Access Now v. U.S. Customs and Border Protection, No. 1:24-cv-03979 (S.D.N.Y., filed May 23, 2024)

A digital rights advocacy organization—Access Now—and the Harvard Cyberlaw Clinic are suing U.S. Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA) for failing to produce records related to personal data the agency collects via its CBP One app.

According to an internal CBP One privacy impact assessment cited by the lawsuit, the app can collect biographical information, images, and geolocation. In February 2024, CBP disclosed on the Federal Register that the app also will begin gathering biometric information from nonimmigrants leaving the country, who will now be required to provide photos with geolocation data to prove they have left the United States.

The complaint alleges that CBP One can use the data it gathers for automated decision making, profiling, and registering people on the move. The lawsuit seeks records documenting how the app functions and the number of people in the Mexican, Guatemalan, Honduran, and Salvadoran governments who access CBP One to obtain data about migrants.

Access Now is an international organization that defends and extends the digital rights of people and communities at risk around the world. Access Now does not provide legal advice to migrants, asylum seekers, refugees, and other people on the move.

CBP filed its answer on August 2, 2024. On October 10, 2024, Access Now issued a press release that CBP has released 2,912 pages of documents in response to Plaintiffs’ FOIA request, and is reviewing the documents to assess adequate compliance.

Documents:

• Complaint

Counsel: Mason A. Kortz ǀ Harvard Law School Cyberlaw Clinic

Contact: Access Now ǀ equipolac@accessnow.org

Press:

• Ali Nassar-Smith, ICE, CBP Face Lawsuits Over Noncitizen Biometric Data Sharing, Find Biometrics, May 27 2024.
• Suzanne Smalley, CBP, ICE sued for information about sharing of noncitizens’ biometrics, The Record, May 24, 2024.
• Access Now, U.S. CBP releases records on controversial CBP One app after Access Now’s lawsuit, October 10 2024.