Journal who objected to turning over her cell phones, id.; a 12 Muslim-American woman returning from visiting her refugee family overseas, whose phone was 13 searched, Lubana Adi, “My phone was searched at LAX, which apparently is the new normal,”

14 Los Angeles Times, April 7, 2017, http://lat.ms/2opysbm; a U.S. citizen asked to unlock his cell 15 phones before he could board a flight from Los Angeles to Saudi Arabia, Daniel Victor, “What 16 Are Your Rights if Border Agents Want to Search Your Phone?,” N.Y. Times, Feb. 14, 2017,

17 http://nyti.ms/2lj2AE9.

18

16. These troubling incidents have produced intense public interest in searches of

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

20 searches. Plaintiff ACLU-NC and other organizations, along with media outlets, have published 21 guidance for citizens and immigrants as they travel domestically and internationally and 22 encounter requests from TSA, CBP or ICE to search their devices. See ACLU of Northern

23 California, “Know the Facts and Know Your Rights for Arab, Middle Eastern, Muslim, and 24 South Asian Communities,” May 2017, http://bit.ly/2CDeOMb; Electronic Frontier Foundation, 25 “Digital Privacy at the U.S. Border: Protecting the Data on Your Devices, Dec. 2017,

26 http://bit.ly/2CAwdFu; Patrick J. Lee, “Can Customs and Border Enforcement Search Your 27 Phone? These Are Your Rights,” ProPublica.org, Mar. 13, 2017, http://bit.ly/2nJ2Slh; Daniel

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 6 of 11

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

2 Feb. 14, 2017, http://nyti.ms/2lj2AE9.

3

17. CBP claims the authority to conduct warrantless searches of electronic devices at

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

5 being challenged by the national ACLU, of which Plaintiff ACLU-NC is an affiliate, as violating 6 the First and Fourth Amendments to the Constitution. See Alasaad v. Duke, No. 1:17-cv-117307 DJC (D. Mass. filed Sep. 13, 2017).

8

18. Alongside CBP, TSA has also been reported as heightening its screening

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

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

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

12 Phone,’” Extreme Tech, July 26, 2017, http://bit.ly/2sG2Fq4.

13

19. TSA has not made publicly available any policies or procedures governing

14 searches of electronic devices, especially those held by passengers engaged in purely domestic 15 air travel. As such, the public is unaware of the legal basis for TSA’s searches of electronic 16 devices of passengers not presenting themselves at the border and flying on a domestic flight.

17 Further, the public is unaware of TSA’s policies and procedures for advanced or forensic 18 searches, in which external equipment is used to search, examine, or extract data from 19 passengers’ electronic devices and SIM cards. And the public has no knowledge of TSA’s

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

21 resident on those devices, or use of the device to access data held on a “cloud” or elsewhere.

22

20. The information sought in ACLU-NC’s FOIA request would reveal for the first

23 time information concerning TSA’s searches of domestic passengers’ electronic devices, and 24 allow members of the public a meaningful opportunity to vet the government’s broad claim of

25 authority to conduct such searches.

26 /// 27 ///

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 7 of 11

1 Plaintiff Submitted a FOIA Request to TSA Headquarters But TSA Has Failed to Produce Any Records
2

3

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

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

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

6 NC’s TSA Headquarters Request request is appended hereto as Exhibit 1.

7

22. In particular, the TSA Headquarters Request seeks records, from January 1, 2012

8 to the present, regarding any of the following:

9

1. Policies, procedures, or protocols regarding the search of passengers’ electronic

10

devices. This includes but is not limited to any policies, procedures, or protocols

11

related to the “enhanced screening of electronic devices” referenced by thenSecretary of Homeland Security John Kelly in June 2017.1

12

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

13

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,

14

maintenance, and location of such equipment; any inventories of the number of each

15

type of equipment.3 This request includes any records in the possession of TSA but generated by third-party service providers.

16

3. Training of transportation security officers or contractors retained to provide security

screening services, related to the search or examination of passengers’ electronic

17

devices.

18

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

19 Headquarters Request.

20

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

21 received any response from TSA to the TSA Headquarters Request.

22

23 1 https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference

24 2 Examples of such devices include, but are not limited to, a Universal Forensic Extraction

Device (UFED) manufactured by Cellebrite. E.g., 25 https://www.cellebrite.com/en/press/cellebrite-introduces-ufed-touch2-platform/.

26 3 According to the Government Accountability Office, TSA possesses ““acquisition documentation for passenger and baggage screening technologies,” including memorandums and

27 “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.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 8 of 11

1

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

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

3 Request.

4

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

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

6 correspondence indicating when TSA might provide any documents.

7

27. Plaintiff ACLU-NC has exhausted all applicable administrative remedies.

8

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

9 Plaintiff Submitted a FOIA Request to TSA’s San Francisco Field Office But TSA Has Failed to Produce Any Records
10

11

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

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

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

14 Plaintiff ACLU-NC’s TSA Field Office Request is appended hereto as Exhibit 2.

15

30. In particular, the TSA Field Office Request seeks records, from January 1, 2012

16 to the present, regarding any of the following:

17

1. Policies, procedures, or protocols regarding the search of passengers’ electronic

18

devices. This includes but is not limited to any policies, procedures, or protocols

related to the “enhanced screening of electronic devices” referenced by then-

19

Secretary of Homeland Security John Kelly in June 2017.4

2. Equipment, including but not limited to SIM-card readers and software manufactured

20

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

21

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

22

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.

23

24

4 https://www.dhs.gov/news/2017/06/28/remarks-council-new-american-security-conference. 25 5 Examples of such devices include, but are not limited to, the UFED Touch Platform

26 manufactured by Cellebrite: https://www.cellebrite.com/en/press/cellebrite-introduces-ufedtouch2-platform/.

27 6 According to the Government Accountability Office, TSA possesses ““acquisition

documentation for passenger and baggage screening technologies,” including memorandums and

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7

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 9 of 11

1

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

2

Airport.

4. All communications between SFO and TSA referencing the replacement,

3

supplementation, or relocation of any piece of Transportation Security Equipment

(“TSE”) at SFO.7

4

5. Training of transportation security officers or contractors retained to provide security

screening services, related to the search or examination of passengers’ electronic

5

devices.

6

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

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

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

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

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

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

12

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

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

14 letter is appended hereto as Exhibit 4.

15

Item 2: This request seeks all records in the possession of the TSA San Francisco Field

16

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

17

from passengers’ electronic devices and SIM cards and (2) any inventories of the number

of each type of such equipment.

18

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

19

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,

20

and then to assert an applicable FOIA exemption.

Item 4: This request seeks all communications between SFO and TSA about TSE with a

21

nexus to the search of, examination of, or extraction of data from passengers’ electronic

devices at SFO.

22

23

24 “information regarding the number of each technology deployed in airports nationwide.”

http://www.gao.gov/assets/680/674297.pdf at 28. 25 7 According to a TSA 2015 report to Congress, “If TSA has identified the need to replace,

26

supplement, or relocate a piece of TSE,” TSA “informs the airport of the decision through a memo and follow-on communication as needed.”

27 https://www.fbo.gov/utils/view?id=62bf59d0ee09e6681071db6c5b15d803 at 17. This request

seeks any such memos, as well as follow-up communications.

28

8

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 10 of 11

1

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

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

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

4

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

5 Request.

6

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

7 25, 2018 of a “perfected case number” and that no further information was needed from Plaintiff

8 at that time.

9

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

10 determination from TSA of whether TSA will comply with the TSA Field Office Request.

11

37. As of the date of the filing of this Complaint, Plaintiff has not received any

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

13 indicating when TSA might provide any documents.

14

38. Plaintiff has exhausted all applicable administrative remedies.

15

39. TSA has wrongfully withheld the requested records from Plaintiff.

16

FIRST CLAIM FOR RELIEF

Violation of Freedom of Information Act For

17

Wrongful Withholding Of Agency Records

18

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

19

41. Defendant TSA has wrongfully withheld agency records requested by Plaintiff

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

21 requests.

22

42. Plaintiff has exhausted the applicable administrative remedies with respect to

23 TSA’s wrongful withholding of the requested records.

24

43. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

25 the requested documents because Defendant TSA continues to improperly withhold agency

26 records in violation of FOIA. Plaintiff will suffer irreparable injury from, and have no adequate 27 legal remedy for, TSA’s illegal withholding of government documents pertaining to the subject

28

9

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

Case 3:18-cv-01539-LB Document 1 Filed 03/12/18 Page 11 of 11

1 of Plaintiff’s FOIA request.

2

PRAYER FOR RELIEF

3

WHEREFORE, Plaintiff prays that this Court:

4

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

5

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

6 Plaintiff is unlawful;

7

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

8 action;

9

D.

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

10

11 Dated: March 12, 2018 12

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

13

By: /s/ Vasudha Talla

.

14

Vasudha Talla

Linda Lye

15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28

10

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO.__________________

 U.S. Department of Homeland Security
Freedom of Information Act Branch 601 South 12th Street
Arlington, VA 20598-6020

December 19, 2018

3600.1 FOIA Case Number: 2018-TSFO-00143
VIA EMAIL ONLY Ms. Vasudha Talla Staff Attorney ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 vtalla@aclunc.org

Dear Ms. Talla:
This letter is provided as final resolution of your Freedom of Information Act (FOIA) request submitted on December 20, 2017. The Transportation Security Administration (TSA) provided you with interim responses to your request on March 20, May 15, and June 22, 2018 (regarding Request 1)1; July 20, 2018 (regarding Request 5); and July 27, 2018 (regarding Requests 2-4). You have agreed that no further processing of your FOIA request is necessary if TSA provides a letter clarifying certain information discussed in the interim responses. Accordingly, for the purpose of finally resolving and closing this matter, TSA provides you with the following information:
As indicated in the interim responses, TSA does not have policies that address searching passengers’ electronic devices for the purpose of copying or examining the data or information stored within, as TSA does not search for or collect information housed on passengers’ electronic devices and does not provide screening personnel with any means to do so (as indicated by TSA’s “no records” response to your Requests 2 through 4 seeking records regarding equipment that could be used for that purpose). TSA’s search for records responsive to your FOIA request located no records expressly addressing the content housed on passengers’ electronic devices. The records identified as responsive to your Request 1 set forth TSA’s procedures for security screening passengers’ electronic devices, including through the use of x-ray and explosives trace detection technology. These procedures do not include searching the content housed on

1 On July 26, 2018, you submitted an administrative appeal of TSA’s interim response to Request 1. TSA issued a final decision on the appeal on August 23, 2018.

2018-TSFO-00143 December 19, 2018

Page 1 of 2

electronic devices. To the extent your FOIA request sought a record that contains an explicit prohibition on such activity, no such record was located. This search result is consistent with the facts that screening personnel are required and expected to follow TSA’s security screening procedures, TSA does not search electronic devices for the purpose of examining or extracting electronic content that may be contained on the device, and screening personnel are not provided with any equipment to do so.
As you have agreed, TSA will not engage in any further processing of your FOIA request, and this matter is now closed.
Sincerely,
Teri Miller FOIA Officer

2018-TSFO-00143 December 19, 2018

Page 2 of 2


The #ACLU of Northern California filed a lawsuit under the #FOIA claiming that #TSA's “policies on searching the phones, laptops, and tablets of domestic air passengers remain shrouded in secrecy”