11th Circuit Says No Reasonable Suspicion Needed For Invasive Device Searches At The Border

from the welcome-back-to-the-US,-please-hand-over-your-everything dept

A recent Fourth Circuit Appeals Court decision found government agents at US borders need something more than the nothing currently required to perform searches of electronic devices. Cursory searches without suspicion are still fine in the Constitution-free zone, but forensic searches of cellphones need, at minimum, reasonable suspicion.

This decision aligned the Fourth with the Ninth Circuit, where it was also determined forensic device searches require some sort of suspicion, even if performed at the border. A case out of Massachusetts (First Circuit) challenging a suspicionless device search has been allowed to move forward, possibly bringing another circuit into the mix and deepening the split.

The Eleventh Circuit Appeals Court, however, has sided with the government and against citizens' privacy. It has upheld the lower court's determination that border device searches require no reasonable suspicion, no matter what the Supreme Court said in its Riley decision, which created a warrant requirement for phone searches. (via Jake Laperruque, Brad Heath)

Karl Touset had his devices searched at the Atlanta airport after returning from an overseas trip. This followed some investigatory work by the government which suggested Touset might be involved in child pornography. The detainment and search was also prompted by money transfer service Xoom, which reported several people for making "frequent low money transfers" to people in "source countries" for child porn.

Touset was met by CBP agents on arrival. Manual searches of his two phones revealed nothing, but CBP seized Touset's laptops and external hard drives. Those were forensically searched and child porn was discovered. These warrantless searches were challenged by Touset, but the Eleventh Circuit [PDF] immediately shuts down this line of reasoning by citing the Supreme Court.

The Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we.

Arguing that devices that hold thousands of pieces of personal info doesn't help.

Nor has it “been willing to distinguish . . . between different types of property.”

Neither does pointing out the invasiveness of a forensic search, which can recover long-deleted files or other electronic detritus.

And it rejected a judicial attempt to distinguish between “routine” and “nonroutine” searches and to craft “[c]omplex balancing tests to determine what [constitutes] a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person.” We have been similarly unwilling to distinguish between different kinds of property.

Going from there, the Appeals Court says the Fourth Amendment doesn't apply at the border -- no matter what the Supreme Court justices may have said about the ubiquity of devices capable of storing people's "entire lives."

We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. Just as the United States is entitled to search a fuel tank for drugs, see Flores-Montano, 541 U.S. at 155, it is entitled to search a flash drive for child pornography. And it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects.

The Appeals Court acknowledges its split with the Fourth and Ninth Circuits before moving on to point to its own precedent as being the correct conclusion.

We are unpersuaded. Although the Supreme Court stressed in Riley that the search of a cell phone risks a significant intrusion on privacy, our decision in Vergara made clear that Riley, which involved the search-incident-to-arrest exception, does not apply to searches at the border. 884 F.3d at 1312 (“[T]he Supreme Court expressly limited its holding to the search-incident-to-arrest exception.”). And our precedent considers only the “personal indignity” of a search, not its extensiveness. Vega-Barvo, 729 F.2d at 1346. Again, we fail to see how the personal nature of data stored on electronic devices could trigger this kind of indignity when our precedent establishes that a suspicionless search of a home at the border does not.

And it appears the Eleventh Circuit has reached this conclusion simply because it has strong feelings about the contraband discovered.

Indeed, if we were to require reasonable suspicion for searches of electronic devices, we would create special protection for the property most often used to store and disseminate child pornography.

This ignores the fact that electronic devices are most often used to store and disseminate almost everything -- most of it legal. This is the court refusing to even slightly raise the bar for invasive forensic searches just because it doesn't like this particular appellant. This decision allows the government to root around in everyone's personal papers without a warrant just because some people may carry illicit goods across the border. This isn't a rational reason for refusing to even consider raising the bar to reasonable suspicion (which the agents had in this case). This feels more like an emotional decision, rather than one neutrally-applied, and it does nothing to protect millions of innocent travelers from their government.

Filed Under: 11th circuit, 4th amendment, border searches, device searches, privacy, reasonable suspicion

Fourth Amendment Gets A Small Boost At The Border From Fourth Circuit Appeals Court

from the better-than-maintaining-the-status-quo dept

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation's borders. Most rights are considered to be waived -- especially those affecting privacy -- thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court's Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn't apply within 100 miles of US borders.

This precedential decision doesn't cut the government quite as much slack. While it recognizes border security is a national priority, it's not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.

Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.

In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It's easily covered by the border search exception.

At a border – or at a border’s “functional equivalent,” like the international airport at which Kolsuz was intercepted – government agents may conduct “routine” searches and seizures of persons and property without a warrant or any individualized suspicion.

Not much Fourth to be had there and the underlying circumstances -- the discovery of more firearms parts being moved out the country without proper export licenses -- gave the agents more reasonable suspicion than they actually needed.

But it wasn't the only search performed on Kolsuz's phone. An offsite forensic search followed the airport search.

At that point, CBP Special Agent Adam Coppolo initiated the second search of Kolsuz’s phone, this one commonly known as a “forensic” search. Coppolo first transported the phone approximately four miles from Dulles to the Homeland Security Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so the forensic examination did not reach data stored remotely – or “in the cloud” – and was instead limited to data stored on the phone itself. Even so, the data extraction process lasted for a full month, and yielded an 896- page report that included Kolsuz’s personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.

This search was challenged, with Kolsuz arguing the phone was no longer being searched under the border exception, but rather as "cident to arrest," subject to the Supreme Court's Riley decision. The court agrees… to a point. It doesn't find that taking the phone offsite for a deeper search affected the "border search" nexus. The search was still related to the transnational crime of weapons smuggling. It's the intrusiveness of the search that troubles the court.

We also agree with the district court that under Riley, the forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion.

It's not quite a warrant requirement, but it does suggest federal agents should no longer perform highly-intrusive searches without justification. However, the court won't go as far as to institute a warrant requirement.

What precisely that standard should be – whether reasonable suspicion is enough, as the district court concluded, or whether there must be a warrant based on probable cause, as Kolsuz suggests – is a question we need not resolve: Because the agents who conducted the search reasonably relied on precedent holding that no warrant was required, suppression of the report would be inappropriate even if we disagreed.

It's not a hugely helpful decision but it does show this court isn't willing to allow the border search exception to continue to expand, swallowing up the few shreds of Fourth Amendment that remain. Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

Filed Under: 4th amendment, 4th circuit, border, border exception, device searches, forensic search, hamza kolsuz, privacy

CBP Warrantless Device Searches Continue To Increase And New DHS Guidance Isn't Going To Bring That Number Down

from the visit-a-country-with-zero-rights-without-even-leaving-the-country! dept

The DHS made two significant announcements late last week, both dealing with the CBP's warrantless searches of electronic devices at the border. The first was a bit of info, showing the exponential increase in device searches in 2016 (jumping from 5,000 in 2015 to 20,000 in 2016) is part of a trend, rather than an anomaly. Searches increased another 59% in 2017, rising to 30,200 total.

The DHS and CBP also released statements justifying the ongoing increase in warrantless searches.

"In this digital age, border searches of electronic devices are essential to enforcing the law at the US border and to protecting the American people," John Wagner, a deputy executive assistant commissioner at Customs and Border Patrol, said in a statement.

[...]

CBP's authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust," he added.

These statements are empty and useless. We had just as much of a "digital age" in 2015 and yet searches occurred far less frequently. There seemed to be no less law enforcement happening and no less "secure" as a nation than we are now. In fact, we may have been more secure with fewer searches as we hadn't yet shifted towards a more antagonistic relationship with the rest of the world, starting with our southern bordering neighbor.

It's also difficult to square claims of "judicious, responsible" use of device search authority with the exponential leap in number of devices searched and the DHS's open admission it lacks legal authority for some of the searches its agencies perform.

Accompanying the release of 2017's search numbers, the DHS released updated guidelines on border device searches. The guidelines roughly align with answers delivered by the DHS to Sen. Ron Wyden in response to questions about its warrantless device searches.

The CBP still has carte blanche access to devices of foreigners entering or leaving the country. Its ability to access devices carried by Americans is only slightly more limited. Anything residing on a device can be accessed by CBP officials without a warrant or even reasonable suspicion. From the CBP's search guidelines [PDF]:

Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity. Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device.

CBP officers can also perform "advanced searches." These involve imaging device contents and possible access of remote storage. Again, the CBP claims it needs no warrant to perform these searches, only reasonable suspicion. The guidance makes no mention of the Supreme Court's Riley decision, likely interpreting the decision to apply only to searches incident to arrest, rather than border inspections of "containers" and their "contents" under multiple court-granted warrant exceptions.

Yes, the CBP still equates phones and laptops to suitcases and personal effects. One of the statutes listed in its defense of warrantless access to electronic device contents refers to the CBP's right to search "persons, baggage, and merchandise" entering or leaving the country.

On top of that, the CBP continues to insist all travelers must unlock or decrypt devices/accounts so contents can be inspected. The CBP says it can use external hardware to crack devices and/or detain locked devices indefinitely if travelers aren't compliant. None of this requires a warrant. Nor does it even require reasonable suspicion. All the CBP needs to justify these seizures and searches is a traveler's refusal to hand over passwords or PINs.

Unbelievably, this new guidance is an improvement. Prior to this, the DHS and CBP weren't even limiting their searches to the low bar of reasonable suspicion. So, while the new guidance is earning limited praise from privacy and rights activists, it's also gathering plenty of criticism. Ron Wyden, who was instrumental in getting the DHS to concede its social media account searches had no legal basis, offered up a golf clap for the DHS's new guidance, along with a warning he would continue seeking a legislative end to the "Constitution-free" zone in which the CBP does all of its intrusive work.

“I’ve said it before and I’ll say it again: Americans’ Constitutional rights shouldn’t disappear at the border. By requiring ‘reasonable suspicion’ before conducting forensic searches of Americans’ devices at the border, Customs and Border Protection is beginning to recognize what the Supreme Court has already clearly stated that ‘digital is different.’ It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause...”

“However, there’s more work to do here. Manually examining an individual’s private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full Constitutional rights, no matter where they are in the United States. That’s why Senator Paul and I last year introduced the Protecting Data at the Border Act, which would end the legal Bermuda Triangle at the border and require warrants for law enforcement officials to search Americans’ phones and laptops at the border.”

Filed Under: border, cbp, customs, device searches, dhs

DHS Documents Show Harassment And Intrusive Device Searches Are A Common Occurrence At US Borders

from the like-we-really-expected-docs-to-show-gracious-paragons-of-restraint dept

This is apparently the price we pay to live in the Land of the Free:

Grievances over lost privacy run through a trove of roughly 250 complaints by people whose laptops and phones were searched without a warrant as they crossed the United States border. Filed with the Department of Homeland Security since 2011, mostly during the Obama administration, these stories add a personal dimension to a growing debate over rights, security and technology.

There are nearly 100 pages of long, detailed complaints in the document [PDF] turned over by the DHS in response to the Knight Institute's' FOIA request. The incidents detailed are troubling, seemingly going beyond what's needed to actually secure the nation's borders. Multiple complaints show intrusive searches and questioning are routine, even if the destinations traveled to are equally routine.

My fiance and our families along with 38 guests were there to celebrate our wedding, While going through Customs again I was asked to take a seat on the wall. but this time my wife was told to do the same. After 10 minutes a customs officer approached vs and told us to go with him. This time both my bags and my wifes bags were searched. Along with being searched the officer asked a series of very personal questions about my background. I answered the questions to the best of my ability. He then proceeded to ask me questions if I was ever charged with rape or child molestation. Even when I gave him a stern no he asked the question three more times. All this is going on while my newlywed wife is standing right next to me. I do not see why is was necessary for your officer to talk to me that way and treat me like that in front of my wife. My background proves that I have never been charged with either offense.

[...]

As soon as I got out of the car I was questioned by the custom officer who was there to inspect the car and he wanted to have proof that I had a P2 because I told him I work in the states as a singer. When I was inside the customs officer at the booth questioned me then went outside to check on the status of my vehicle. Once he was back inside he then asked me to enter a room and had another female customs officer along with him. Once we were inside he joked and said the reason for the female officer to be present was because he didn't want me to feel like he was hitting on me as he was sure it happens a lot with other customs officers. He had my phone along with another passengers and asked me to open only mine although they were both locked. He also told me that he had the right to do this without my permission. His reason for doing this was on the passenger's phone there was a picture of me and he felt he needed to make sure I wasn't in the U.S for escorting purposes. I told him I am a singer and also do a lot of modeling and he was my boyfriend and I don't feel that was a valid reason to go through my personal property and that I felt he was taking it to far by accusing me of being an escort. He told me once again that he could do this and that he didn't need my permission and that I had no idea of the high tech devices that they had in there that would make the average person crazy if they knew what they could do.

[...]

I visit my cousins in Canada with my wife and children once in a while with my automobile. Every time I cross the American border to return to my home in Rochester, New York I get detained for 4 plus hours. Four to Five officials come to my car and they lead my family and I to the border. They lock my family and I in a room for hours. Also an official always comes from Buffalo to question me. They make me fill out an information sheet they go through my children's and wife's cell phones, laptop, and purses. After having all of our possessions and information, they still take 4 plus hours to release us.

[...]

My laptop was detained by CBP officer March 13th at Denver Airport. This was the second time in a row I was subjected to additional screening and talking as officer described it. They told me the reason was, because we have had problems with other people with J2 Visa. Is this REALLY a valid reason to detain my personal items, because CBP has problems with someone else? DHS gave my laptop back to my wife. After demanding it they gave her a receipt that shows EIGHT persons have been handling my personal laptop computer and external hard drive. They told at the same time that all my files were copied and to be reviewed.

[...]

During the complainants visit of the site of a historical monument, a worker asked complainant if he would like to leave his bag in the care of the museum workers. When complainant returned for the bag, the FBI had seized and placed all of complainants belongings across tables. FBI questioned complainant for a couple of hours and scanned and shipped his laptop to the FBI office in long Beach. Complainant has experienced difficulties flying internationally and even domestically since this incident… Upon return to the United States, the DHS questioned the complainant at LAX because they thought complainant was the owner of his brothers store. Complainants brother was arrested for possession and selling counterfeit merchandise in April 2010… The LAX DHS searched through complainants computer,phones, and other belongings for approximately 5 to 6 hours.

For the most part, DHS complaints are as effective as shouting into the void. Until 2015, there were no redress options available to citizens receiving extra screening or banned from flying. A series of lawsuits finally forced the DHS to at least tell affected travelers they were forbidden from traveling, but the agency still relies on court decisions saying almost all rights are waived within 100 miles of US borders. Those who aren't US citizens are even more screwed.

There have been a handful of legislative efforts to force DHS, CBP, and TSA to limit intrusive searches of electronic devices, but so far nothing has landed on the president's desk. As of now, DHS components barely have to conjure up reasonable suspicion to search devices' contents, and little more than that to seize these items indefinitely.

This is the status quo -- or at least would be if it had remained in stasis since 2001. But it constantly appears to be getting worse. And there won't be any improvement for the next four years at least. This administration treats foreign citizens as criminals and Trump's DOJ has made "securing the borders" one of its priorities. Carrying out this objective hasn't been left to smarter processes or better use of intelligence, but rather taken the form of hyper-aggressive enforcement and further diminishing of rights near our nation's borders.

Filed Under: border patrol, customs, device searches, dhs, homeland security, privacy

Canadian Courts Edging Towards A Warrant Requirement For Device Searches At Borders

from the putting-it-a-step-ahead-of-the-Land-of-the-Free dept

The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it?

Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant.

[S]ection 99(1)(a) of the Customs Act… gives border officers the power to, "at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts."

According to the government, this means smartphones, tablets, and laptops should be treated as "containers," with the "entire lives" stored within being nothing more than items in a box. The Canadian government has chosen to equate smartphones with briefcases, arguing the incredible amount of personal information stored on phones is just a stack of papers. It's not much different than the arguments made on this side of the border, where the government has equated smartphones to pants pockets or address books, even though smartphones contain boxes full of documents (metaphorically) -- often far more information than anyone actually keeps physically in their homes.

Border security is a bit different than regular law enforcement. Law enforcement is able to empty the pockets of detainees and make limited searches of backpacks, luggage, etc. for officer safety reasons -- mainly to prevent overlooking a weapon that could be used against them. This analogy fails when it's a smartphone, which can't be used as a weapon. Outdated analogies are part of the reason the US Supreme Court erected a warrant requirement for cellphone searches. Canadian courts appear to be headed in the same direction, but the border location of these searches complicates matters.

Unlike a briefcase or a filing cabinet, judges have found, a smartphone can contain "immense amounts of information" that touch a person's "biographical core."

They've acknowledged that laptops create detailed logs and trails of data that can be used to retrace a person's steps in ways that physical documents can't.

And lawyers have successfully argued that smartphones and laptops, far from being static stores of information, are in fact portals to the near-limitless volumes of data stored in the cloud — from social media profiles to email accounts and file-sharing apps.

It was in this context that a Manitoba provincial court judge last year made a significant ruling: just as Section 8 of the Charter of Rights and Freedoms protects Canadians from unreasonable search and seizure, that right should also apply at the border when an officer asks to search your smartphone or laptop.

If this decision is upheld, there would be a warrant requirement for cellphone searches, even at the border. This would place Canada ahead of the US in terms of privacy protections. While there is a warrant requirement in place for cellphone searches of arrestees, courts in the US have held national security priorities trump the Fourth Amendment at the border. In response, there's been a surge in the number of devices searched without a warrant, jumping from 5,000 to nearly 20,000 from 2015 to 2016 -- and nearly 5,000 PER MONTH have been searched so far this year.

And while all the discussion about warrantless device searches at the border tends to revolve around national security, three of the four cases seeking to challenge the Canadian government's stance on device searches deal with child porn. The fourth involves drug trafficking. Not exactly as advertised when pitched to the public. Cases where privacy protections would have demanded a warrant have been exempted thanks solely to the physical location of the search.

Filed Under: borders, canada, device searches, privcy, warrants

DHS, CBP Admit They Have No Legal Authority To Access Americans' Social Media Accounts

from the CBP-reminded-of-this-2-months-after-Wyden's-letter dept

Since at least 2009, the DHS has asserted a legal right to copy/search the contents of anyone's electronic devices at the border. Its privacy assessment said no one has much privacy, at least not near US borders. Building on years of judicial national security deference, the DHS has recently expanded its searches of electronic devices, eliminating most of its adherence to the Fourth Amendment in the process. If your devices wander into the country's Constitution-free zones, you can expect to suffer diminished expectations of privacy.

Noting that border searches of electronic devices were increasing exponentially (more searches in February 2017 alone than in all of 2015), Senator Ron Wyden did two things: introduced a bill creating a warrant requirement for border electronic device searches and asked the CBP (Customs and Border Protection) about its new demands for social media/email account passwords.

The DHS has responded [PDF] to Wyden's questions, and the answers are a bit surprising.

U.S. border officers aren't allowed to look at any data stored only in the "cloud" — including social media data — when they search U.S. travelers' phones, Customs and Border Protection acknowledged in a letter obtained Wednesday by NBC News.

The letter (PDF), sent in response to inquiries by Sen. Ron Wyden, D-Ore., and verified by Wyden's office, not only states that CBP doesn't search data stored only with remote cloud services, but also — apparently for the first time — declares that it doesn't have that authority in the first place.

This admission about a lack of legal authority contradicts the assertions made in its 2009 Privacy Impact Assessment, which placed CBP agent hunches above anything resembling reasonable suspicion or probable cause. But the answer aren't quite as clear-cut as it might appear from the NBC New summation.

With or without legal authority, the CBP is still performing searches of thousands of devices. Returning US citizens aren't exempted from these searches. They are often free to go, even if their devices might need to be left behind so the CBP can search/copy the device's contents. This may be done without reasonable suspicion because, as the letter puts it, any device might hold evidence of criminal activity (terrorism, smuggling, and child porn are specifically named).

What the CBP cannot do -- at least according to this letter -- is retrieve information and data not stored on the phone itself. But this would only prevent CBP officers from accessing cloud-based storage. Much of the information contained in email and social media accounts is not stored locally, but there's no practical way to separate local/cloud data when officers have access to the entire device. The letter appears to indicate officers need to restrict their searches to SMS messages, call logs, and photos/videos stored on the device.

How this operates in practice is another matter. The letter states CBP cannot demand passwords/pins from American travelers, but points out this may result in their electronics being detained indefinitely even as the citizens themselves are free to go. It says CBP officers have been instructed to stay away from social media/email accounts, but the April 2017 "reminder" appears to be the direct result of Wyden's probing questions, which were sent to the DHS at the end of February. What CBP was doing before the senator started asking questions is anyone's guess, but anecdotal evidence suggests CBP is treating US citizens as badly as it does foreign visitors.

What isn't in the letter is a direct response to Wyden's question about the number of US citizens subjected to these intrusive searches. The DHS claims not to have this information on hand but has promised to turn over some data later this year.

In the meantime, American citizens are receiving only slightly better treatment than arriving foreigners. Assertion of rights are the border will often be taken as unprompted admission of guilt. While the CBP may not have a legal basis to demand access to social media accounts, it does appear its demands for access to people's phones isn't stifled by many legal hurdles. Considering most phones/laptops contain social media account info, it's up to Americans to believe the CBP isn't accessing data it's been told to stay away from.

Filed Under: 4th amendment, cbp, cloud, device searches, dhs, laptop searches, local storage, privacy

Phone Searches Now Default Mode At The Border; More Searches Last Month Than In All Of 2015

from the [Oprah-voice]-YOU'RE-GETTING-A-PHONE-SEARCH!-AND-YOU'RE-GETTING-A-PHONE dept

The Constitution -- which has always been malleable when national security interests are in play -- simply no longer applies at our nation's borders. Despite the Supreme Court's finding that cell phone searches require warrants, the DHS and CBP have interpreted this to mean it doesn't apply to searches of devices entering/leaving the country.

For the past 15 years, the government has won 9/10 constitutional-violation edge cases if they occurred within 100 miles of our borders -- a no man's land colloquially referred to as the "Constitution-free zone." But the pace of device searches has increased exponentially over the last couple of years. The "border exception" is no longer viewed as an "exception" -- something to be deployed only when customs officers had strong suspicions about a person or their devices. Now, it's the rule, as NBC News reports.

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.

According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.

Given the current state of immigration policy, this will get a whole lot worse before it gets better… if it ever does. Expanding government power is easy. Contracting it is almost impossible.

In practical terms, boots-on-the-ground travelers are being subjected to intrusive searches just because there's nothing effectual in the law to prevent it. Asserting your rights at the border is a non-starter. You simply don't have any. No one's going to be playing Twenty Quasi-Relevant Questions with travelers hoping to luck into consent. Officers and agents are seizing and searching devices by force.

A couple who had traveled to Canada twice in a period of three days were subjected to invasive device searches both time. The second time much more force was applied to ensure compliance.

Three days later, they returned from another trip to Canada and were stopped again by CBP.

"One of the officers calls out to me and says, 'Hey, give me your phone,'" recalled Shibly. "And I said, 'No, because I already went through this.'"

The officer asked a second time..

Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend's face turn red as the officer's chokehold tightened.

Then they asked McCormick for her phone.

"I was not about to get tackled," she said. She handed it over.

The coercion doesn't have to be a chokehold. It can just be the fact that government agents stand between you and your home and aren't willing to let you get back to the part of the country where your rights still exist without you handing over PINs and passwords.

On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport's lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel.

"They said if I need a lawyer, then I must be guilty of something," said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.

This is how certain government agents and agencies view constitutional rights: as luxuries only needed by people with something to hide. This mindset -- combined with Trump's "gloves off" approach to immigration enforcement -- helps explain the 5,000 device searches in the last 30 days. Device searches were always considered intrusive, despite the Constitution-free aspect of US borders. These were saved for criminal suspects and watchlisted travelers. Now, it's everyone.

The only good news to come out of this is a potential change in applicable laws. Sen. Ron Wyden is introducing a bill to create a warrant requirement for device searches at the border. Unfortunately, it's being introduced into an ecosystem now streamlined to reject affirmations of existing rights. If it somehow makes it to the President's desk without being amended into uselessness, there's almost zero chance Donald Trump won't veto it. Given the current makeup of Congress, it's unlikely there's enough support for a bill that might give "bad hombres" more rights to override a veto.

Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, dhs, privacy