Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings

from the muh-national-security dept

Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)

The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.

This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.

[...]

[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.

Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.

The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.

The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.

These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.

Filed Under: arizona, border patrol, cbp, first amendment, free speech, photographing border patrol

Rogue CBP Agent Decided To 'Drain The Swamp' By Tracking Down A Journalist To Sniff Out Her Sources

from the christ-what-an-asshole dept

The DOJ has decided it can safely threaten First Amendment protections, so long as it's done in the pursuit of leakers. The Trump Administration has leaked like no other, prompting AG Jeff Sessions to triple-up on former president Obama's war on whistleblowers. Omelets/eggs broken, I suppose, if the end goal is dialing back leaks to only the ones the administration approves of.

It's cool to target journalists' communications again. That's the general mood of the DOJ, which slapped itself on the wrist during Eric Holder's tenure for hoovering up AP journalists' communications, only to reverse course when the desire to prosecute leakers surpassed its desire to not look like a thuggish force of government oppression.

The indictment of Senate Intelligence Committee advisor James Wolfe contained a lot of journalists' communications and metadata obtained from several sources, including service providers these journalists used. This was disturbing enough, suggesting the new normal for leak investigations is targeting members of the press to work backwards to their anonymous sources.

But there's even more shadiness going on than is observable from that single indictment. A self-appointed freedom fighter with the unbelievable last name of Rambo was apparently trying to suss out journalist Ali Watkins' sources. (Watkins' email and communications data were subpoenaed during the Wolfe investigation.) The first hints that something weird and disturbing was going on behind the scenes was published by The Washington Post. It detailed the apparently rogue (and illegal) actions of a government employee prior to the delivery of the Wolfe indictment.

The actions of a Customs and Border Protection agent who confronted a reporter covering national security issues about her confidential sources are being examined by the CBP’s Office of Professional Responsibility, the agency said in a statement Tuesday.

The agent, Jeffrey A. Rambo, contacted journalist Ali Watkins last June as the Trump administration was ramping up its investigations of unauthorized leaks to reporters, and he identified himself as a government agent.

Rambo met with Watkins at a restaurant in Washington after initially contacting her by email. A reporter taking such a meeting with a potential source would not be unusual.

But after he arrived, Rambo said the administration was eager to investigate journalists and learn the identity of their confidential sources to stanch leaks of classified information. He questioned Watkins broadly about her reporting and how she developed information, according to the people familiar with the incident, who spoke on the condition of anonymity to discuss a sensitive matter.

The "examination" is now an official investigation, the New York Times reports. More details about Rambo's actions have surfaced, suggesting flagrant abuse of sensitive government databases for the purpose of tracking down Watkins and pressuring her to divulge her sources.

The agent, Jeffrey A. Rambo, who usually worked in the San Diego area, was temporarily assigned at the time to the National Targeting Center, a facility in Sterling, Va., operated by Customs and Border Protection that stores data on the travel of millions of Americans and foreigners. Such information is supposed to be used only under strict rules by immigration and law enforcement officials.

Now the Department of Homeland Security’s inspector general and investigators from the border agency are examining whether Mr. Rambo used the travel data improperly or illegally and whether anyone else was involved.

It doesn't appear anyone directed Rambo to meet with Watkins and attempt to discover the identities of her sources. From the statements given to the New York Times, it appears Rambo was simply a self-starter bursting with misdirected gumption.

It remains unclear whether Mr. Rambo handled or heard about an official F.B.I. request to the center for Mr. Wolfe’s travel records, and, if so, whether that led to the discovery that Ms. Watkins was his traveling companion. According to Ms. Watkins’s accounts, Mr. Rambo spoke with enthusiasm to her about Mr. Trump’s crackdown on leaks, telling her that “we’re finally going to be able to drain the swamp,” raising the possibility that he had searched the database for her records on his own initiative.

It really doesn't matter whether Rambo felt draining the swamp was his own personal mission or someone on the inside suggested he check the situation out. Either way, it's an abuse of Rambo's position and access. The DOJ started screwing the pooch with its demand for journalists' records and communications and Rambo came along to botch the job and clumsily bury the canine after performing a hit-and-run on his own career. This is scary stuff and it's not being helped by the anti-journalist attitude being fostered by the man at the top of the governmental food chain.

Filed Under: abuse of power, ali watkins, cbp, drain the swamp, james wolfe, jeffrey rambo, journalism, sources, yes his name is rambo

CBP Agrees To Hand Back Almost All Of The $58,000 It Stole From A 64-Year-Old Man At A Cleveland Airport

from the to-the-feds,-any-amount-of-cash-is-a-suspicious-amount-of-cash dept

A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings.

CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted.

It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal.

What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from.

Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money.

"They asked me some questions, which I could not understand as they spoke too quickly," according to Kazazi's declaration. "I asked them for an interpreter and asked to call my family, but they denied my request."

The CBP agents led Kazazi to a small windowless room and conducted multiple searches of him and his belongings, he said. According to Kazazi's declaration, the agents asked him to remove all of his clothing and gave him a blanket to cover the lower portion of his body. Kazazi said that a man wearing rubber gloves then "started searching different areas of my body."

After failing to find more cash hidden in the crevices of Kazazi's body, the CBP agents gave him a receipt for the money they were taking -- one with no dollar amount written in -- and handed out this fluff to the press when it came asking questions.

In a statement, a CBP spokesman said that "pursuant to an administrative search of Mr. Kazazi and his bags, TSA agents discovered artfully concealed U.S. currency. Mr. Kazazi provided inconsistent statements regarding the currency, had no verifiable source of income and possessed evidence of structuring activity," that is, making cash withdrawals of less than $10,000 to avoid reporting requirements.

The "artful concealment" was paper and the "inconsistent statements" can probably be chalked up to CBP's refusal to locate a translator. Cash spends better in foreign countries, especially those -- like Albania -- where banks aren't trusted and foreign currency preferable to the local version.

Following this seizure, the CBP then did nothing, apparently hoping the Kazazi family would never ask for the money back. It had 90 days to begin to process the forfeiture but it chose instead to give conflicting information to Kazazi (detailed in his son's declaration [PDF]) and push the family towards "settling" for only a portion of the funds seized.

The Kazazis chose to sue because, obviously, they don't trust the CBP to handle this honestly. First off, the CBP claims it took $57,330. Kazazi disputes this amount, stating he had $58,100 with him. The $770 difference may seem minimal, but it appears to another indicator of the CBP's untrustworthiness. According to Kazazi, he only took $100 bills. Therefore, a total of $57,330 is impossible. It almost looks as though the CBP took an unofficial service fee off the top before notifying the Kazazis of their right to dispute the forfeiture.

The Institute of Justice has stepped in to fight for Kazazis, like it has in many other asset forfeiture cases. As it points out in its lawsuit [PDF], CBP had until April 17 of this year to begin processing the forfeiture. It hasn't and federal law says unprocessed forfeitures that pass the 90-day expiration date must be returned in full to their owners.

Fortunately for Kazazi, this legal battle may be over already. Kazazi sued on May 31st. Following a conference with a district judge, the CBP has decided to return all of the money it took. Well, almost all of it.

The minutes of the proceeding says that customs officials told the judge that "they were beginning the process of tendering a check to Petitioner Kazazi in the amount of $57,330 plus interest."

There will be a little more legal wrangling because Kazazi wants back every cent the government took: $58,100. A bench trial has been scheduled, but it will be December of this year before his case is heard.

This whole debacle shows two things: asset forfeiture ain't dead yet, despite its high-profile reputation for being thinly-disguised theft. And it shows the government can be forced to do the right thing without having to undertake a long and expensive legal battle. The turning point here appears to be plenty of negative coverage from the press, rather than the legal filing. But the lawsuit helps, as it makes it crystal clear the CBP is violating federal law by holding onto it past the 90-day deadline for processing.

Filed Under: asset forfeiture, cash, cbp, civil asset forfeiture, rustem kazazi, theft

Court Has No Problem With Multiple Invasive Probings In Search Of Drugs That Didn't Exist

from the 'Your-Bodies,-Ourselves,'-by-CBP-and-El-Paso-County-healthcare-professio dept

If a government employee suspects you might be carrying drugs, be prepared to engage in a nonconsensual, highly-intimate relationship with the feds and their helpers. A New Mexico resident suspected of carrying drugs was subjected to multiple anal probings and enemas before law enforcement finally decided he wasn't actually carrying any drugs on him (or in him). An 18-year-old Arizona woman was subjected to vaginal and anal probing when attempting to return from a short trip to Nogales, Mexico. Again, no drugs were found but the helpful medical "professional" decided to go from CBP accusation to painful probing, bypassing less intrusive options (x-rays, etc.) in his earnest desire to save America from illicit substances.

Another incident with lots of probing and violations but zero drugs has landed in the Fifth Circuit Appeals Court. Gloria Bustillos (an American citizen) was attempting to return to El Paso, Texas after a visit to Juarez, Mexico when CBP agents decided she must be trafficking drugs. The indignities began immediately. From the decision [PDF]:

First, two female agents conducted a pat down. The agents found no drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert to the presence of drugs. Two agents then took Bustillos to a restroom, where they ordered her to pull down her pants and underwear and bend over slightly. The agents conducted a visual inspection of Bustillos’ vaginal and anal area. Again, the agents found no drugs.

Free to go? Not a chance.

Despite no evidence of drugs, the agents placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported her to the University Medical Center (the “Hospital”) in El Paso.

At the Hospital, Doctors Michael Parsa and Daniel Solomin (the “Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin found no evidence of drugs. As part of these searches, the Doctors, and Nurses Lynette Telles and Frank Mendez (the “Nurses”), allegedly “brutally” probed Bustillos’ cavities in the presence of hospital personnel. Bustillos did not consent to any of the above searches.

Having been violated multiple times in an attempt to confirm the CBP's verifiably-wrong suspicions, Bustillos sued. And the court has nothing for her. The district court upheld immunity for the medical personnel who performed the series of invasive searches and the Fifth Circuit Appeals Court affirms this decision.

Bustillos argues that the Doctors and Nurses violated her Fourth Amendment right to be free from unreasonable searches and seizures by detaining her in order to conduct x-ray, pelvic, and rectal exams without reasonable suspicion of criminal activity. The district court held those allegations cannot overcome the Doctors’ and Nurses’ qualified immunity because the right at issue was not clearly-established. We agree and affirm on that ground.

This part sounds hopeful…

Nonetheless, we take this opportunity to clarify the constitutional duties of medical staff when they cooperate with law enforcement searches.

But it isn't. The appeals court holds that medical personnel are in no position to question the orders of government agents. CBP officers can make almost any statement and suggest courses of action and medical personnel should just shut up and do what they're told, even if less-invasive procedures suggest more-invasive procedures aren't any more likely to produce supposedly-hidden drugs. (Emphasis added.)

Accordingly, Bustillos’ allegations could potentially assert a constitutional violation. The complaint is, however, ambiguous on critical factual allegations. For instance, it is unclear who Bustillos alleges actually ordered the various searches. Further, it is unclear what the CBP officers told medical staff regarding their basis for requesting the various searches. These facts are important because the officers’ articulation of probable cause for a minimally invasive search, such as the x-ray, would not necessarily shield the Doctors and Nurses from liability for the more intrusive searches, such as the rectal probe, if the officers did not request that search or represent that sufficient suspicion justified it. However, if the officers requested all of the medical examinations, the Doctors and Nurses would have a strong argument that they had no duty to second-guess the Fourth Amendment basis for those searches.

But the appeals court stops there. It could have examined the sufficiency of the allegations. The court says the underlying facts (apparently not on the record) "are important" as they would what was done under the command of CBP officers and how many invasive searches were performed without direct instruction. Certainly medical personnel aren't well-positioned to questions law enforcement assertions -- and it may be ultimately correct that they should not be held liable for invasive tests ordered by the government. But the appeals court just discards the discussion without sending it back to the lower court to further assess the underlying facts. The appeals court simply says the right to be free of invasive medical searches performed possibly at the government's behest was "not clearly established." The "clarification" the court promised earlier in the decision materializes as a muddy paragraph that clarifies nothing because the court is unwilling to clarify it further than "maybe medical personnel shouldn't question law enforcement."

This failure of justice is made even more apparent when the court moves on to discuss Bustillos' challenge of the lower court's denial of discovery.

Bustillos claims that the district court abused its discretion by failing to grant her requests to conduct discovery prior to ruling on the motions to dismiss. We disagree.

Both motions for protective orders noted that the Doctors had asserted qualified immunity. “One of the most salient benefits of qualified immunity is protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified immunity is alleged, the district court must first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcome’ a qualified immunity defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014) (quoting Backe, 691 F.3d at 648).

Because Bustillos’ claims could not overcome the clearly-established prong of the qualified immunity defense, the district court did not err by declining to grant Bustillos’ discovery requests.

So, the court says plaintiffs in her situation are fucked. They can't sufficiently allege violated rights without more factual development, but the qualified immunity defense prevents discovery from even occurring. Plaintiffs apparently have to enter the court with all the facts on hand at the time of filing. Most government agencies are unwilling to hand over pertinent documents to victims of their malfeasance at any point, forcing plaintiffs to engage in an FOIA lawsuit (and secure a victory) before even attempting to file a civil rights lawsuit. The clock starts ticking on civil rights lawsuits the moment a violation occurs, making it all but impossible to win a public records suit (and secure helpful facts) prior to bringing allegations of rights violations to the court. Qualified immunity is an insanely high bar to meet, and it's only made worse when courts at the appellate level refuse to clarify constitutional duties of medical professionals beyond "if law enforcement is involved in any way, medical professionals can do whatever they want without worrying about being held liable for their actions."

Filed Under: 4th amendment, 5th circuit, cbp, drug searches, drugs, gloria butillos, police

Judge Allows Fourth Amendment Challenge Of Warrantless Device Searches At The Border To Continue

from the uphill-battling dept

A federal judge has allowed the ACLU, EFF, and the several plaintiffs they represent to continue their Fourth Amendment lawsuit against DHS, ICE, and CBP. The plaintiffs are challenging the Constitutionality of border device searches -- something that has skyrocketed in recent years. As it stands now, these agencies believe nothing stronger than reasonable suspicion is needed to perform highly-intrusive searches. In many cases, not even suspicion is needed, thanks to the "border search" exception to the Fourth Amendment courts have carved out for the government.

Policies for agencies performing border device searches are pretty much identical. All allow searches and seizures of devices without individualized suspicion. This warrantless, suspicionless search may also result in the device being confiscated for weeks or months while a forensic search is undertaken -- again, supposedly without violating travelers' rights. CBP's policy was altered this year, requiring forensic searches and the mirroring of devices to at least reach the level of reasonable suspicion. Better than ICE's policy, but still nothing approaching a warrant.

The government sought to have the lawsuit dismissed, claiming the plaintiffs had no standing to assert violations, much less seek injunctive relief on the theory they would likely be subjected to intrusive device searches the next time they traveled.

The court disagrees with all the government's arguments. The government claimed the number of device searches -- although steadily increasing -- is still a small percentage of the overall whole. The court points out it doesn't really matter what the percentage is. It's whether or not CBP and ICE perform these searches routinely. From the decision [PDF]:

Defendants contend that Plaintiffs have also failed to satisfy the “substantial risk” inquiry. Plaintiffs allege that CBP data demonstrates that it is on track to conduct approximately 30,000 searches this fiscal year. Defendants point out, however, that those searches only amounted to 0.008% of the approximately 189.6 million travelers who arrived at U.S. borders during this period. Defendants argue that this future search probability—which they characterize as a “slight chance” of search—is not sufficient to establish standing here.

There is no numerical threshold, however, at which likelihood of harm becomes a “substantial risk” of harm. See Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014) (noting that “a small probability of a great harm may be sufficient”). Although 0.008% may be a small percentage of total travelers, the searches still occur at an average of approximately 2500 searches per month. In SBA List, the Supreme Court supported its conclusion that there was a substantial likelihood of future harm with the explanation that proceedings enforcing the statute in question were “not a rare occurrence,” with twenty to eighty such cases occurring per year. Against this backdrop, 30,000 searches per year is not a “rare occurrence,” even if it makes up a small percentage of total travelers.

The government also argued allegations of future harm were too vague to support a lawsuit. The court finds this argument unbelievable, given the history of the plaintiffs' interactions with border agents and the agencies' border search practices.

Defendants also argue that Plaintiffs’ allegations of future harm are impermissibly “vague” and speculative. They point to Reddy for the proposition that in the First Circuit, “‘[s]peculation’ that a government actor ‘might in the future take some other and additional action detrimental to’ Plaintiffs, is ‘not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’” In Reddy, however, the First Circuit held that the plaintiffs’ assertions of standing were speculative as to a New Hampshire buffer zone statute, emphasizing that the statute had not yet been enforced. Here, by contrast, Plaintiffs challenge policies that are in place and are being actively enforced.

[...]

Plaintiffs’ alleged future injury does not depend upon defendants’ future illegal conduct untethered to a pattern of past practice, cf. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (concluding that plaintiff subject to illegal arrest procedure made no showing that he was likely to be arrested and subjected to illegal procedure again), but rather upon recurring conduct authorized by official policies. That is, Plaintiffs’ subjection to prior searches further bolsters their allegations of likely future searches.

The heart of the matter is the border search exception. It's what allows CBP and ICE to bypass the Supreme Court's Riley decision and its institution of a warrant requirement for device searches. The government seizes a single phrase from the Supreme Court ruling: "search incident to arrest." Its argument attempts to divorce border device searches from the Supreme Court's finding that searching cellphones was more analogous to searching houses than searching pants pockets or suitcases. The court doesn't agree with the government's distinction.

As an initial matter, the Court is not persuaded that Riley’s reasoning is irrelevant here simply because Riley’s holding was limited to the search incident to arrest exception, see Riley, 134 S. Ct. at 2495. Judicially recognized exceptions to the warrant requirement do not exist in isolation; rather, they are all part of Fourth Amendment jurisprudence, justified because, ordinarily, the circumstances surrounding the search and the nature of the search have been deemed “reasonable.”

[...]

Here, the First Circuit has not yet spoken on what level of suspicion is required to justify a cell phone or other electronic device search at the border. The First Circuit has, however, acknowledged the significant privacy interests implicated in a cell phone search, explaining that the information on these devices is “the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.”

The court then goes on to say that merely raising the standard for invasive device searches to "reasonable suspicion" may not be enough.

[T]he Supreme Court rejected the reasonable suspicion standard when it came to cell phones because it “would prove no practical limit at all when it comes to cell phone searches.” Digital device searches at the border, perhaps even when supported by reasonable suspicion, raise the same concerns.

This is encouraging, even if all that's happened at this point is the case surviving the government's motion to dismiss. It provides plenty of insight into the court's thinking, and shows how much of it is at odds with the government's assertions. This has the potential to restore some Fourth Amendment protections at our nation's borders for the first time in years.

Filed Under: 1st circuit, 4th amendment, border searches, cbp, dhs, ice, warrants
Companies: aclu, eff

CBP Sued For Seizing $41,000 From Airline Passenger, Then Refusing To Give It Back Unless She Promised Not To Sue

from the Customs-and-Border-Pickpockets dept

Another case of asset forfeiture is the subject of a federal lawsuit. Like many others, the plaintiff has obtained the assistance of the Institute for Justice in battling the government for the return of seized assets. In this case, a US citizen saw $41,000 of hers disappear into the government's custody when she attempted to take it to her hometown in Nigeria to start a medical clinic.

After detaining her for hours at the airport, the CBP decided it could keep the money Anthonie Nwaorie lawfully earned.

CBP took the money because Nwaorie, a U.S. citizen since 1994 who lives in Katy, had not declared that she was taking more than $10,000 out of the country — a technical requirement that her lawyers say is not well-publicized or easy to comply with.

If this was the only problem, it was "solved" by Customs officials detaining Nwaorie long enough for her to miss her flight. No money left the country, undeclared or not. If this was criminal act in need of punishment, the CBP could have turned this over to prosecutors. But none of this happened. The CBP simply took the money and ghosted Nwaorie. From the lawsuit [PDF]:

After receiving a CAFRA [Civil Asset Forfeiture Reform Act] seizure notice from CBP in November 2017, Anthonia timely submitted a claim under CAFRA on December 12, 2017, requesting that CBP refer the case to the U.S. Attorney’s Office (USAO) for court action, thus electing a judicial forfeiture proceeding rather than an administrative forfeiture proceeding. The USAO declined to pursue forfeiture of the seized cash and the government failed to timely file a forfeiture complaint within the 90-day period required under CAFRA. At this point, CAFRA automatically required that CBP “promptly release” the seized property.

The money was never released, despite the CBP's clear legal obligation. Instead, the agency attempted to force her into granting it a permanent pass from civil liability in exchange for her cash it had never bothered processing.

[R]ather than promptly releasing the seized cash to Anthonia as required under federal law, CBP instead sent Anthonia a letter dated April 4, 2018, conditioning the return of the seized cash on Anthonia signing a Hold Harmless Agreement that waives her constitutional and statutory rights, and requires her to accept new legal liabilities, such as indemnifying the government for any claims brought by others related to the seized property. The letter stated that if Anthonia did not sign the Hold Harmless Agreement within 30 days from the date of the letter, “administrative forfeiture proceedings will be initiated.” On the other hand, if she signed the Hold Harmless Agreement, the letter said she would be mailed a “refund check” for the full amount of the seized cash in 8 to 10 weeks.

This is the government holding someone else's money hostage -- nothing more. The CBP has a legal obligation to return property it isn't going to process through the courts. There's nothing in the law demanding citizens waive a bunch of their rights just to reclaim what the government has taken from them.

This will be a tough case for the government to defend. The CBP accused Nwaorie of breaking federal law, but never followed through on that claim. It kept her money but never bothered processing it as an administrative or judicial forfeiture. It apparently assumed she would never challenge the seizure. When she did, it told her it would keep the money unless she agreed in writing to never pursue the government for its bogus and badly-handled seizure.

As for the law the CBP claimed she had broken -- not declaring funds over $10,000 when leaving the country -- Nwaorie points out the government has done nothing to make travelers aware of this requirement. She states she's aware this is required when entering the country (declarations of cash, etc. being brought into the country) but had no idea the government demands the same declaration when exiting. As she points out in her lawsuit, multiple government travel tip website pages have nothing at all to say about cash reporting requirements.

Information about the currency reporting requirement for travelers departing the United States is not found in lists of tips for international travelers on government websites such as: CBP’s “U.S. Traveler’s Top Ten Travel Tips” webpage, https://www.cbp.gov/travel/us-citizens/know-before-you-go/us-travelers-top-ten-travel-tips; the list of “Documents You Will Need” (or elsewhere) on CBP’s “Before Your Trip” webpage, https://www.cbp.gov/travel/us-citizens/know-before-you-go/your-trip; the list of required documents on the State Department’s “Traveler’s Checklist” webpage: https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelerschecklist.html; TSA’s “Top Travel Tips,” https://www.tsa.gov/travel/travel-tips/; TSA’s “Travel Checklist,” https://www.tsa.gov/travel/travel-tips/travel-checklist; or TSA’s “FAQ” for travelers, https://www.tsa.gov/travel/frequently-asked-questions.

On top of that, the reporting must be done at the time of the flight, but the office where the reporting is handled is not even located on the airport's property, much less in the terminal. And then there's the petty grubbiness of the CBP officers' actions -- like their decision to cut open her bag to access the cash, rather than use the key she provided them, and threatening to harass and detain her in the future any time she decides to board an international flight.

There's no questioning what the law says the government must do in cases like this. Her lawsuit quotes the relevant text from CAFRA:

Under CAFRA, if the government fails to file a complaint “before the time for filing a complaint has expired” (and does not obtain a criminal indictment containing an allegation that the property was subject to forfeiture), “the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.”

Here, the CBP shrugged off its statutory obligations and compounded it by tying the money's return to a promise not to sue. That thuggish plan has backfired.

Filed Under: anthonie nwaorie, asset forfeiture, asset seizure, cash, cbp

CBP Using Fake Math To Greatly Inflate Number Of Assaults On Border Patrol Officers

from the 'a-vast,-unprecedented-increase-in-departmental-bullshit...' dept

Customs and Border Protection is inflating numbers to push a narrative about dangerous undocumented immigrants. And it's not just a little bit of fudging. It's a whole new way of counting -- one that fuels anti-immigrant rhetoric and keeps the agency well-funded.

As crime numbers around the nation remain at historic lows, there appears to be an explosion of violence near our southern borders, targeting Border Patrol officers.

According to U.S. Customs and Border Protection data, assaults on Border Patrol officers increased dramatically in fiscal year 2016, reversing a long downward trend. That year, CBP claims, there were 454 assaults on agents nationwide, compared with 378 in fiscal year 2015, a 20 percent increase. The increase from 2016 to 2017 was even more surprising. In 2017, according to CBP, there were 786 assaults, a spike of 73 percent, even as apprehensions fell from 415,816 to 310,532.

But there's actually been no spike in violent incidents. In fact, numbers have been trending downwards since 2012. In 2015, the CBP rolled out its new math, kick starting a rise in number of assaults on CBP officers and reversing the trend. This dramatic increase in assaults on officers isn't supported by any normal means of counting assaults. This is how the CBP does its "assaults on officers" addition. It involves a lot of multiplication.

Almost the entire increase — 271 purported assaults — was said to have occurred in one sector, the Rio Grande Valley, in South Texas. A large number of the assaults supposedly occurred on a single day, according to charts and details provided by Christiana Coleman, a CBP public affairs spokesperson. In response to questions from The Intercept, Coleman explained in an email that “an incident in the Rio Grande Valley Sector on February 14, 2017, involved seven U.S. Border Patrol Agents assaulted by six subjects utilizing three different types of projectiles (rocks, bottles, and tree branches), totaling 126 assaults.”

This is how you turn seven assaults in 126 assaults: 6 x 3 x 7 = 126. This is the formula used by the CBP since 2015 to greatly overstate violence near the borders and give Americans the false impression Border Patrol officers are increasingly subject to physical assault. A single incident involving seven assaulted officers becomes 119 additional "assaults."

There's more to it than simply turning simple tallies into multiplication problems. Apparently, assault doesn't even have to involve assault.

According to the FBI, most Border Patrol agents for whom assault data has been publicly reported were not injured. Rocks and water bottles don’t always hit their mark. Or they are never thrown in the first place — for reporting purposes, apparently, the mere brandishing of an object constitutes assault.

In all likelihood, being a Border Patrol agent today is as safe as it was in 2015, before CBP started messing with the math. A Border Patrol agent's relative safety surpasses that of law enforcement officers -- another group that tends to exaggerate the life-threatening aspects of the profession.

The decrease was so significant that by 2016, according to FBI statistics, Border Patrol agents were about five times less likely to be assaulted than officers in local police departments — and only half as likely to be killed on the job by homicide or by accident. As the Cato Institute observed in November, “Regular Americans are more than twice as likely to be murdered in any year from 2003 through 2017 than Border Patrol agents were.”

Despite this supposed spike in violent assaults, the CBP has issued zero press releases and made zero public statements about this self-created epidemic of violence. Instead, it has fed those numbers to people who can make the most of them: politicians.

At the Department of Homeland Security’s 15th anniversary celebration in March, Vice President Mike Pence talked about why the Border Patrol needs $21 billion in additional funding “to provide our front-line agents with the personnel, the technology, the equipment, and the facilities to do their job.”

Pence said all this was needed because “one of the most shocking stories we heard was in the last fiscal year” when “attacks on our Border Patrol agents had increased by 73 percent.” This, he added, was why the Trump administration was seeking $18 billion for a border wall.

The CBP is better off allowing politicians to stir anti-immigrant fervor. Politicians are naturally better at PR and selling narratives. What the CBP wants is a steadily-increasing budget and feeding fake stats to lawmakers ensures the paychecks will follow the rhetoric. It's blatantly dishonest to portray assaults in this manner. And the CBP knows it. But it has no interest in earning the public's trust or being a good steward of the funds and powers granted to it by the citizens and their government.

Filed Under: assaults, border patrol, cbp, fake news, fake stats

Court Says Arizona Residents Hassled By CBP Encroachment Can Move Forward With Their First Amendment Lawsuit

from the jackbooted-thugs-as-a-service dept

About a half-decade ago, Customs and Border Patrol turned roads in and out of a small Arizona town into East Germany. Now, the Ninth Circuit Appeals Court has ruled residents of Arivaca, Arizona can move forward with the civil rights lawsuit against several federal government agencies, including the DHS and CBP.

The backstory to the lawsuit is stunning, in a "surely this can't be happening in America" sort of way. The New York Times covered the misery of Arivaca residents back in 2014. It shows what can happen when the federal government is allowed to turn large swathes of American soil into a proto-DMZ with armed guards and "papers, please" checkpoints.

Every time Jack Driscoll drives the 32 miles from this remote outpost in southeastern Arizona to the closest supermarket, or to doctor’s appointments, or to a pharmacy to fill his prescriptions, he must stop at a Border Patrol checkpoint and answer the same question: “Are you a U.S. citizen?”

Sometimes, Border Patrol agents ask where he is going or coming from, the type of car he is driving, what is in that bag on the back seat or what brings him to these parts, even though he has lived here for more than a year.

[...]

He is not the only one in this community of 800 whose anger is boiling over. Although checkpoints are a fact of life here — the tollbooth-like way stations are part of the routine for anyone driving the highways near the border — citizens like Mr. Driscoll are now starting to raise questions about whether the familiar but irritating routine violates their constitutional rights, which include protections against arbitrary stops and searches.

Most residents of Arivaca have to leave town to do anything. The small town has few services, forcing residents to deal with the CBP every time they travel anywhere else. Surrounded by three roads with three checkpoints, residents have no option but to subject themselves to unneeded scrutiny, apparently in perpetuity. Despite the CBP's stranglehold on this particular border-adjacent area, no one who's dealt with CBP hassle for years has seen much in the way of border protection. And they would know, because they've been watching.

This year, volunteers organized, gathering hundreds of signatures and picketing outside the Border Patrol offices in Tucson to try to get the checkpoints removed, to no avail. For several months, small groups monitored the busiest of the area’s checkpoints, on Arivaca Road, noting things like the length of the stops, the questions asked and the number of drivers pulled aside for a search of their vehicle and belongings.

“We didn’t see any arrests,” said one of the volunteers, Peter Ragan, 52, a landscaper who has lived in Arivaca for 12 years. “There were no undocumented people apprehended at the checkpoint, no drugs interdicted, no murderers, rapists or terrorists we were defended against, as far as we could see.”

To be clear, none of these residents ever leave the country. All of this activity -- this constant monitoring of 800 residents of a small Arizona town -- targets US citizens going from place to place entirely within US borders. The pushback by residents was limited to monitoring CBP operations from public roads. No one interfered with the work being done by officers. All they did was watch, record, and protest the CBP activities.

The CBP didn't like this. It couldn't just tell residents to leave, however. That would have been too obvious of a Constitutional violation. Instead, the CBP did everything it could to deter citizens from documenting the agency's activities. From the appeals court decision [PDF]:

Some of them, as part of an organization called People Helping People (PHP), held a protest near the checkpoint area on December 8, 2013. The protest was spurred by community complaints that BP agents racially profiled, unlawfully searched, and used excessive force on people stopped at the checkpoint. The BP agent in charge of the checkpoint area learned of the planned protest and decided to suspend checkpoint operations during the protest, allegedly for the safety of all involved, which permitted cars to pass uninspected. On February 26, 2014, the Appellants and others returned to the checkpoint area to protest and to monitor activities within the checkpoint area. The protesters stood first on the south side of Arivaca Road, and later on the north side of the road, in each case approximately 100 feet east of the portable office. After the protesters refused to move further away from the checkpoint area, BP agents erected a yellow tape barrier across the north and south shoulders of Arivaca Road approximately 150 feet east of the portable office unit, and required the protesters to relocate behind those barriers.

First, there was the arbitrary decision by the CBP that moved protesters and observers back 50 feet, as though 100 feet wasn't far enough away for the CBP to do its work without interference. Anyone crossing the tape barrier was threatened with arrest.

Then there's the fact that the CBP only enforced this ad hoc barrier against protesters and observers.

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine “who can enter into the perimeter” and “where [Appellants] can and can’t be.” On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident’s wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted “Well, we had our fun today” to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, “It’s a free country.”

Is it? Sure doesn't seem like it when you're being asked about your citizenship several times a week and forced to stand behind an arbitrary barrier to even look at a CBP checkpoint.

Sometimes the tape barrier wasn't enough for the CBP. It also engaged in activities clearly aimed at preventing observation from behind the barriers.

On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone.

The residents sued (with the assistance of the ACLU), alleging First Amendment violations. The district court ruled in favor of the CBP, granting summary judgment before any discovery had occurred. It called the three CBP checkpoints (which were supposed to be temporary) "nonpublic forums" where citizens could be removed without violating their rights.

The Appeals Court calls this decision premature, stating that the plaintiffs have raised several issues which require discovery to proceed before they can be ruled on.

The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

This decision allows the residents of Arivaca to move forward with their lawsuit and start demanding records from the CBP. The first point of attack against the "nonpublic forum" argument begins with the CBP's own antagonistic actions. As the court notes, the inconsistent approach taken by the CBP in regards to its makeshift protester barriers raises a lot of questions about the supposed "neutral viewpoint" of the CBP's enforcement.

The government’s stated policy is that “pedestrians are allowed inside the checkpoint only for official purposes,” but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government’s policy.

Hopefully, this will result in a win for the plaintiffs. Their protests and documentation are the only way they can fight back against the CBP's inland encroachment. The continued observation will likely show the only purpose these checkpoints serve is to disrupt the lives of American citizens traveling entirely within the borders of the United States.

Filed Under: arivaca, arizona, cbp, checkpoints, civil rights, customs and border patrol, dhs, encroachment, first amendment

Rancher Sues CBP After Officers Install A Camera On His Private Property

from the CBP-is-just-another-word-for-nothing-left-to-violate dept

The CBP's habit of moving further and further inland in their search for deportees, drugs, and water to dump on the ground isn't making it any new friends. Residents of small towns near the border are getting very sick of having to assert their citizenship multiple times a day thanks to Checkpoint Charlie camping out on every road out of town.

The federal government doesn't care. No sacrifice is too great to demand from citizens to keep this country safe from job seekers, victims of violence, and the occasional MS-13 gang member. Rights are optional within 100 miles of US borders and they're completely nonexistent within 25 miles of crossing points. It's this 25-mile cutoff that's key to federal lawsuit arising from trespassing CBP officers and the spy cam they placed on the property of a local who's spent years complaining about the CBP's incursions.

Cyrus Farivar covers the story of Texas rancher Ricardo Palacios at Ars Technica. And it's a good one. Palacios discovered a camera on his property and took it down. Shortly thereafter, the CBP and the Texas Rangers rang him up, demanding the return of their surveillance camera. Palacios refused and was threatened with criminal charges.

Palacios, who had run-ins with local CBP agents going back several years, took the camera as the last straw. He was tired of agents routinely trespassing on his land, and, even after complaining several times, he was frustrated that his grievances were not being heard.

As a possible way to ward off the threat of arrest, he sued the two agencies, along with a named CPB agent, Mario Martinez. Palacios accused them of trespass and of violating his constitutional rights.

"My client is 74 years old, he's a lawyer, been practicing for almost 50 years, he has no criminal history whatsoever, law-abiding citizen, respected lawyer and senior citizen," Raul Casso, one of the attorneys representing Palacios, told Ars. "To have put him in jail would have been—forget the indecency of it—what a way to end a career."

For now, the camera is being held by Raul Casso. Casso wants to introduce it as evidence in Palacios' lawsuit. Central to his lawsuit is the CBP's free-for-all zone, which statutorily permits the CBP to do whatever the hell it wants within 25 miles of a border crossing. The thing is Palacios' property ends 35 miles from the nearest border crossing in Laredo, Texas. That leaves Palacios in the "Constitution-free zone" (100 miles from the border) where he can be subjected to suspicionless searches, but puts him 10 miles past the point where the CBP can enter his property for any reason at all.

Palacios alleges years of illegal behavior by CBP personnel, all seemingly stemming from a stop of his sons by the CBP seven years ago.

[H]is interactions with CBP began in April 2010 when his two sons were stopped at a checkpoint along I-35. When one son, Ricardo Palacios Jr., refused to answer questions, he was taken to a secondary inspection where he was assaulted by a CBP officer. Eventually, after being detained for 90 minutes, he was driven home to the ranch just a few miles away.

Over the next several years, CBP agents roamed "freely about, day or night" on the Palacios ranch, despite his numerous efforts to protest. He even sent a formal letter to a regional CBP supervisor on April 9, 2010. However, the letter doesn't seem to have made any substantive difference.

A cycle of CBP agents making incursions onto the ranch and Palacios telling them to leave continued for years—that is, until he found the camera.

The lawsuit hopes to prevent CBP from entering Palacios' property without permission or probable cause. Palacios isn't close enough to the border for the CBP to deploy its "zero rights recognized" arguments, so the agency is leaning on qualified immunity instead. Even so, it still needs to explain why it installed a camera on private property 35 miles inland. So far, the lawsuit consists only of Palacios' complaint [PDF] and the government's response. No rulings have been made, and the motion [PDF] by Palacios to admit the camera as evidence has yet to be reviewed by a judge.

This may seem like a small incursion only miles from an area the federal government (and the courts that agree with it) have said Americans have zero rights. But it touches on a larger issue. At what point (and at what exact distance) does American life as we know it cease to exist? Where is the bright line that declares rights null and void -- a sacrifice on the altar of border enforcement and national security? These are questions that need to be answered precisely. Punting on these issues will only embolden federal agents to wander further from the border and encroach on the rights of the citizens they're supposed to be protecting.

Filed Under: border patrol, cameras, cbp, property, ricardo palacios

US Border Officials Have Never Verified Chipped Passports, Despite Demanding Their Usage

from the total-failures dept

Ron Wyden is at it again. Sending pesky letters to government officials who appear to be completely falling down on the job. The latest is asking Customs and Border Patrol why it's still not verifying the e-passport chips that have been in all US passports -- and in all countries on the visa waiver list -- since 2007 (hat tip to Zach Whittaker). The letter points out that the US government pushed hard for these chips... and then never bothered to check to make sure no one has tampered with them.

The U.S. government played a central role in the global adoption of e-Passports. These high-tech passports have smart chips--which store traveler information--and cryptographic signatures, an important security feature that verifies the validity and legitimacy of the passport and its issuing government agency. For more than a decade, the United States has required that countries on the visa-waiver list issue machine-readable e-Passports. Since 2015, the United States has further required that all visitors from countries on the visa-waiver list enter the United States with an e- Passport. Despite these efforts, CBP lacks the technical capabilities to verify e-Passport chips.

To be clear: it's not that CBP doesn't use the chips at all. It does download the info from the chips. But it ignores the cryptographic signatures and doesn't verify that the information hasn't been tampered with. Incredibly, the letter notes that CBP was informed of this problem all the way back in 2010 by the GAO, but has still not done anything about it.

CBP has deployed e-Passport readers at many ports of entry, which CBP personnel use to download data from the smart chips in e-Passports. However, CBP does not have the software necessary to authenticate the information stored on the e-Passport chips. Specifically, CBP cannot verify the digital signatures stored on the e-Passport, which means that CBP is unable to determine if the data stored on the smart chips has been tampered with or forged. CBP has been aware of this security lapse since at least 2010, when the Government Accountability Office (GAO) released a report highlighting the gap in technology. Eight years after that publication, CBP still does not possess the technological capability to authenticate the machine-readable data in e-Passports.

As with a number of recent letters that Wyden has been sending that touch on areas around the government falling down when it comes to encryption, I'm assuming that this latest one comes from the work that Chris Soghoian is doing since being hired full time to work for Senator Wyden. Soghoian spent years calling out bad encryption practices of all sorts of organizations in the past, and it's nice to see that he's now able to (hopefully) shame the government into doing things better as well.

Filed Under: cbp, e-passports, passports, ron wyden, smart chips, verification