Two cases in the Eastern District of Virginia—a court regarded as one of the most deferential to executive branch concerns regarding national security—are testing the federal government’s authority to seize and search Americans’ phones when they re-enter the country from abroad.
In the first, decided July 15, a federal judge ruled that Customs and Border Protection (CBP) agents had violated the Fourth Amendment when they searched the phones of an American citizen who directs a Palestinian advocacy organization. In the second, argued July 29 in the same courthouse, another judge refused to dismiss a claim by a prominent American journalist whose phones were similarly seized when he returned from overseas travel, and ordered a government accounting for the actions and a limited discovery on behalf of plaintiffs.
Both individuals claim they were stopped and searched in retaliation for exercising their First Amendment rights to challenge U.S. policy in the Middle East.
At the center of the first case is Osama Abu Irshaid, the executive director of American Muslims for Palestine (AMP) and a U.S. citizen. Abu Irshaid landed at Dulles International Airport on June 3, 2024, on a return flight from Doha, Qatar. Soon after deplaning, Abu Irshaid was met by CBP officers, who immediately escorted him to secondary inspections. There, CBP Officer Scott Cowles (who testified that he had advance knowledge of Abu Irshaid’s arrival) questioned Abu Irshaid for about an hour and performed what CBP calls an “advanced” search, in which federal agents “connect equipment, wired or wireless, to copy and/or analyze the contents of an electronic device. Abu Irshaid’s devices were not returned until after he sued for their release.
While in secondary inspection, Abu Irshaid was asked by CBP officer Cowles about a letter from Rep. James Comer (R-KY), chairman of the House Oversight Committee, which claimed that Abu Irshaid’s organization had “substantial ties to Hamas.” (Cowles testified that “if Congress was willing to publish the letter, it was at least worth me asking” about the alleged ties.) To justify a forensic search, Cowles cited a “national security concern” to his supervisor, which was all that was required. The government ultimately argued at trial that its officers had reasonable suspicion that Abu Irshaid was financing terrorism.
In the July 15 opinion, U.S. District Judge Michael Nachmanoff determined CBP’s forensic search of Abu Irshaid’s devices did not have a legal basis. Nachmanoff acknowledged the general rule for border searches, affirmed under the Fourth Circuit’s 2024 decision in United States v. Nkongho, was that federal agents don’t need a warrant for “routine searches” (e.g., an officer manually scrolling through an unlocked phone). But the court found that a forensic search, like that conducted on Abu Irshaid’s devices, is not a “routine search,” and because it can take weeks for devices to be returned, classifies the government action as a property seizure in which “a traveler has a strong possessory interest.” For that, the government must show “individualized suspicion of an offense bearing some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.” A “mere hunch is not enough,” as the precedent Nachmanoff cited put it, and the judge concluded that “there was not reasonable suspicion of Plaintiff engaging in terrorism financing to search his devices.”
But while the court ruled Abu Irshaid’s Fourth Amendment rights had been violated through the warrantless forensic search, it did not find that the government action had violated his First Amendment rights.
Abu Irshaid had argued that the searches were made in retaliation for his affiliation with AMP and his advocacy for Palestinians, a claim that requires plaintiffs demonstrate three points: that the activity was protected, that the government did something that would deter a person of ordinary firmness from continuing it, and—crucially—that the protected activity caused the government’s action. The court ruled that “the first element is not in serious question in this case,” and also sided with Abu Irshaid on the second, arguing that there is an “intuitive chill implicated by the unjustified forensic search of cell phones.” On the third element, however, Nachmanoff ruled that Abu Irshaid had not shown his advocacy caused the searches. Abu Irshaid’s lawyers had argued that the Comer letter, which claimed Abu Irshaid’s organization supported Hamas, was a prima facie First Amendment violation, and that because the letter’s contents factored into the rationale for the search, the searches wouldn’t have happened had he not engaged in the advocacy the letter attacked.
The court rejected that argument and declared that “no evidence indicates that the CBP officers took any interest in these aspects of the Comer letter in determining whether to search Plaintiff’s phones.” Cowles was “drawn instead to the letter’s mention of terrorism and national security” and to “the simple existence of the letter, its recency, and an ‘ongoing congressional inquiry.’”
Further complicating the matter is that the animus Abu Irshaid points to appeared to stem from Congress, not CBP, which the court called a “particularly complex” inquiry because “the official with the malicious motive does not carry out the retaliatory action himself.”
On July 29, Judge Leonie Brinkema of the same Eastern District Court heard arguments in a different case over two phones the government seized from journalist Max Blumenthal at Dulles after traveling abroad, including to Iran, and held for about a week. Blumenthal filed a miscellaneous action under Federal Rule of Criminal Procedure 41(g), which asks only for the return of property and, in the words of the court, “also for any information that was obtained from [his] devices.” While Assistant U.S. Attorney Dennis Barghaan argued that Blumenthal’s devices had all been returned, and that agents had been unable to conduct a search of them, Brinkema refused to take the government at its word, saying “we don’t know if somebody ran some password algorithm over the phone and tried to figure out how to get into it.” Brinkema ordered a limited discovery, with a channel for anything the government says it cannot disclose in public filings.
Brinkema said Blumenthal’s occupation as a journalist who reports critically on the U.S. government contributed toward that decision. The case carries “particular concern to the Court,” Brinkema said, “because there’s been so much recently in the ether about attempts by the government to intrude upon a reporter’s right to report.” She cited as an example recent subpoenas that were issued to New York Times reporters. She even suggested Blumenthal could have an expert examine the devices for any sign that they were “tampered with or accessed in some way.”
Brinkema later agreed to Barghaan’s request to set subject-matter limits so that discovery would not become what he called “an open field to ask any and all questions about why were they interested in Mr. Blumenthal’s phones,” which the government argued would be “completely irrelevant to the limited issue before the Court at this point.”
But that limited scope of discovery follows from the fact that Blumenthal —unlike Abu Irshaid—has not sued under the First or Fourth Amendments. Were Blumenthal to bring the kind of civil action Abu Irshaid brought, the question of “why [government agents] were interested in Mr. Blumenthal’s phones” would be relevant and a separate motion for discovery could be filed later.
Even without discovery, there is already reason to believe the seizure of Blumenthal’s devices was motivated by animus toward his exercise of his First Amendment rights. Blumenthal points to a post on X by Laura Loomer—an influential activist in Trumpworld—who on July 5 called for Secretary of Homeland Security Markwayne Mullin to “have Max Blumenthal taken off the plane by U.S. Marshals when he lands back in the U.S.” and “have Max detained.” In a separate post on August 2, Loomer publicly took credit for his stop and search at Dulles, declaring “I reported him to the authorities” over his travel abroad.
Whether that would be enough to prove retaliation is another matter, however, and the Abu Irshaid case shows the obstacles to achieving a favorable verdict for plaintiffs.
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