Dearborn, Michigan – Travel is a normal part of life for Michigan lawyer Amir Makurd. Recently in December he went abroad and returned to the US without any problems.
“I’ve been abroad at least 20 times. I’ve been all over Europe. I go to Lebanon every year,” he said.
But returning to Detroit Metro Airport was a very different experience this month.
He and his family had just returned from a spring break holiday in the Dominican Republic when they reached the customs checkpoint.
“The agent looked around me, turned to another agent and asked if the TTRT agent was here. I didn’t know what this meant.”
He Googled the acronym. It stands for tactical terrorist response team.
“As an Arab American and as a Muslim American, whenever I travel, even if I drive from Canada, I feel some uneasy about it. I’m going to be randomly chosen to be stopped or profiled,” he explained.
“When he said those words, I was like, ‘OK, I’m going to be featured here.’ ”
Sure enough, Makurd and his family were asked to go to another room.
Makled is a US citizen born in Detroit, Michigan, so he knew he could not deny his entry into the country. He urged his wife and children to pass through the checkpoint without him.
“I knew my rights at the border in that respect, and I was also familiar with the scope of border search,” he said. “This is the first time I’ve been stopped.”
But what happens next will put the lawyer in a precarious position.
Border management agents have a considerable legal right to search for someone’s belongings. The idea is to prevent security risks, contraband, or environmental threats from entering the country.
However, these searches have been extended to the content of electronic devices. And it raises questions about which materials need to be regulated – and what should be protected from the government’s practicing eyes?
Threats to lawyers and client privileges
Makled knew that border agents could take his phone. But as a lawyer, he faced a spiny ethical dilemma. His phone included information about his privileged lawyers and clients.
In the United States, the fundamental tenet of the legal system is that clients can have honest discussions with lawyers.
A considerable amount of Makled work was on his phone. When asked to hand over, he said he could not give the device to border officers.
“Cloud-based software for use for all your email, text messages, files and office,” he said.
As a civil rights and criminal defense lawyer, Makled represents those he said were particularly vulnerable.
One of his clients is a protester who was arrested last year at the University of Michigan pro-Palestinian camp. She was later charged with resisting and obstructing the police.
Makled believes that he was targeted because the border officers knew this information. One of the agents called him a “famous lawyer,” he said.
Eventually, he gave the agent a written permission to see his contact details, but no other permissions. About 90 minutes later at the airport, he was allowed to leave by phone.
Growth trends
For almost a century, the U.S. Code Title 19 grants border control officers the right to search for countries, baggage or other items to enter at the time of inspection.
However, today’s digital devices contain far more information than is related to human travel.
In the most recent fiscal year, 47,047 electronics were seen searched by border officers.
This is an increase of nearly 13% from the previous year in 2023, when US Customs and Border Protection recorded 41,767 electronic searches.
The question of whether these searches can be manipulated for political gain or retaliation has long plagued the process.
For example, in November 2018, an employee of high-tech Apple Andreas Gal said he was taken into custody while returning to San Francisco from an international trip.
Like Makled, gals were flagged for TTRT. And like a lawyer, customs officials pushed him to search for his electronics. He refused. Gal later said he believes he is being targeted in response to political views he has expressed online.
However, in recent weeks, experts fear that such search threats have risen.
Since taking office in January for his second term, President Donald Trump has sought to deport non-citizens whom he considers to be critical of the United States or its ally, Israel. Materials from electronic devices are one of the evidence that they allegedly used to expel people in the country.
For example, kidney transplant expert Rasha Alawieh was denied re-entry after returning to the United States from her hometown of Lebanon. She had a valid H-1B visa and was able to work in the United States.
News reports show that the Trump administration cited photos recovered from her phone as a motive to oust her, including images of Hezbollah leader Hassan Nasrara.
“Praise and support terrorists killing Americans is the basis for the denied issuance of visas,” the Department of Homeland Security wrote in a statement after Alawieh’s expulsion.
Also in March, the French government said one of its citizens, a scientist, was prevented from entering the United States due to his telephone political message.
However, the Trump administration denied the charges.
“The French researcher in question owned confidential information about electronic devices from the Los Alamos National Laboratory, violating a non-disclosure agreement,” Homeland Security spokesman Tricia McLaughlin wrote on social media.
“The assertion that his removal is based on political beliefs is blatantly wrong.”
Lack of legal consensus
There are two types of screening a device may receive during border control custody.
A “light” search occurs when an executive manually examines an electronic device. Advanced searches that require legal “reasonable suspicion” of a crime include the device being connected to an external device. This device will not be returned to the owner for weeks or months.
Border agents do not require a warrant to search for electronic devices, but US citizens are not obligated to unlock electronic devices to re-enter their country.
However, for travelers who are neither U.S. citizens nor permanent residents, refusing to share these details could result in their entry being denied.
However, experts say these practices raise serious concerns about the fourth amendment to the US Constitution, which encourages government irrational searches and protection from seizures.
Esha Bandari, deputy director of the American Civil Liberties Union’s speech, Privacy and Technology Project, explained that she saw the government’s example to use these border checks to bypass the Fourth Amendment Protection.
“The government is increasingly treating this as a loophole in the constitution,” Bandari said.
“They have someone under investigation, and rather than waiting to see if they can establish a cause that could require the judge to give a warrant, they will wait until someone crosses the border and treats it as a convenient opportunity to search for their devices.”
However, how far that loophole can extend is a matter of debate.
Saira Hussain, a senior staff attorney at the Electronic Frontier Foundation, said U.S. courts have yet to reach a consensus on how far searches for digital devices can go and what the restrictions are.
“At this point, there are exactly three different rulings on which parts of your phone can be searched, whether you’re diving into San Francisco vs. Boston vs. Atlanta. [or] What level of doubt is necessary?” Hussein said. “Many lower courts have ruled on this issue. [but] There was no uniformity. ”
On his part, Makled said he was not blocked from traveling or represent a controversial cause.
“I feel this is a threatening tactic. It’s an attempt to discourage people from taking on these types of cases,” he said of the defense of protesters arrested at the University of Michigan.
“I say I’m not discouraged. I’ll continue to do what I believe.”
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