After Being Hit With A 'Motion For Return Of Property,' Gov't Agrees To Delete Data Copied From A Traveler's Phone

from the sometimes-the-best-hand-is-the-one-you-force dept

A couple of months ago, Rejhane Lazoja, an American Muslim, sued (sort of... ) the DHS over the search of her iPhone at the border. According to her allegations, CBP officers detained her and demanded she unlock her phone for them. She refused. The CBP seized her phone and searched it anyway, copying all the data it could from her device. It returned the phone to her over three months after it had taken it.

Lazoja didn't allege civil rights violations in her courtroom motion. In fact, it wasn't even technically a lawsuit. Instead, with the help of CAIR, Lazoja filed a Rule 41(g) motion -- something normally used to challenge seizures and forfeitures. In this case, Lazoja wanted her data back -- the data CBP had copied from her phone.

Lazoja leveraged CBP's own policies against it, pointing out its internal guidelines say seized data must be destroyed unless it is determined there's probable cause to retain it. Since this search occurred at the border, it's safe to say the CBP did it because it could, not because it could be justified under the more-stringent standard required further inland.

Apparently, the CBP agrees with this assessment. Or, at least, it has decided this isn't the hill it's going seek precedent on. As Cyrus Farivar reports for Ars Technica, the government has agreed to delete -- i.e., "return" -- Lazoja's phone data.

An American Muslim woman who two months ago asked a federal judge to compel border officials to erase data copied from her iPhone 6S Plus has settled her lawsuit with the government—federal authorities have now agreed to delete the seized data.

This little legal hack may come in handy for millions of travelers and visitors who encounter the CBP and its Constitutionally-unfriendly border search activities. There's been a steady exponential increase in device searches over the last few years, all performed under the guise of greater national security. The CBP has been unable to justify this increased need to paw through people's digital goods, but a long list of policies, law changes, and court decisions has ensured it will likely never need to explain itself to the general public.

With this motion, plaintiffs can at least attempt to force CBP to delete data it has harvested from their devices, as it's unlikely every one of its thousands of digital border searches can meet the probable cause standard to retain seized data. Anyone not forcing the CBP's hand should probably just assume their data resides on a government hard drive somewhere, collecting digital dust and waiting for an enterprising hacker or ill-willed government employee to take advantage of it.

Filed Under: cair, cbp, dhs, iphone

Court Explains Fair Use To Michael Savage; Dismisses Copyright Infringement Charges Against CAIR

from the abuse-of-copyright dept

Back in February, we wrote about how radio talk show host Michael Savage was misusing copyright law to charge the Council on American-Islamic Relations (CAIR) with copyright infringement. Savage had apparently said some negative things about CAIR, and CAIR responded by posting the segment of Savage's show and responding to the points he raised. This kind of criticism is the very definition of fair use, and it seemed clear that Savage was trying to abuse the law to silence CAIR from responding to his allegations. What amazed me, though, were the comments responding to that post, accusing CAIR of all sorts of terrorist activities -- and then naming me as a supporter of the "terrorist jihad" for pointing out that Savage was abusing copyright law. I made no statements either way concerning either what Savage was saying or CAIRs response. My interest was merely in the issue as relating to copyright law -- and, on that, it appears that I was right.

The court has now tossed out Savage's lawsuit, pointing out that CAIRs actions were, indeed, fair use.

The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for [CAIR] to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which [Savage] made the statements.

Furthermore, the court points out that Savage's claim of "lost revenue" from this so-called infringement are incorrect as well:

Plaintiff instead alleges that defendants caused him financial loss in advertising revenue. Assuming the truth of this allegation, it relates only to the economic impact on future shows, and has no impact on the market for the original, copyrighted show on October 29, 2007.

If it's true that CAIR is some sort of evil terrorist organization, then let the feds deal with it. Don't misuse copyright law to do so. If it's true (as others alleged in the comments) that CAIR uses similar tactics on critics, then let's expose that as well. But, misusing copyright law should never be seen as an acceptable way to shut up an opponent. If truth is on your side, use it. Don't try to shut up opponents by twisting copyright law to your purposes.

Filed Under: cair, copyright, fair use, michael savage

Talk Radio Host Accuses Critic Of Copyright Infringement... And Racketeering?

from the for-a-bit-of-criticsm? dept

Radio talk show host Michael Savage apparently isn't as open to accepting criticism as he is in dishing it out. He's suing the Council on American-Islamic Relations for copyright infringement, because CAIR used clips from Savage's show to respond to, and criticize, his statements. That's a perfectly reasonable fair use of copyrighted content. It seems clear that this is merely an attempt to bully and silence a critic. To add even more weight to that claim, Savage isn't just claiming copyright infringement, but racketeering. The reasoning behind the racketeering charge isn't entirely clear (and from the EFF's response about the problems with Savage's filings, it sounds like the reasoning isn't clear to even those who made the racketeering claim), but the idea that posting some radio clips and criticizing them could be seen as racketeering seems pretty ridiculous.

Filed Under: cair, copyright, criticism, michael savage, racketeering