Phone Searches Now Default Mode At The Border; More Searches Last Month Than In All Of 2015

from the [Oprah-voice]-YOU'RE-GETTING-A-PHONE-SEARCH!-AND-YOU'RE-GETTING-A-PHONE dept

The Constitution -- which has always been malleable when national security interests are in play -- simply no longer applies at our nation's borders. Despite the Supreme Court's finding that cell phone searches require warrants, the DHS and CBP have interpreted this to mean it doesn't apply to searches of devices entering/leaving the country.

For the past 15 years, the government has won 9/10 constitutional-violation edge cases if they occurred within 100 miles of our borders -- a no man's land colloquially referred to as the "Constitution-free zone." But the pace of device searches has increased exponentially over the last couple of years. The "border exception" is no longer viewed as an "exception" -- something to be deployed only when customs officers had strong suspicions about a person or their devices. Now, it's the rule, as NBC News reports.

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016. According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.

Given the current state of immigration policy, this will get a whole lot worse before it gets better… if it ever does. Expanding government power is easy. Contracting it is almost impossible.

In practical terms, boots-on-the-ground travelers are being subjected to intrusive searches just because there's nothing effectual in the law to prevent it. Asserting your rights at the border is a non-starter. You simply don't have any. No one's going to be playing Twenty Quasi-Relevant Questions with travelers hoping to luck into consent. Officers and agents are seizing and searching devices by force.

A couple who had traveled to Canada twice in a period of three days were subjected to invasive device searches both time. The second time much more force was applied to ensure compliance. Three days later, they returned from another trip to Canada and were stopped again by CBP. "One of the officers calls out to me and says, 'Hey, give me your phone,'" recalled Shibly. "And I said, 'No, because I already went through this.'" The officer asked a second time.. Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend's face turn red as the officer's chokehold tightened. Then they asked McCormick for her phone. "I was not about to get tackled," she said. She handed it over.

The coercion doesn't have to be a chokehold. It can just be the fact that government agents stand between you and your home and aren't willing to let you get back to the part of the country where your rights still exist without you handing over PINs and passwords.

On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport's lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel. "They said if I need a lawyer, then I must be guilty of something," said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.

This is how certain government agents and agencies view constitutional rights: as luxuries only needed by people with something to hide. This mindset -- combined with Trump's "gloves off" approach to immigration enforcement -- helps explain the 5,000 device searches in the last 30 days. Device searches were always considered intrusive, despite the Constitution-free aspect of US borders. These were saved for criminal suspects and watchlisted travelers. Now, it's everyone.

The only good news to come out of this is a potential change in applicable laws. Sen. Ron Wyden is introducing a bill to create a warrant requirement for device searches at the border. Unfortunately, it's being introduced into an ecosystem now streamlined to reject affirmations of existing rights. If it somehow makes it to the President's desk without being amended into uselessness, there's almost zero chance Donald Trump won't veto it. Given the current makeup of Congress, it's unlikely there's enough support for a bill that might give "bad hombres" more rights to override a veto.

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Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, dhs, privacy