By Joe Jarvis
Over 30,000 people had their electronic devices searched without probable cause or a warrant by Customs and Border Protection in 2017. This is a 50% increase from 2016.
Most of the searches took place at airports when travelers were leaving the country. And 80% of those searched were not American citizens.
I happen to think anyone on American soil deserves every protection under the Bill of Rights. But maybe you think foreigners do not qualify for those protections. That still leaves 6,000 Americans who had their rights against unreasonable search and seizure violated by American Customs Agents in 2017.
Imagine the helplessness of having your phone taken by an Agent, and searched without your consent. No suspicion of any crime. No probable cause. Just some thug using brute force to violate your privacy.
In these settings, travelers are powerless. You just want to get home or continue to your destination, but the American police state shakes you down.
Two U.S. citizens and their family were stopped at the Houston airport when returning from a vacation to Guatemala. They reported: “We were separated and individually interrogated . . . including my teenage daughters. All our luggage was searched, all our papers were copied–including newspapers we had picked up in our travels. Our phones and electronic devices (ipad etc.) were taken, searched and all information was copied)–all this without any explanation or accusation. We were advised if we refused such search, that we would be indefinitely detained.” [Complaint dated 01/26/13]
It is quite obvious that these searches violate the Fourth Amendment which says the people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Government agents must obtain a warrant based on probable cause specifically “describing the place to be searched, and the persons or things to be seized.”
But a lot of good that has done the American people. The government simply ignores those limitations on their power. They justify it based on terrorism.
The authority agents use to violate Americans’ and foreigners’ rights are directives from the Bush era, implemented after 9/11. But support for the illegal intrusions goes all the way to current top government officials, according to the Wall Street Journal.
Former Department of Homeland Security Secretary John Kelly, who left the agency last year to become Mr. Trump’s chief of staff, said during a June Senate hearing that such searches aren’t routine and conducted only when necessary…
Mr. Kelly suggested last year that border agents may even ask travelers for their social-media passwords and access to their internet browsers.
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Last week, Customs and Border Protection released the details about their new policy.
The new guidance makes clear that agents can only examine information stored on the device, not additional data in “the cloud” that can be accessed.
The policy makes clear that while agents can ask for passwords to access a device, the passwords aren’t to be retained in any way.
And the policy sets forth standards for agents to do an “advanced search,” which involves connecting the device to a computer to retrieve and copy information. Under the rules, advanced searches are allowed only if there is “reasonable suspicion” and “articulable facts” to support it, and with the approval of a supervisor. The standards for more in-depth searches hadn’t been spelled out before. No such standard exists for basic searches.
If there are reasonable suspicions and articulable facts, then why don’t they get a warrant? And what happens when an American refuses to give their passwords? Is that now a crime to exercise your Fifth Amendment right to remain silent?
Reading the complaints from interrogated travelers, a picture emerges that contradicts Kelly’s claims. He must have an interesting definition of the word “necessary” to think the behavior of agents is justified.
A U.S. citizen, a freelance journalist who writes for the New York Times and other publications, described demands by border agents at a New York airport for information about his or her reporting: “For three hours I was questioned, my notebooks and camera was taken (to make copies I assume) as was my laptop. I was asked about details of whom I met and interviewed, asked for contacts, telephone numbers, emails and I was physically searched. . . . I believe it interferes with my right to privacy and press freedom when traveling becomes a burden and security agents copy my notebooks, photographs, contacts and hard drive. . . . I would like this matter to be solved as soon as possible so I can continue my work as a journalist without being treated as a suspect.” [Complaint dated 10/18/16]
And complaints like this one are why the ACLU has filed a lawsuit alleging violations of the First Amendment in addition to the Fourth.
This illegal authority threatens the freedom of the press and chills freedom of speech. If you know the government will dig through your contacts or scrutinize your social media posts everytime you travel, maybe you will be more careful about what you say and write.
For American citizens and green card holders, it is wise to encrypt your devices before traveling. Then if you are willing to put up with the hassle and possibly hours of detainment, at least agents will walk away with nothing. If you are a foreigner, however, refusing the search may get you denied entry into the United States.
In one complaint, the man who is now a U.S. citizen, says the illegal searches and abuse he suffered under American Customs Agents took him back 29 years to when he left Syria due to similar treatment at the hands of government officials.
My sentiments echo those of one of the complaints, emphasis added.
A U.S. citizen whose family was detained and searched at the U.S.-Canada border lamented: “[M]y children grew up in America and love America but every time my kids and I get detained for no reason they start to question me and ask, Dad, why do we always get detained? They are starting to lose faith in the American system.” [Complaint dated 02/01/12]