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.”

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