CBP Employees Obtain New Accountability Shield With 'Security Agency' Designation

from the everyone's-pr dept

Our nation's border security agencies want to be national security agencies. ICE and CBP both made it clear they expected to be treated as Intelligence Community equals and given a seat at the grown-ups' surveillance table. They got their wish. Trump's "extreme vetting" wishes opened the door for the agencies' access to NSA collections late last year.

The CBP's addition to the long list of Intelligence Community agencies gives it another layer of opacity. As Ken Klippenstein reports for The Nation, being added to the OPM's list of exemptions will make it even more difficult to obtain information via FOIA requests.

On Friday, the Trump administration quietly designated the entire Customs and Border Protection (CBP) agency, which polices US borders, as a “Security Agency,” according to an internal memo obtained by The Nation.

This puts CBP on the same playing field as secretive agencies like the FBI, DEA, and ATF. While ostensibly only concerned with border protection, the CBP's reach has been extended by its access to NSA collections and its personnel more insulated from accountability by this designation.

The memo states: “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

Every CBP employee is now shielded from public scrutiny, no matter how much "security" work they're actually involved in. The memo obtained by The Nation came from a CBP contractor who blew the whistle on this bullshit designation. According to the unnamed source, they came forward to inform the public about an "absurd" designation that gives CBP employees a new layer of opacity they haven't earned.

The memo says this new designation is a reaction to supposed "doxing" of CBP employees via a Twitter account that may have been run by an OPM employee. But it wasn't really "doxing." The information released was pulled from publicly-accessible OPM databases. If this is the case, this doesn't seem to justify unilaterally declaring CBP employees to be more equal than other federal employees not fortunate enough to work for one tasked with bringing President Trump's anti-immigration fantasies to life.

CBP employees aren't special. And they're only "security" personnel in the loosest sense of the word. Just because they're involved in border security doesn't mean any exposure of their personal info would result in decreased employee safety or harm intelligence gathering. For that matter, the CBP isn't really in the intelligence gathering business and it's not known for operating extensive investigations utilizing undercover personnel who could suffer from being "outed" by publicly-available info. This is just opacity creep -- one that spreads from agency to agency like black mold. And it will make holding the agency accountable for its actions even more difficult when the public isn't able to pinpoint who's behind the latest string of abuses.

Filed Under: accountability, cbp, foia, intelligence agency, law enforcement, transparency

Like Clockwork, ICE Stops Sports Fans From Advertising Their Favorite Teams For Less Than Full Price

from the this-is-so-dumb dept

Two things that happen, like clockwork, every Super Bowl? Bogus completely fabricated claims that sex trafficking increases whereever the Super Bowl is held, and ICE making bullshit seizures of "counterfeit" sporting goods. This year, both Associated Press and the local Miami Herald ran bogus stories claiming that sex trafficking ramps up around the Super Bowl -- a claim that every single year is debunked and unproven. Reason always does a good job debunking those claims. so I'll just point you there for now.

On the "counterfeits" front, we've got a silly press release from ICE and plenty of news sources, like Fox News, gleefully cheering on the fact that fans won't be able to provide free advertising to their favorite sports teams without paying the monopoly price set by the NFL. We've covered just how messed up these ICE raids are in the past, but just as a refresher: it's completely fucked up that it's somehow illegal for people to make or sell unauthorized sports wear.

It used to not be this way. It used to be that if you made your own fan ware, sports teams actually liked the fact that you were advertising their brand to the world for free. And then some trademark lawyers came along and said "hey, but we could sell people the right to advertise our stuff for us" and began going to court to stop people from promoting their teams without first paying. An astounding number of people buy into this ridiculous myth -- but think about it: why should people have to pay monopoly prices to help advertise your sports team? It makes no sense at all.

What makes even less sense is the idea that ICE should be spending any time at all seizing goods that would allow fans to provide free advertising at slightly cheaper prices. How is this in the interest of Immigration & Customs Enforcement? I mean, if it means they're not rounding up and kicking out people who have lived here their whole lives, I guess I'd rather them wasting their time on this, but somehow I get the feeling it's not mutually exclusive. Anyway, the real bullshit here is that ICE -- which does this before every single major sporting event -- actually wants to pretend that it's somehow doing a good thing for the world, rather than doing this because they know every single news org wants some dumb story with a "big sports event" hook, and so they know they'll get press.

U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) announced Thursday the seizure of more than 176,000 counterfeit sports-related items, worth an estimated $123 million manufacturer's suggested retail price (MSRP), through a collaborative enforcement operation targeting international shipments of counterfeit merchandise into the United States.

Also, note the $123 million. To their credit, at least the press release admits that that's the MSRP price. That's not the real price by any stretch of the imagination. ICE did not seize $123 million worth of goods. But, of course, the news reports leave out that detail, and just run with the $123 million number.

Even worse, ICE pretends that this is "protecting" fans, rather than actually fucking over the fans:

“Operation Team Player remains one of the most important national initiatives for protecting sports fans from the sale of counterfeit products and counterfeit tickets. The joint efforts of the NFL, the IPR Center, HSI, CBP, and Miami area law enforcement have helped ensure that Super Bowl LIV remains an authentic and outstanding experience for our fans,” said NFL Vice President of Legal Affairs, Dolores DiBella. “The NFL is committed to supporting these anti-counterfeiting and consumer protection measures, and extends its gratitude for the year-round support of law enforcement partners who drove the success of Operation Team Player.”

It's not consumer protection. You're just forcing your fans to pay more to give you advertising. Meanwhile, reports have the NFL making somewhere in the range of $15 billion last year (some say the number is even higher). Why are they having to use your tax dollars to force the prices of their merchandise to be jacked up even more?

Filed Under: advertising, cbp, counterfeit, ice, licensing, sports, superbowl, trademark
Companies: nfl

DHS Move Ahead With Plan To Harvest DNA Samples From Nearly Everyone Detained By ICE And CBP

from the don't-forget-to-pack-your-saliva dept

Looks like everyone roaming across the board is going to become a source of info for the US government. The DHS has already rolled out facial recognition at international airports and additional biometric collections elsewhere. The Fourth Amendment's near-nonexistence at the border has led to a steadily-increasing number of invasive device searches. Visa applicants and other long-term visitors are being forced to turn over social media information (including passwords) during the application process.

Now, the DHS is hoping to collect DNA from nearly every immigrant it has in custody. The DHS first pitched this idea back in October, hoping to strike the lone exemption keeping it from collecting samples from the hundreds of thousands of people crossing southern borders every year.

The previous administration said it simply wasn't feasible to collect DNA from every detainee, especially those rounded up near southern borders. This administration says it's no longer a logistical problem, so it should be allowed to collect it from everyone detained by ICE or the CBP.

[S]ubsequent developments have resulted in fundamental changes in the cost and ease of DNA-sample collection. DNA-sample collection from persons taken into or held in custody is no longer a novelty. Rather, pursuant to the mandate of § 28.12(b), it is now carried out as a routine booking measure, parallel to fingerprinting, by Federal agencies on a government-wide basis.

The rule change removes the logistics exemption, effectively removing the power to make judgment calls on DNA collection from the DHS and placing it in the hands of the Attorney General. Presumably, Bill Barr will be far less likely to exempt any immigrants from this DNA collection, no matter how much of a burden it places on the agencies performing the collection.

The change is now in effect and the DHS is moving forward with its expanded DNA collection.

The U.S. government on Monday launched a pilot program to collect DNA from people in immigration custody and submit it to the FBI, with plans to expand nationwide.

In Detroit, people as young as 14 will be subject to DNA collection.

The information would go into a massive criminal database run by the FBI, where it would be held indefinitely. A memo outlining the program published Monday by the Department of Homeland Security said U.S. citizens and permanent residents holding a “green card” who are detained could be subject to DNA testing, as well as asylum seekers and people entering the country without authorization. Refusing to submit DNA could lead to a misdemeanor criminal charge, the document said.

It will take more than a detention to collect DNA from US persons and lawful permanent residents, so that's not an entirely accurate synopsis of the DHS's memo [PDF]. US persons and lawful residents will have to be under arrest or facing criminal charges to be subjected to the DNA collection.

But it does change the scope of the collection, which will now include as many immigrants as possible, even if they're crossing at heavily-trafficked areas of the border. It also means the DHS is creating additional logistical challenges under the theory that filling an FBI database with non-criminals will make it easier to apprehend criminals.

The DHS expects this to cost an additional $3-5 million a year, including the $5.38 the FBI spends for each DNA kit. Processing is another matter -- the DHS did not address this cost in its proposal other than saying the FBI "won't charge" the DHS for processing. This is an especially meaningless assurance. Taxpayers will still be paying for the gratis processing the FBI will be performing. There will just be less paperwork involved.

Even if it's cost-effective, it's still mostly useless. Most of the DNA collected will be linked to people who did nothing more than attempt to cross a border. It puts more needles in the FBI's haystack under the theory it might result in the occasional apprehension of a dangerous individual. Even the DHS believes the collection won't do much to ensure the worst of the worst aren't returned to general population.

The DHS memo acknowledged that the DNA its agents collect may not be immediately useful. Agents plan to take saliva swabs of detained people, then mail them to the FBI. By the time the results are processed, the memo said, the people in question may have already been released, deported or transferred to another federal agency.

Useful or not, the collected DNA belongs to the US government for life. The government has authorized DNA collection on detainees as young as 14 and can hold onto the info indefinitely. In practical terms, this means CBP and ICE will be taking DNA samples from children because agents generally decide how old immigrant minors are, rather than relying on produced documents or statements from detainees and family members. If they really want the sample, they'll just declare someone to be 14 years old.

Maybe the ultimate goal is to make coming to America just not worth the hassle. The government's thirst for data is never quenched. Every so often the public may make it take a step back from the fire hose, but it will always come back for more.

Filed Under: cbp, dhs, dna samples, ice, privacy

DHS Wanted To Add US Citizens To The Long List Of People Subjected To Mandatory Face Scans At Airports... But Has Backed Down For Now

from the smile-like-you-want-to-travel,-citizen dept

We knew the DHS would get to this point eventually. Since the beginning of its biometric scanning program rollout, the DHS has planned on adding US citizens to the list of people forced to trade their faces for air travel privileges. So far, the program has been limited to suspicious foreigners (which is all of them, including those here on visas), but a recent filing -- caught by Zack Whittaker at TechCrunch -- says flying in the United States would soon require adding yourself to the government's facial recognition databases.

Homeland Security wants to expand facial recognition checks for travelers arriving to and departing from the U.S. to also include citizens, which had previously been exempt from the mandatory checks.

In a filing, the department has proposed that all travelers, and not just foreign nationals or visitors, will have to complete a facial recognition check before they are allowed to enter the U.S., but also to leave the country.

The Department of Homeland Security's excuse for subjecting US citizens to mandatory face scans is the homeland's security. Here's the DHS in its own words:

To facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition and to help prevent persons attempting to fraudulently use U.S. travel documents and identify criminals and known or suspected terrorists, DHS is proposing to amend the regulations to provide that all travelers, including U.S. citizens, may be required to be photographed upon entry and/or departure.

"May be required" should actually read "will be required." The DHS's privacy assessment of its biometric scanning efforts noted that opting out of biometric scanning means never leaving the country:

[T]he only way for an individual to ensure he or she is not subject to collection of biometric information when traveling internationally is to refrain from traveling…

The government would like to get to know its legal residents better, it would appear. It hopes to be able to put faces to names with an acceptable degree of accuracy. What's acceptable to the DHS probably won't be acceptable to travelers, but travelers aren't making the rules. Travelers are only subjected to them.

The only thing preventing this program from becoming China is the DHS's inefficiency -- or a massive public outcry. After this story started making news this week, DHS suddenly decided to put it on pause for the time being. Of course, it still has until next year to roll out biometric scanning to the 20 largest airports in the country. It's been working on this for a few years now and has yet to roll this out completely to its test markets. Whatever gains are made in facial recognition accuracy will hopefully arrive in time to keep the lowest bidders from endangering the freedoms of travelers just looking to exit or enter their home country. Even if DHS is backing down on scanning Americans, it's not clear it's backing down on its overall commitment to facial scanning technology.

The weak promise the DHS gave months ago about keeping Americans out of this was quickly broken to better facilitate the treatment of citizens and visa holders as terrorists every time they board a flight that crosses US borders -- so I wouldn't put much faith in its latest promise not to go there any more. The DHS and its large adult son, the TSA, have done very little to make traveling more secure. But when there's billions of budgetary dollars at stake, you can't be too careful. The money must be spent and those who firmly believe something must be done to secure the nation will see some things being done. Whatever collateral damage this does to Americans and their trust in the federal government is apparently acceptable.

Filed Under: biometrics, cbp, dhs, facial recognition, facial scanning, tsa

Federal Court Says ICE, CBP's Suspicionless Searches Of Electronic Devices Is Unconstitutional

from the warrant-requirement-in-our-lifetime? dept

There's a bit more Constitution in the "Constitution-free zone." A federal court in Massachusetts has ruled [PDF] border agents can no longer perform suspicionless device searches. This ruling aligns itself with the decision handed down by the Ninth Circuit Court of Appeals earlier this year. If the government wants to dig into travelers' phones and laptops without a warrant, it needs to show it believes contraband will be located on the seized device.

It's not quite a warrant requirement, which would align it with the Supreme Court's Riley decision. No court has been willing to apply this decision at the border, but requiring reasonable suspicion is a step in the right direction.

The lawsuit was filed by 11 travelers whose devices were seized and searched by CBP and ICE agents. For some of the plaintiffs -- represented by the ACLU -- this happened multiple times. The court provides a snapshot of the intrusions central to the group complaint.

Without recounting the nature and circumstances of all of the Plaintiffs’ searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs. During the second search, which was of her daughter’s phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad’s phone during her earlier search but was not present in the second search.

[Plaintiff Zainab] Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. Merchant observed a CBP officer viewing communications between her and her lawyer. [Jeremie] Dupin’s phone contained information from his work as a journalist, while [Sidd] Bikkannavar’s phone was a work phone officially owned by NASA’s Jet Propulsion Laboratory, and containing information from his work there.

The government tried to get out of this lawsuit by claiming the plaintiffs couldn't show they had suffered harm or would continue to suffer harm if these agencies weren't prevented from performing suspicionless searches. The court says it really can't take the government's word for this because the government continued to search the plaintiffs' devices after this litigation commenced.

That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs’ future plans for international travel.

The court agrees the government has a compelling interest to secure our borders. That's why there's no warrant requirement for device searches, despite the Riley decision. But, while the expectation of privacy may be reduced near the nation's borders, it doesn't disappear completely.

Agencies that patrol the borders are there to prevent illegal immigration and the transport of contraband into the country. That's where the line is drawn by this federal court: if the government wants to search someone's device, it needs to show it will find that contraband on the searched device. Searching for evidence of criminal activity simply isn't allowed -- not without a warrant.

Undisputedly, interdiction of inadmissible persons and goods are legitimate governmental interests at the border. Plaintiffs do not dispute that CBP and ICE officers have the unenviable task of screening “[o]ver one million travelers per day [who] go through U.S. ports of entry,” and although they have some information about travelers (particularly those traveling by air and otherwise through agency databases), they have little time to process it. Even so, the record that recites “searches of electronic devices at the border have successfully uncovered threats to national security, information pertaining to terrorism, illegal activities, contraband, and the inadmissibility of people and things,” without explanation of the frequency, nature of same or the manner of the discovery of same, is not a strong counterweight to the intrusion on personal privacy evidenced by such searches.

The court quotes from Riley to drive home the point about the privacy expectations of today's laptops, tablets, and cellphones -- all of which contain far more than the contents of a car trunk or luggage.

Defendants… point to the broad latitude border officials have to search physical items, but comparisons between searches for digital evidence or contraband and searches of other physical items or travelers themselves are inapposite. Riley recognized as much in responding to the government’s argument that officers could search a cell phone if there were a sufficiently similar non-digital analogue that officers could have searched by noting that “the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.

[...]

Unlike a vehicle, vessel or even a home at the border, see 19 U.S.C. §§ 482, 1582, 1595(a)(2) (regarding inspections of vessels and homes), “the data stored on a cell phone is distinguished from physical records by quantity alone, [but] certain types of data are also qualitatively different.” It can “reveal an individual's private interests or concerns” as evidenced by internet search and browsing history, “reveal where a person has been” through historic location information, and reveal which files a person created, accessed and when he or she did so through metadata. The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.

The court says any search of a device beyond "a brief look reserved to determining whether the device is owned by the person carrying it across the border" requires reasonable suspicion. It does not give a free pass to "basic" searches (i.e.,non-forensic searches). As the court notes, CBP and ICE's definition of a "basic" search includes asking a person about their photos, emails, and contacts, asking one of the plaintiffs about their blog posts, and routinely removing the devices to perform "basic" device searches out of view of the plaintiffs. There's nothing "basic" about these searches and the government will need reasonable suspicion to engage in them in the future.

The court's ruling says ICE and CBP's border device search policies are unconstitutional as presently defined and deployed. Reasonable suspicion is the new standard for device searches in this jurisdiction.

Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, reasonable suspicion, suspicionless searches

CBP Now Has Access To NSA, CIA Collections

from the fantastic-news-for-authoritarians dept

Welcome to the Intelligence Community, CBP!

Pushing further toward its goal of “extreme vetting,” the Trump administration is creating a new center in suburban Virginia that will allow immigration agents to access, for the first time, the sprawling array of information scooped up by America’s intelligence agencies, from phone calls intercepted by the National Security Agency to material gathered by the CIA’s spies overseas to tips from informants in Central America.

CBP and ICE have been pushing for this for several months now, nudged along by an administration that has decided to treat immigration as a national emergency rather than an explicit endorsement of the American Dream™. Now that immigrants crossing the border are "threats" rather than potential contributing American citizens, CBP has been given access to intelligence gathered by foreign-facing intelligence agencies.

"National security = border security" says our nation's president, his administration, and his revolving door of short-lived agency heads. This greatly overstates the reality of the situation. Multiple studies have shown immigrants tend to be less dangerous than natural born citizens, but the Man Up Top still believes our last president was a Kenyan interloper so ¯\_(ツ)_/¯.

Multiple agencies have access to data collected by intelligence agencies. The FBI in particular loves the backdoor searches these supposedly foreign-facing collections offer. Working backwards from overseas connections, the FBI can engage in secondhand domestic surveillance, all without troubling the Constitution enough for courts or Congress to shut this bullshit down.

Add CBP to that list. When not harassing foreigners because they're foreigners, the CBP can (theoretically but come on, how long until some abuse is exposed?) continue its surveillance of domestic journalists, lawyers, and activists, all without worrying too much about this snooping being exposed in court proceedings. Once you tap into natsec pipelines, you have a built-in STFU when people start asking questions.

This snooping will be added to the list of things CBP gets away with due to its border/national security tasking. The Constitution is barely applied at the border, so things the CBP does won't be subjected to the strictest scrutiny.

All of this alone would be reason to worry. But as Melissa del Bosque's report for ProPublica points out, the volatility of this particular administration adds additional concerns to the mix. Oversight is already kind of a joke. Direct control of this access is going to be up in the air until at least 2021.

“You have an acting secretary who could be gone in an hour by tweet,” said Carrie Cordero, a senior fellow with the Washington-based bipartisan think tank Center for a New American Security. “The general counsel for DHS, who ultimately has the responsibility for making sure that oversight rules are followed, was just fired. So, there’s real questions as to what kind of management decisions are being made.”

Laying the groundwork now ensures this will be perfectly lawful and normal going forward. It will take more than a regime change to claw back CBP's access to IC collections once they've been codified. Congress had a line drawn between domestic law enforcement agencies and foreign-facing intelligence agencies, but that line has been blurred over the past 18 years. The FBI has rebranded itself as a counterterrorist agency and other law enforcement entities have insisted their drug war is a global effort that shouldn't be limited by firewalls meant to protect Americans from domestic snooping.

President Trump, however, has decided protecting Americans doesn't make America great.

Trump’s memo requires even the most sensitive intelligence agencies, including the NSA and the CIA, to share classified intelligence with the CBP-run center. It also requires the center to expand vetting beyond counterterrorism into new areas such as transnational crime and counterintelligence.

If you think CBP won't abuse its access to expand its questionable targeting of journalists, activists, and immigration lawyers, you haven't been paying attention to the last six years of leaks and FOIA documents. The NSA has abused its collections. The FBI has abused the NSA's collections. The CIA has abused pretty much everything it's touched, domestic or foreign. And the CBP has abused its powers to perform surveillance of people engaged in protected or privileged communications. This isn't good news for anyone.

Filed Under: cbp, cia, intelligence data, law enforcement, nsa, surveillance

CBP And Local Law Enforcement Are Mixing And Matching Surveillance Gear To Skirt Already-Minimal Constitutional Protections

from the this-land-is-my-land-this-land-is[needle-scratch] dept

The border is expanding. What normal people would consider a border -- the physical and political barriers between countries, sometimes protected by walls and checkpoints -- isn't what the US government considers a "border." In this country, the "border" covers 100 miles inland from any border crossing. And that's not just border border crossings. That's any international airport as well.

Consequently, the "border" encompasses a large percentage of the US population. This isn't just a weird fact. It's actually means there's a whole lot less "America" than people think. The rights enshrined in the Constitution just don't mean as much at the border, where courts and Congress have given the federal government permission to engage in suspicionless searches and warrantless detentions.

But that's not the only threat to personal liberties. More than CBP personnel wander far inland to perform border security work. The CBP's drones -- an expensive waste of time according to its Inspector General -- have been lent out to a number of local law enforcement agencies, turning the CBP's eyes in the sky into everyone's eyes in the sky… even if these agencies aren't specifically in the border security business.

And it's not just drones. It's everything. Law enforcement agencies near the border are deploying a vast array of surveillance technology. The rules are already pretty much broken in the "Constitution-free zone," so why not make the most of it? The EFF and a group of journalism students have been tracking surveillance use by law enforcement agencies in the Southwest. The results of this investigation, reported on here by Sidney Fussell for The Atlantic, are more than a little alarming.

In southwestern communities near the U.S.-Mexico border, the team recorded nearly 230 instances of local police deploying advanced technology: facial-recognition software, cellphone-tracking “sting ray” towers, real-time crime centers, license-plate cameras, gunshot-detecting acoustic-surveillance devices, drones, and spy planes. These devices reveal where people travel, as well as whom they call, text, and visit. The tools can also identify people without their knowledge or consent.

There are drones overheard and nearly everything else imaginable on the ground. If you live anywhere near a border, chances are you've been swept up in more than one database. The government -- all levels of it -- has a good idea how a lot of people it doesn't suspect of any wrongdoing live their lives.

With this plethora of spy gear comes ample opportunity for screw-ups. Facial recognition tech is unproven and unreliable. Stingrays collect it all and let the government sort it out, all while possibly disrupting phone service. ALPRs generate maps of people's movements while serving up the occasional false positive. And an indefinite amount of cameras allow law enforcement personnel to draw faulty inferences about activities being witnessed miles away through a magic box that provides moving pictures but no context.

A mesh network of surveillance gear operated by dozens of unrelated agencies allows for a certain Constitutional fluidity, as Fussell points out.

Mixing and matching technology in this way provides law enforcement with certain loopholes. Police need a warrant before placing a GPS tracking device on your car, for example, but not for querying an LPR database for a list of all your locations.

The CBP may be forbidden from searching certain databases, but it can always ask those with permission and access at other agencies to perform proxy searches. ICE does this all the time, despite its access to vast amounts of public and private information. If local agencies don't have the tech or jurisdiction for certain activities, they can ask CBP to return the favor. Coordination between federal and local law enforcement sure sounds like a good idea, but it can often be a way to bypass restrictions meant to protect citizens from their government.

Even when the rules are clear and agencies aren't using each other to skirt them, the rules are still broken. The Texas Department of Public Safety has used CBP drones to surveil unlikely targets like hospitals and community centers, using the excuse it was looking for tunnels used by drug smugglers. The CBP trespassed on a rancher's property to install its surveillance cameras. And the CBP is forbidden from sending its drones into Mexican airspace, but it still does regularly.

The steady erosion of rights near the border is deliberate. Every new tech toy is deployed far ahead of explicit permission or privacy impact paperwork. Many Constitutional violations are waved away with invocations of national security concerns. The federal government frequently argues in court the diminished rights near the border should be further diminished in the interest of public safety. The only question seems to be whether something can be done. Rarely does anyone ask if it should.

Filed Under: 4th amendment, border exception, border security, cbp, law enforcement, surveillance

EFF Sues CBP, ICE Over Refusal To Hand Over Its GPS Tracking Device Policies

from the Garmins-in-boxes-marked-'CLASSIFIED' dept

Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.

The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.

The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.

During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.

If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.

According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.

It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.

The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.

The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.

The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

Filed Under: cbp, foia, gps, ice, policies, public records, tracking, transparency
Companies: eff

CBP, DHS Using Quasi-Scientific Guesswork To Turn Adult Immigrants Into Minors

from the and-vice-versa dept

Our nation's immigration agencies wield a considerable amount of power. So much power, in fact, that they're free to dump incoming immigrants off the space-time continuum at will. If a CBP officer decides a person isn't the age they say they are, they can alter the person's age so it matches the officer's beliefs.

How does the CBP accomplish this neat little trick? Well, oddly, it involves X-rays. A recent episode of This American Life details the surreal nature of this CBP-induced time warp -- one it inflicted (repeatedly!) on a 19-year-old Hmong woman coming to the United States to reunite with her fiance.

Yong Xiong was questioned by Customs officers at the Chicago airport. The CBP officer thought she was being trafficked and didn't believe the birth date on her passport. After a round of questioning meant to determine whether or not Yong was being trafficked, the CBP officer arrived at the conclusion she was, despite the officer marking "No" on ten of the eleven trafficking indicators.

So, how does the CBP try to determine someone's age when officers don't believe the person or the documents in front of them? They call in a dentist. Yong's teeth were x-rayed to determine her age. This may involve science on the front end, but the back end is mainly educated guesswork.

From This American Life's Nadia Reiman:

The dentist took the X-ray. No one would talk to me on the record about this, but because it's the government, there is a massive paper trail. And not just in Yong's case. I'm going to go deep on these tooth X-rays for a second, so bear with me. They're used in all kinds of immigration cases, not just trafficking. And a lot rides on the results. If you're under 18, you have more protections. You get put into a shelter instead of a detention center. It's harder to get deported.

But tooth X-rays are just not a very precise way to determine someone's age. The way it works is they measure how developed the roots of your molars are, and then based on that, the dentist can determine your age, but only within a range, usually around five years. So these X-rays can't tell you the difference between a 17-year-old and a 19-year-old. The same teeth might belong to a 15-year-old or a 20-year-old.

In Yong's case, the CBP was sure she was being trafficked. Since the officer already thought that, the CBP leaned toward the lower end of the dentist's estimate.

In the documents, the dentist writes, quote, "The range of possible ages is 14.76 to 19.56 years." In other words, it's totally plausible that Yong could be 19 as she's been saying.

Instead of accepting this as evidence that might back the birth date on Yong's passport, the CBP agent gave her a new birth date: January 1, 2000. This instantly turned Yong into a minor and the CBP placed her in a juvenile shelter. She continued to tell staff and counselors she was 19 and needed to head to Minneapolis to meet with her family and fiance. The staff told her they couldn't do anything about this because the paperwork said she's a minor.

This isn't true. They are able to make changes to these dates, but no one at this detention center was willing to do that. Well... they weren't willing to change her birth date to make her an adult again. Instead, as Yong approached her fake 18th birthday -- January 1, 2018 -- the DHS decided to make her even younger:

It turns out ORR [Office of Refugee Resettlement] resubmitted the X-rays of Yong's teeth to a second dentist who concluded Yong could be anywhere between 15 and 20 years old. After which, ORR did change her birth date. But they used the lowest end of the range possible. The documents say DHS, the agency that oversees everything related to immigration, told them to. Her new, new birth date is now September 1, 2002.

A wrist X-ray was performed to determine "bone age." The results said Yong was most likely 18. The doctor interpreting them for the DHS decided this simply wasn't true and issued a conclusion saying Yong is 15, but with "advanced bone age."

After 14 months in a juvenile detention center, Yong is finally released by the DHS… as a minor, into the custody of her aunt. A couple of weeks later, the DHS stated to her lawyer it would no longer "contest" the "contents" of her passport. The single contested "content" was Yong's true birth date. The US government graciously allowed Yong to become 22 again, after 14 months of treating her like a teenager.

Yong is not an isolated case. The DHS routinely uses wide-ranging estimates to arbitrarily assign birth dates to immigrants and asylum seekers. For whatever reason, CBP tends to add years to males and subtract them from females. This results in people like Yong being treated as minors for months or years. In other cases, it turns unaccompanied minors into adults and places them in adult detention facilities.

This report from The Conversation detailing the x-ray "aging" of two unaccompanied teens says CBP's reliance on this process is illegal.

Federal law dictates that X-rays in cases where adult age is not obvious be used only in concert with other methods, such as verification of documentation and interviews. This makes sense because X-rays only provide orienting information rather than a definitive answer.

The recent court cases demonstrate that ICE has broken the law by exclusively relying on X-rays for age determination, ruling that the teens be released back into ORR’s custody as minors. Are these cases isolated or illustrative of a bigger problem? A 2008 report by the Office of Homeland Security found that it was not only unclear how often ICE needed to resort to X-rays to assist with age determination, but unknown how common it was for them to rely solely on X-ray results. Without accurate numbers, there is no way to know how widespread the practice is or how to improve the process.

Nothing has improved since then. And part of the reason nothing has improved is that the same Congress that expressed concern about the DHS's reliance on X-rays to determine immigrants' ages pushed the DHS to continue to rely on the X-rays.

In 2007 and again in 2008, the House Appropriations Committee called on the Department of Homeland Security to stop relying on forensic testing of bones and teeth. But it was the Trafficking Victims Protection Reauthorization Act of 2008 that declared age determinations should take into account “multiple forms of evidence, including the non-exclusive use of radiographs.”

Apparently, the "non-exclusive" part of the law is being ignored. Nothing but an X-ray and a CBP officer's hunch turned 19-year-old Yong Xiong into a 17-year-old. And nothing but an X-ray made her even younger... even as she aged 14 months right in front of the government's eyes.

Filed Under: age detection, cbp, dentists, detention, immigration, minors, x-rays