Travelers To New Zealand Now Face $3,000 Fines If They Don't Give Their Device Passwords To Customs Agents

from the Eye-of-Sauron-experience dept

New Zealand's "digital strip searches" of travelers' electronic devices are now backed by law. When we covered this last year, customs officials were already seizing devices and performing invasive searches. But a new twist has been added with the enactment of New Zealand's most recent customs law: compelled password production.

Travelers entering New Zealand who refuse to disclose passwords for their digital devices during forced searches could face prosecution and fines of more than $3,000, a move that border officials said Tuesday made the country the first to impose such penalties.

“We’re not aware of any other country that has legislated for the potential of a penalty to be applied if people do not divulge their passwords,” said Terry Brown, a New Zealand Customs spokesman. Border officials, he said, believe the new fine is an “appropriate remedy” aimed at balancing individuals’ privacy and national security.

There's an interesting juxtaposition in the spokesman's comments, suggesting mandatory password divulgement -- something no other free world country is doing -- is striking the right balance between privacy and national security.

The law applies to incoming visitors and returning citizens. The fine kicks in when password demands are refused, which also likely means the seizure of locked devices indefinitely. Supposedly, unlocked devices are searched for local files only -- with phones put into airplane mode -- but that's still an incredibly invasive search predicated on nothing more than someone's arrival in New Zealand.

Government officials are justifying the compelled password production with bad examples and terrible analogies. The so-called "Privacy Commissioner" tried to equate cellphones and other digital devices potentially containing thousands of personal files and communications with something containing the few belongings someone takes with them while traveling. (via Boing Boing)

Privacy Commissioner John Edwards had some influence over the drafting of the legislation and said he was "pretty comfortable" with where the law stood.

"There's a good balance between ensuring that our borders are protected ... and [that people] are not subject to unreasonable search of their devices."

"You know when you come into the country that you can be asked to open your suitcase and that a Customs officer can look at everything in there."

Socks, underwear... 700 personal photos, a few thousand personal communications… yeah, it's all pretty much the same thing. This is like saying customs can demand your house keys and dig through your belongings simply because you traveled out of New Zealand and returned home.

The inadvertent hilarity comes from the Customs Minister, who is probably even less concerned about personal privacy than the Privacy Commissioner is.

Customs Minister Kris Faafoi said the power to search electronic devices was necessary.

"A lot of the organised crime groups are becoming a lot more sophisticated in the ways they're trying to get things across the border.

"And if we do think they're up to that kind of business, then getting intelligence from smartphones and computers can be useful for a prosecution."

There are plenty of ways to get digital "things" across the border without carrying them on your person in some sort of electronic "suitcase" you know customs officials are going to take from you as soon as you enter the country. This may help catch some dumb criminals, but it's not going to have much of an effect on the "sophisticated" organized crime groups.

What will happen is lots of people not connected to any criminal enterprise will have their devices seized and searched just because. The new fine will discourage visitors from refusing Customs' advances, allowing officials to paw through their digital goods just like they do their clothing. And all the government can offer in response is that the ends justifies the means.

Filed Under: borders, customs, device searches, new zealand, passwords, privacy

Homeland Security's Over Obsession With Counterfeits Now Harming Innocent Buyers Of Counterfeit Goods Online

from the this-is-not-theft dept

For many years we've talked about the kind of derangement that happens among many -- especially among those working for Homeland Security's Customs and ICE divisions -- considering the supposed "dangers" of counterfeit goods. Over and over again we've pointed to studies that have shown that the "harm" of counterfeits is massively overblown. And these are not just random studies picked out of a hat. Both the Government Accountability Office (GAO) and the OECD have put out studies on this. When you look at the details, you quickly learn that while there are a few cases of people tricked by counterfeit goods -- and a vanishingly small number of cases where people are put at risk due to counterfeits -- in many, many cases, no one is actually losing out due to counterfeits. They are frequently an aspirational buy. That is, the buyer knows they're buying a counterfeit good, but are doing so because they so appreciate the real version, but can't afford it. And studies show that buyers of counterfeits quite frequently buy the real deal later when they're able to afford it. Thus, counterfeits often act as marketing for the original.

But, for whatever reason, Homeland Security likes to play up the "threats" of counterfeits and makes lots of noise about how many counterfeit things it seizes at the border every year (or... not at the border -- such as the time it raided a lingerie store to get "counterfeit" panties advertising sports teams). And sure, Homeland Security really really wants you to believe it's protecting the public with this kind of thing.

But if that's the goal, explain this story. Harper Reed tried to buy a fancy Rimowa luggage on Amazon last year. There was no indication that it was counterfeit -- it was priced the same as actual Rimowa luggage. But customs intercepted the shipment and wouldn't let it in. That's fair enough, I guess, but it's the next part that's shocking. Because of this Customs refused to renew Reed's Global Entry membership. Global Entry, for those who don't know, is a process by which fliers who frequently travel internationally can fill out a form, go for an interview, pay some money... and be able to speed through customs upon re-entering the US. While some grumble about paying for access, it's actually a more reasonable security program than most -- in that it actually involves effectively pre-clearing people less likely to need scrutiny at the border.

But Reed's status was not renewed because he was listed as trying to "import counterfeit goods." Again, you can see the intent behind this rule. If someone is actually "importing" a bunch of counterfeit goods to sell, you can see how that might be a good reason to deny someone Global Entry. But Reed wasn't trying to import a bunch of counterfeit goods. He was trying to buy a suitcase. He didn't get it from Amazon (he bought one later from a store) and that's fair enough under the law -- but why hold that against him.

Apparently the geniuses at Homeland Security have little desire to distinguish a counterfeiting operation from a dude buying something on Amazon he thought was legit.

When CBP intercepts a shipment, says Mark Schonfeld, an intellectual property lawyer at Burns & Levinson LLP, in Boston, Massachusetts, it sends a seizure notice to the trademark holder (in this case, Rimowa), which includes the names of the importer and exporter. The brand can then decide what action it wants to take, if any. Going after the latter party can be difficult and costly, since the vast majority of counterfeits come from Asia (in 2016, nearly 90 percent of products seized by CBP originated in China and Hong Kong). The importer, however, is by definition domestic, making them the easier target.

Schonfeld says this is the first instance he’s heard of in which a consumer has been flagged for importing a single item, but that legally, the principle is the same. “It definitely can happen to a consumer,” he says. “You know, you can go to Tijuana, just right over the San Diego border and you can easily buy counterfeits there, but no consumer should think that coming back into the United States with the item is risk free.” Much more common are cases in which Amazon itself is named as the importer, particularly since it began courting Chinese sellers with favorable shipping terms in 2015, and as its Fulfillment By Amazon program expands by leaps and bounds each year, offering third-party merchants the chance to take advantage of the e-commerce giant’s logistics infrastructure, customer service, and even Prime two-day shipping by sending goods directly to its warehouses.

Again, at the very least, it seems that intent should be taken into account here. Buying something on Amazon, with no indication (not even price) that the luggage was counterfeit, should not lead one to being accused of being a counterfeiter. But, of course, with DHS feeling so damn strongly about the "evils" of counterfeiting, it's only to be expected that they'll overreact to situations like this as well.

Filed Under: counterfeits, customs, harper reed, homeland security, ice, luggage, online shopping, trademarks
Companies: rimowa

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

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

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

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

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

[...]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[...]

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

[...]

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

[...]

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

[...]

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

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

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

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

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

Homeland Security's Inspector General Investigating Attempt To Unmask 'Rogue' Tweeter

from the so-much-to-investigate dept

As you probably recall, a few weeks ago Twitter sued Homeland Security after it received a summons from Customs & Border Patrol seeking to identify any information about the @ALT_uscis account. USCIS is the US Citizenship and Immigration Service, and the "alt" part is similar to many other such accounts purporting to be anonymous insiders in the government reporting on what's happening there (whether or not the operators of those accounts truly are inside those organizations is an open question). Anyway, the issue here is that such a use of Twitter would be protected by the First Amendment, and unless the account was revealing classified info, it's unlikely that there would be any legit means to investigate who was behind the account. And, because of that, it certainly appeared that Customs and Border Patrol decided to use illegitimate means to get the info. Specifically it sent a 19 USC 1509 summons, which is an investigative tool for determining the correct duties, fees or taxes on imported goods. As you can see, identifying a Twitter user does not seem to fit into what that law is for.

Having been called out on this in federal court (and, one hopes, having DOJ lawyers chew out DHS/CBP folks), the feds dropped the summons hours later and Twitter withdrew the lawsuit.

However, abusing the law to seek out information like that is a pretty major abuse, and is one that shouldn't just let everyone move on afterwards without some sort of accountability. Senator Ron Wyden asked Homeland Security's Inspector General if it was investigating this and, in a fairly straightforward and open letter, DHS IG, John Roth, lets Wyden know that an investigation is ongoing and even clarifies what they are investigating and why. The letter itself is pretty clear, so I'll just post a chunk of it here:

While we typically do not comment on open investigations, it has come to my attention that there may be some confusion about the scope of DHS OIG’s work relating to this matter. Specifically, we have been asked to clarify which, if any, of the following three issues we are investigating:

(1) Misconduct on the part of the owner of the @ALT_USCIS Twitter account, who CBP suspected was a DHS employee;
(2) CBP’s use of its summons authority in this particular case; and
(3) Use of summons authority across the Department.

Regarding the first issue, we were asked by CBP to assist their efforts to determine whether the tweets at issue disclosed any classified information. To that end, we helped CBP pull the content of @ALT_USCIS’s tweets off the internet and cross-reference that content against data in DHS systems to determine whether the information was classified. We have concluded that no classified information was released via the @ALT_USCIS Twitter account.

I’d like to make clear that DHS OIG has not played any role in attempting to identify the owner of the @ALT_USCIS Twitter account, and only learned of the issuance of the March 14, 2017 summons when it was reported in the media. Our investigation protocol includes controls for situations in which First Amendment activity is implicated, and we strive to ensure that our work does not have a chilling effect on individuals’ free speech rights. I can confirm that DHS OIG is not investigating, and will not investigate, any alleged misconduct on the part of the @ALT_USCIS account owner relating to his or her use of the Twitter account.

Regarding the remaining two issues, I can confirm that DHS OIG is investigating whether the investigation conducted by CBP’s Office of Professional Responsibility relating to the @ALT_USCIS Twitter account was improper in any way, including whether CBP abused its authority in issuing the March 14, 2017 summons to Twitter. DHS OIG is also reviewing potential broader misuse of summons authority at the Department and/or its components.

That's pretty clear and makes sense. They looked and found no classified info being revealed, they've been careful to not seek any other way of identifying the owner of the account, or to do anything that might chill speech, and they are actively investigating if CBP abused its authority (beyond just this one case). I look forward to find out the results of that investigation.

Filed Under: alt_uscis, cbp, customs, dhs, rogue tweeter
Companies: twitter

Well, That Was Quick: Twitter Dismisses Lawsuit After Feds Drop Attempt To Unmask Rogue Tweeter

from the quick-flip dept

Yesterday we wrote about Twitter suing the US government after officials at the Department of Homeland Security sought to use a law designed to gather information for figuring out import duties, to unmask the operator of @ALT_uscis, alleging to comment on immigration issues from within the US Citizenship and Immigration Service. Twitter broke out the big guns for that case, as the lead attorney representing it was Seth Waxman, a former Solicitor General in the Clinton administration.

Apparently, the US government realized that it was going to be fairly difficult to make much of a case here and agreed to drop the summons it had issued to Twitter, leading Twitter to dismiss the case:

On April 6, 2017, Twitter filed a Complaint in the above-captioned matter. On April 7, 2017, counsel for Defendants from the Department of Justice contacted counsel for Twitter, to advise that U.S. Customs and Border Protection has withdrawn the summons and that the summons no longer has any force or effect. Because the summons has now been withdrawn, Twitter voluntary dismisses without prejudice all claims against Defendants in the above captioned matter.

There have been some folks who have questioned Twitter's motives in filing this lawsuit, but that seems misguided. Twitter has a long history of going above and beyond most everyone else in the tech industry in fighting back in court attempts by government officials to get info on its users without proper due process.

Filed Under: customs, doj, free speech, homeland security, immigration service, rogue accounts
Companies: twitter

Donald Trump Demonstrating How Much Of Our Political System Is Based On Tradition & Custom, Not Rules

from the is-that-good-or-bad? dept

Perhaps one of the most common phrases I've seen in reference to various actions by Donald Trump and his transition team since the election in November is "this is not normal" or "this is not how things are done." Those phrases keep popping up over and over again -- often in somewhat horrified tones. Politico recently had a pretty good article demonstrating how the Trump transition team seems to not care one bit about the traditional way things are done:

President-elect Donald Trump has said he might do away with regular press briefings and daily intelligence reports. He wants to retain private security while receiving secret service protection, even after the inauguration. He is encouraging members of his family to take on formal roles in his administration, testing the limits of anti-nepotism statutes. And he is pushing the limits of ethics laws in trying to keep a stake in his business.

In a series of decisions and comments since his election last month -- from small and stylistic preferences to large and looming conflicts -- Trump has signaled that he intends to run his White House much like he ran his campaign: with little regard for tradition. And in the process of writing his own rules, he is shining a light on how much of the American political system is encoded in custom, and how little is based in the law.

And... that's really quite interesting, because of how little many people -- especially policy experts -- have really stopped to consider how much of the way we do things is based on custom, and not actual rules. There are two ways of looking at this. First, there absolutely are serious problems with "the way things have always been done." So there's potential value in having someone who doesn't feel hamstrung by traditions and customs that might not make sense. But, the flip side of that is that there are often really good reasons for the way many of these things are done. And, so far, the customs and traditions that Trump has been indicating he'll ignore, are ones that do seem to be based on solid reasoning, rather than just silly legacy reasons. Intelligence reports, secret service protection, and anti-nepotism rules make sense.

It's one thing to blow stuff up because they're outdated and unnecessary -- and another thing altogether to just blow them up for the sake of blowing them up, or even just out of convenience. But as a way of highlighting just how much of our system is held together based on legacy reasons, rather than actual rules, it's fascinating.

Filed Under: customs, donald trump, politics, rules

Judge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot Dragging

from the there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsui dept

Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn't all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal "so sue us" non-response.

The DHS's Inspector General found that over a three-year period (2011-13), the CBP "mishandled" 23,000 FOIA requests. "Mishandled" is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP's FOIA response system.

A class action lawsuit has been brought against the agency for its "pattern and practice of failing to respond to FOIA requests within the statutory timeline." The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP's unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)

The order notes that the CBP does not challenge the assertion that it doesn't respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn't seem to be interested in solving. As it stands now, it's unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.

CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog -- the number of requests that have gone unanswered past the statutory deadline -- has swelled over the last few years and will require almost 10 years to zero out at the current pace.

While the CBP doesn't dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn't an actionable injury in the context of a class action suit.

No sale.

The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.

If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you'd better believe FOIA-related foot dragging is actionable -- no matter how much the CBP wishes that weren't the case.

The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” -- which of course overlooks the decisions outside this District that reach the same conclusion -- but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”

The CBP could not be more wrong, says Judge James Donato.

This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.

The government also argues the plaintiffs have no standing because their accusations require "specific allegations of future harm." Again, Judge Donato points out the error in its thinking.

Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay -- and recognized a plaintiff’s standing to bring them -- “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).

In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file[]” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.

The plaintiffs haven't actually been handed a win here, but rather survived a motion to dismiss from the government. But the court's reading of the government's arguments here show it's not too impressed with the CBP's excuses for its miserable track record on FOIA responses.

The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs' complaint. The CBP's delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system -- recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.

Filed Under: cbp, class action, customs, dhs, foia, foot dragging, responses

Judge Tosses 16 Kilos Of Meth Because CBP Couldn't Be Bothered To Obtain Consent For Its X-Ray Search

from the for-the-lack-of-a-warrant,-the-drug-bust-was-lost dept

I guess if you're going to engage in a stupid, neverending "war," the most honest way to approach it is stupidly.

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

Filed Under: 4th amendment, cbp, consent, customs, customs and border patrol, meth, search

New Zealand Whistleblower Reveals He Was Told To 'Bury' Unflattering Info About The Gov't Spying On Dotcom

from the incredible dept

The list of incredible screwups concerning the investigation, raid and prosecution of Kim Dotcom in New Zealand is fairly incredible. At nearly every step of the way, we find out more and more about just how monumentally questionable the whole thing was. Frankly, I have no idea if what Dotcom did with Megaupload broke the law, but the indictment against him was filled with really questionable claims, the GCSB (local equivalent of the NSA) illegally spied on Dotcom and then deleted the evidence, the police sought to suppress images of the raid itself, and evidence was mishandled. Oh, and it was eventually revealed that customs officials agreed to share info on Dotcom with the FBI in the US to "buy... brownie points" with the FBI.

And, now a former high-ranking New Zealand Customs lawyer has said that he quit his job after he was ordered to "bury" information that made the New Zealand government look bad. Specifically, this is about that last point above -- the letter concerning the brownie points. Apparently, the New Zealand government didn't want that email to get out, despite it being required to be released under a freedom of information request (in New Zealand it's the Official Information Act). Curtis Gregorash, a lawyer in the Customs department was told directly not to release any such documents:

"Mr Taylor directed me to withhold all information and pass the same direction on to my team."

He said he was subjected to an internal investigation after releasing information about Dotcom sought by the NZ Herald through the Official Information Act. The information released saw Customs staff discuss earning "brownie points" by passing on Dotcom information to the FBI.

"Simpson Grierson [Dotcom's lawyers] had made several Privacy Act requests of the Government, some of which flowed through Customs, and decisions were made from ministerial level with Maurice Williamson directing Customs, 'Don't you dare release anything - nothing at all.'"

Gregorash apparently disobeyed these orders and released the "brownie points" letter -- as required by law -- and then faced an internal investigation, leading to him resigning in protest.

The "brownie points" OIA release to the Herald was the tipping point. "I got dragged over the coals for it. There was an investigation into me. I was cleared. I resigned after that."

He also seems to indicate that other documents that should have been released were withheld as well:

"All sorts of jokes and laughs and cut-downs that were being made by officials to each other were being withheld for [what he considered to be] no reason."

Gregorash had held onto the story for a while, but decided that it needed to be told.

Combined with everything else about this investigation and prosecution, it again makes you wonder what people were thinking. It still really feels like the DOJ and New Zealand officials all simply believed Hollywood's fanciful stories about Dotcom being "Dr. Evil" -- a cartoonish villain so bad that official and legal processes could be thrown out the window just to get him at any cost. Once again, it suggests that Hollywood and the DOJ officials who support it would be much better off actually taking the time to understand the nuances of the copyright debate, rather than their crude "piracy bad" level of understanding that they seem to have of it.

Filed Under: brownie points, copyright, coverup, curtis gregorash, customs, fbi, kim dotcom, new zealand, raid
Companies: megaupload