CBP, ICE Have No Idea If Their Thousands Of Warrantless Device Searches Are Actually Making The Country Safer

from the so-essential-we-can't-even-be-bothered-to-justify-it dept

An ongoing lawsuit by the EFF and ACLU challenging warrantless device searches at the border has uncovered some disturbing news. The CBP and ICE have guidelines that govern these searches but they're so expansive they allow these agencies to search any device for almost any reason. We know this because it came straight from the agencies in their testimony during this case.

The government has long argued -- mostly successfully -- that the our rights as Americans (and those we extend to those entering our country) simply don't apply at the border. Why? The best the government can offer is that national security trumps the Constitution within 100 miles of any border, port, or international airport. Securing the nation apparently can't be done without violating rights, so rights will just have to be violated.

The CBP has been searching devices with increasing frequency over the past couple of years, providing plenty of ammo for court challenges. Unfortunately, none have been successful. But maybe this damning testimony showing the government granting itself all sorts of leeway might finally result in some restoration of our rights at our borders. The many details of border search policies are detailed in the EFF/ACLU's motion for summary judgment [PDF], asking the court to side with Americans and their rights, rather than exaggerated claims about the insecurity of our nation.

The CBP's policies place almost no restrictions on searches of devices. Basic searches -- which involve an agent paging through a phone's contents manually, rather than using another device to perform a forensic search -- can be done with zero reasonable suspicion.

Policy allows officers to retain devices for as long as they want. The policy says retention shouldn't exceed five days, but there is no upper limit to how long the CBP can hold onto a device with supervisory approval. The policies also allow the CBP to retain data from devices even when it has no probable cause to do so.

This information is then shared with a number of other agencies, which the CBP can't be bothered to vet.

The CBP Policy permits officers to share information retained from electronic devices with federal, state, local, and foreign law enforcement agencies. Exh. 19 (CBP 2018 Directive) at § 5.5.1.3, Bates 122. CBP does not know how long other government entities keep the information they receive from CBP’s border searches of electronic devices. Exh. 13 (CBP 30(b)(6) depo.) at 200:2–12. CBP does not monitor whether other government entities impermissibly retain the information CBP shares from border searches of electronic devices. Exh. 13 (CBP 30(b)(6) depo.) at 203:7–204:3

If the CBP wants to, it can turn over seized devices to ICE. ICE has its own policies, but it also does not need reasonable suspicion to perform a basic search. Unlike the CBP, ICE says it has up to 30 days to perform a device search. Again, this soft cap on retention can be removed by a supervisor, giving the agency indefinite possession of someone else's devices.

Unlike the CBP, ICE actually destroys info that isn't relevant to its work. But that may not matter much because ICE is also allowed to share this info with other agencies and does not make any destruction demands when its does so.

If a person has been flagged by CBP's "Automated Targeting System," the information pulled from their devices can be stored for more than a decade.

If an advanced search of an electronic device yields information that a CBP officer deems of law enforcement benefit, then the officer will copy it into ATS. [...] ATS stores copies of data from travelers’ devices, not officers’ narrative descriptions of that data. Exh. 13 (CBP 30(b)(6) depo.) at 190:10–19. ATS stores copies of data from travelers’ devices for 15 years or “the life of the law enforcement matter,” whichever is longer. Exh. 23 (CBP 2017 ATS PIA) at Bates 1037.

The number of device searches by the CBP continues to escalate, up from 5,085 in 2012 to 33,295 in 2018. These numbers are likely lower than the actual number of searches the agency performed because CBP officers aren't all that great at filling out paperwork -- something that happened to the plaintiffs in this lawsuit.

CBP determines the number of border searches of electronic devices in a given period by calculating the number of closed or completed Electronic Media Reports (“EMRs”). Exh. 26 (Defs. Interrog. Responses) at #11. EMRs are sometimes called “IOEMs.” Exh. 13 (CBP 30(b)(6) depo.) at 201:7–9. CBP officers sometimes do not complete EMRs after conducting border searches of electronic devices. Exh. 27 (DHS OIG 2018 Report) at Bates 973, 978; Exh. 13 (CBP 30(b)(6) depo.) at 248:18–249:9. For example, on August 28, 2017, CBP officers searched the smartphone they seized from Plaintiff Nadia Alasaad’s bag. Exhs. 15 & 16 (Answer and Complaint) at ¶¶ 73–74, 76. Defendants have no records, including EMRs, documenting that search. Exh. 26 (Defs. Doc. Responses) at #17.

We have to assume the same thing is happening with ICE. Unfortunately, we don't know how often ICE searches devices because the agency has conveniently decided not to track that information.

Despite both agencies claiming to be very concerned about national security and immigration law violations, a lot of what ICE does has nothing to do with either.

ICE asserts that agents may conduct a warrantless or suspicionless border search of the electronic device of a traveler: a. Who is suspected of violating tax laws, to find emails reflecting the tax law violations. Exh. 14 (ICE 30(b)(6) depo.) at 29:4–8, 31:5–12. b. Who is suspected of hiding assets in bankruptcy, to find emails reflecting the hiding of assets. Id. at 33:4–22. c. Who is an executive of a company suspected of criminally dumping toxins into a river, to find emails reflecting the illegal dumping. Id. at 31:14–23, 32:2–8. d. Who is suspected of violating consumer protection laws, to find evidence reflecting the consumer protection law violations. Id. at 32:10–33:2. e. Who is suspected of money laundering, to find emails or other evidence reflecting money laundering, including the creation of corporations and accounts and the structuring of deposits. Id. at 41:3–42:13

ICE likely searches devices for evidence of any number of criminal activities unrelated to immigration or customs enforcement. Multiple federal agencies are making use of the border exception by proxy, asking ICE to perform the warrantless searches they can't.

ICE’s decisions to conduct warrantless or suspicionless border searches of electronic devices are informed by information or requests from other government agencies. Exh. 26 (Defs. Interrog. Responses) at #17. See also Exh. 14 (ICE 30(b)(6) depo.) at 189:9–190:21, 191:18–192:3. These agencies include the Bureau of Alcohol, Tobacco, Firearms and Explosives, Internal Revenue Service, Secret Service, Federal Bureau of Investigation, State Department, state and local police departments and county sheriffs, and foreign law enforcement agencies. Exh. 14 (ICE 30(b)(6) depo.) at 194:13–201:25.

It's not just the Fourth Amendment being ignored at the borders. It's also the First Amendment. ICE testimony shows it searches the devices of journalists if they've made any contact with suspected terrorists or "foreign sources of interest to the government," regardless of whether or not the journalist is suspected of wrongdoing.

Despite a stated need to use Constitutional rights as a doormat in the interest of the greater good -- i.e., securing the nation -- neither agency can say for sure these invasive warrantless searches are actually making the country safer.

CBP and ICE do not know how many warrantless or suspicionless border searches of electronic devices uncover digital contraband. Exh. 26 (Defs. Interrog. Responses) at #13; Exh. 13 (CBP 30(b)(6) depo.) at 68:10–14; Exh. 14 (ICE 30(b)(6) depo.) at 44:25–45:7. CBP and ICE do not know how many warrantless or suspicionless border searches of electronic devices uncover potential evidence of criminal activity. Exh. 13 (CBP 30(b)(6) depo.) at 68:15–20; Exh. 14 (ICE 30(b)(6) depo.) at 338:18–24. CBP does not know how many warrantless or suspicionless border searches of electronic devices result in prosecution or conviction. Exh. 27 (DHS OIG 2018 Report) at Bates 982. ICE does not know how many warrantless or suspicionless border device searches result in criminal arrests or indictments, or referrals to other law enforcement agencies. Exh. 36 (ICE/HSI Priority Requests) at Bates 93.

This is the tradeoff: we lose our rights and, in return, we get a shrug. It's time for the judicial system to stop cutting the federal government so much "national security" slack.

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Filed Under: 4th amendment, cbp, device searches, ice, record keeping