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April 8, 2015 // 12:25 PM EST
Hundreds
of thousands of travelers cross US borders every day. And none of them—save the precious few
with diplomatic immunity—have any
right to privacy, according to Department of Homeland Security
documents recently obtained by MuckRock.
The US Department of Homeland Security’s (DHS) Privacy Impact Assessment for the Border Searches of
Electronic Devices
outlines the finer points of border officials’ authority to search the electronic devices of
citizens and non-citizens alike crossing the US border. What becomes clear is that this authority has been
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broadly interpreted to mean that any device brought into or out of the country is subject to the highest level
of scrutiny, even when there
is no explicit probable cause.
Based upon little more than the opinion of a single US Customs and Border Patrol (CBP) officer, any device
can be searched and its contents
read. With approval from a supervisor, the device can be seized, its
contents copied in full, or both.
With the exception of foreign and domestic officials with diplomatic immunity, everyone who legally crosses
a US border undergoes a primary inspection. This is a familiar routine for most travelers: A CBP official
checks your documents, glances between you and your passport photo, and perhaps asks whether you’re
travelling to the United States for business or pleasure.
Following this exchange, a traveler may be asked to undergo a secondary
inspection. If this unfortunate
traveler’s name is flagged—which it may be for a surprisingly large number of reasons—he or she almost
certainly will be.
In 2013, DHS stopped Bradley Manning Support Network co-founder David House and confiscated his
laptop, USB storage device, video camera and cellular phone. In that instance, the government settled with
House after the ACLU helped to bring a lawsuit on his behalf. Over the course of this suit, documents
obtained by the ACLU
revealed that House had been selected for additional inspection because
of a DHS
“lookout” telling agents to stop him as he attempted to enter the country.
Travelers may also be randomly selected by a system referred to as COMPEX, a somewhat unwieldy
acronym for “
Customs’ Compliance Measurement Examination.”
This system randomly chooses travelers
for additional screening. The results of these screenings are compared to screenings based on other
selection criteria in order to assess their effectiveness.
Finally, the CBP official might refer a traveler based on his or her “own observations.” This final option is a
particular cause for concern, because little explanation has been given as to what that might entail. As a
recent piece for The Intercept demonstrated, at least
one of the processes used by the TSA to flag potential
terrorists can be used to justify detaining anyone.
If you are referred for a secondary inspection, your right to privacy is essentially moot. Either a CBP officer
or an Immigration and Customs Enforcement (ICE) special agent will likely question you and may inspect
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your possessions. This can mean anything from a quick look through your
bags to copying and detaining
your electronic devices—it’s up to the agent and his or her supervisor, not due process.
The document outlines the processes necessary for each step. For example, a CBP official needs to get
approval from a supervisor before copying all of the data on your device, but an ICE special agent is
permitted to do so on his or her own authority. Neither one seems to be required to inform you.
“There is no specific receipt given to the traveler if the contents of the device are detained for further review,
but the device is returned to the individual," reads the
report. This doesn’t necessarily preclude a verbal
confirmation, but at least this document doesn’t explicitly require one either.
Finally, for the purposes of transparency, CBP and ICE create chain of custody forms to track the
possession of seized electronic devices or data. However, the document outlines a convenient loophole
under the aegis of law enforcement or national security concerns.
If your device or data is sent to an “assisting party,” a separate chain of custody form is created that is noted
in your case file but not disclosed to you. That party is required to limit its use of the data to the purpose
outlined by DHS, “unless they have separate statutory authority to retain it.”
Courts in the US have consistently upheld the government’s broad
authority to search, copy and detain
electronic devices without probably cause or reason for suspicion. By considering these devices identical to
ordinary possessions like briefcases or backpacks, border officials have greatly expanded their ability to
investigate individuals
in ways that would never be allowed within the country’s borders.
These investigations are often unrelated to issues of national security
in the traditional sense. A recent piece
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The US Gov Can Download the Entire Contents of Your Computer at Border Crossings | Motherboard
The DHS’s electronic privacy document seems to back this assertion up. In outlining when CBP or ICE
would reasonably retain information copied from a device, the DHC cited an example:
To be clear, entering the United States under false pretenses is against the law, and the CBP is well within
its rights to enforce these laws. However, using extraordinary methods put in place under the aegis of
national security to catch and prevent victimless crimes raises difficult questions.
A laptop is not a briefcase. Where a briefcase might possibly contain a
few items of note for border officials,
like weapons, drugs, or other contraband, an electronic device contains intimate details about a person’s life
and livelihood. Journalists and their devices have already been targeted, indicating that this authority is not
only abusable but is actively being abused.
These laws aren’t likely to change any time soon, but travelers to and from the US should at least be aware:
When you cross the US border, you have no right to electronic privacy.
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of 54
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TOPICS: privacy, transparency, Customs and Border Patrol, border security, politics, Department of
Homeland Security, Privacy Impact Assessment for the Border Searches of Electronic Devices, Privacy
Impact Assessment, borders, illegal search
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