Judge orders government to prove it did not access journalist's seized phones

Blumenthal says border agents singled him out after online posts by Trump ally

Journalist Max Blumenthal, founder of the independent outlet the Grayzone, said border patrol agents at Virginia’s Dulles International Airport flagged him for a “secondary inspection” on July 10 after he returned from covering the funeral of Iran’s supreme leader Ali Khamenei in Tehran.

Blumenthal said that weeks before his return, Trump ally Laura Loomer had posted messages on social media targeting him, including one that suggested he should be “taken off the plane by US Marshalls when he lands back in the US … [and] detained.”

“I began to prepare myself for being harassed on my return,” Blumenthal said.

During the secondary inspection, agents asked Blumenthal how he had paid for his trip to Iran, whether he knew the people who had hosted him, and whether he planned to return. They asked to see his two phones, and he declined to provide the passwords. The agents seized the phones but did not take his laptop or digital cameras, Blumenthal said.

The federal agency returned the cell phones a week later — less than 24 hours after the American-Arab Anti-Discrimination Committee filed an emergency motion in district court seeking their return. The government said it could not access the phones and argued that the motion was moot because the devices had been returned.

Blumenthal went back to court Wednesday and received a ruling from Judge Leonie M Brinkema, who ordered the government to prove that it did not access the phones’ contents. Brinkema gave the government 14 days to supply evidence of who had the phones, when they had them, and what was done with them.

Jenin Younes, president of the American-Arab Anti-Discrimination Committee, said the border patrol agents’ decision to take only the phones appeared targeted.

“They didn’t take his laptop or digital camera,” Younes said. “That suggests they’re interested in contacts, sources, personal communications — maybe even tracking data.”

Brinkema cited a recent Fourth Circuit ruling that distinguished a basic cellphone search — where an owner allows an agent to open the phone — from an “advanced” search using equipment “to copy and/or analyze the contents of an electronic device.” Brinkema said that under Fourth Circuit case law, a search warrant would be required for that degree of intrusion. No warrant was produced, according to the judge.

Blumenthal’s case is the second concerning cell phone seizures at U.S. airports to reach federal court in recent weeks, following a case involving an activist associated with the Atlanta police-training center known as “Cop City.”

Seth Stern, chief of advocacy at the Freedom of the Press Foundation, said the case raises “serious constitutional problems.”

“The Trump administration is finding any excuse it can to target journalists it dislikes, and border searches are one more play in the playbook,” Stern said.

Brinkema noted at Wednesday’s hearing that Blumenthal is a reporter and that the case bears on press freedoms. She referenced the administration’s recent subpoenas of New York Times reporters.

“[G]iven the fact that this plaintiff is a reporter, this case has particular concern to the court because there’s been so much recently in the ether about attempts by the government to intrude upon a reporter’s right to report,” Brinkema said, according to a transcript. “And, you know, just recently in New York, we had the issue of the subpoenas that were issued to the New York Times reporters. I don’t think that can be overlooked.”

Younes pointed out that many other U.S. journalists, including reporters from CNN and the New York Times, were in Iran to cover Khamenei’s funeral, but there has been no public disclosure of any other reporter being detained upon returning. The posts by Loomer, Younes said, “raise the specter he’s being targeted for his views, for his journalism. This strengthens the first amendment aspect of his case.”

Blumenthal said the views that make him a target include being a “Jewish anti-Zionist.”

The judge suggested that Blumenthal could “probably have an expert take a look at his phones to see if there’s any indication they were somehow tampered with or accessed in some way.” Blumenthal said he is “working on that — but it costs a lot.”

Younes said the information Blumenthal is seeking may become what she called “a protracted battle,” because the government’s attorney raised the issue that some of what was done with the phones may be “law enforcement privileged information.”

“You explain how this is done, and the individuals who we are trying to get information from are able to ‘beat it’,” the government’s attorney said, according to Blumenthal.

Blumenthal said Wednesday’s hearing was positive not just for him but for other journalists. “It has positive consequences for other journalists who have faced or will face this kind of repression, from an administration that isn’t responsive to the rule of law,” he said.