An American Muslim woman has formally asked a federal judge to force border officials to delete data copied from her iPhone 6S Plus, months after it was seized from her when she landed at Newark International Airport in February 2018 while returning from a trip abroad.

However, attorneys for the woman, Rejhane Lazoja, have taken the unusual step of not bringing a run-of-the-mill civil lawsuit.

Instead, in federal court in New Jersey on Wednesday, her attorneys filed what’s called a Rule 41(g) Motion, otherwise known as a "Motion to Return Property."

Normally, this rule is invoked for tangible items seized as part of a criminal investigation, not for digital data that can easily be copied, bit for bit. Here, Lazoja has asked the judge to return data that she already has—after all, federal authorities eventually returned her iPhone after 90 days, fully intact.

"They provided no justification for why they took the phone," one of her attorneys, Albert Fox Cahn, of the Council on American-Islamic Relations (CAIR), told Ars. "They've never accused her of a crime."

Lazoja’s case has raised new questions about the state of the law with respect to warrantless border searches, particularly in the wake of two notable Supreme Court cases that have dealt with digital privacy in recent years, Carpenter v. United States (2018) and Riley v. California (2014).

"What we are seeing is an environment where the courts recognize a unique privacy interest in cell phones as repositories of the most intimate information one could have, and access credentials for all of our accounts," Cahn added.

From 0.005 percent to 0.007 percent

Lazoja v. Nielsen et al is similar to an ongoing lawsuit ( Alasaad v. Duke ) in federal court in Massachusetts. That case grapples with whether Americans can be compelled to unlock their digital devices upon returning home.will take many months, if not years, to be fully adjudicated.

"We have lots of questions about how the Trump administration is conducting border device searches," Adam Schwartz, an attorney with the Electronic Frontier Foundation, who is representing Alasaad and the other plaintiffs, emailed Ars. "We expect to explore them this fall in civil discovery. Among other things, we are seeking the government's evidence (if any) that its policy of warrantless border device searches actually advance any legitimate government interest."

For its part, Customs and Border Protection maintains that such digital searches are exceedingly rare.

According to the agency’s most recent figures, for Fiscal Year 2017, out of 397 million international travelers, there were only 30,200 digital border searches conducted—or approximately 0.007 percent. This is up from 0.005 percent in Fiscal Year 2016.

CBP has yet to fully explain why there has been this 50 percent increase year-over-year.

"The need for border searches of electronic devices is driven by CBP’s mission to protect the American people and enforce the nation’s laws in this digital age," the agency wrote in January 2018.

In order to search and seize someone’s device without a warrant—something that would otherwise require one—federal authorities rely on what’s known as the "border doctrine." This is the controversial but standing legal idea that warrants are not required to conduct a search at the border. The theory has been generally recognized by courts, even in recent years.

Greasing the wheels of justice

According to Lazoja’s affidavit, which was submitted with her motion, she was returning back to the United States on February 26, 2018 on a flight from Zurich, Switzerland.

After using an Automated Passport Control kiosk after landing at Newark, Lazoja said she was sent to private questioning by two Customs and Border Protection agents—one man and one woman.

Lazoja noted in her affidavit that as a practicing Muslim who wears a hijab, she does not want to be seen "in a state of undress without my hijab" by men who are not members of her family.

The two agents asked if Lazoja had any electronic devices, so she produced her phone.

They then asked her to unlock the phone, but she refused—citing the fact that the phone contained such "undressed" images of herself as well as "legal communications with the Council on American-Islamic Relations."

The agents never returned the iPhone 6S Plus, which was running iOS 9.2.1 (13d15), and gave her a receipt instead. After they kept the phone for 90 days, she contacted attorneys at CAIR.

Cahn, one of her attorneys, told Ars that federal authorities "forensically cracked" her phone and told her that they had imaged it before returning it to her. In short, they apparently have everything contained on her phone the day it was seized.

Her lawyers want a judge to "order Defendants to return her Data, to expunge any copies made of the Data, to disclose all third parties who received and/or retain copies, partial or complete, of the Data, and to provide information about the basis for the seizure and retention of the Property."

In addition, the attorneys want the court to essentially overturn the border doctrine and prevent them from doing something similar in the future, which may prove to be a tall order.

One advantage of a Rule 41(g) Motion is that it can be seen by a judge relatively quickly; Lazoja’s attorneys have asked for a hearing on September 17.