CBP And Local Law Enforcement Are Mixing And Matching Surveillance Gear To Skirt Already-Minimal Constitutional Protections

from the this-land-is-my-land-this-land-is[needle-scratch] dept

The border is expanding. What normal people would consider a border -- the physical and political barriers between countries, sometimes protected by walls and checkpoints -- isn't what the US government considers a "border." In this country, the "border" covers 100 miles inland from any border crossing. And that's not just border border crossings. That's any international airport as well.

Consequently, the "border" encompasses a large percentage of the US population. This isn't just a weird fact. It's actually means there's a whole lot less "America" than people think. The rights enshrined in the Constitution just don't mean as much at the border, where courts and Congress have given the federal government permission to engage in suspicionless searches and warrantless detentions.

But that's not the only threat to personal liberties. More than CBP personnel wander far inland to perform border security work. The CBP's drones -- an expensive waste of time according to its Inspector General -- have been lent out to a number of local law enforcement agencies, turning the CBP's eyes in the sky into everyone's eyes in the sky… even if these agencies aren't specifically in the border security business.

And it's not just drones. It's everything. Law enforcement agencies near the border are deploying a vast array of surveillance technology. The rules are already pretty much broken in the "Constitution-free zone," so why not make the most of it? The EFF and a group of journalism students have been tracking surveillance use by law enforcement agencies in the Southwest. The results of this investigation, reported on here by Sidney Fussell for The Atlantic, are more than a little alarming.

In southwestern communities near the U.S.-Mexico border, the team recorded nearly 230 instances of local police deploying advanced technology: facial-recognition software, cellphone-tracking “sting ray” towers, real-time crime centers, license-plate cameras, gunshot-detecting acoustic-surveillance devices, drones, and spy planes. These devices reveal where people travel, as well as whom they call, text, and visit. The tools can also identify people without their knowledge or consent.

There are drones overheard and nearly everything else imaginable on the ground. If you live anywhere near a border, chances are you've been swept up in more than one database. The government -- all levels of it -- has a good idea how a lot of people it doesn't suspect of any wrongdoing live their lives.

With this plethora of spy gear comes ample opportunity for screw-ups. Facial recognition tech is unproven and unreliable. Stingrays collect it all and let the government sort it out, all while possibly disrupting phone service. ALPRs generate maps of people's movements while serving up the occasional false positive. And an indefinite amount of cameras allow law enforcement personnel to draw faulty inferences about activities being witnessed miles away through a magic box that provides moving pictures but no context.

A mesh network of surveillance gear operated by dozens of unrelated agencies allows for a certain Constitutional fluidity, as Fussell points out.

Mixing and matching technology in this way provides law enforcement with certain loopholes. Police need a warrant before placing a GPS tracking device on your car, for example, but not for querying an LPR database for a list of all your locations.

The CBP may be forbidden from searching certain databases, but it can always ask those with permission and access at other agencies to perform proxy searches. ICE does this all the time, despite its access to vast amounts of public and private information. If local agencies don't have the tech or jurisdiction for certain activities, they can ask CBP to return the favor. Coordination between federal and local law enforcement sure sounds like a good idea, but it can often be a way to bypass restrictions meant to protect citizens from their government.

Even when the rules are clear and agencies aren't using each other to skirt them, the rules are still broken. The Texas Department of Public Safety has used CBP drones to surveil unlikely targets like hospitals and community centers, using the excuse it was looking for tunnels used by drug smugglers. The CBP trespassed on a rancher's property to install its surveillance cameras. And the CBP is forbidden from sending its drones into Mexican airspace, but it still does regularly.

The steady erosion of rights near the border is deliberate. Every new tech toy is deployed far ahead of explicit permission or privacy impact paperwork. Many Constitutional violations are waved away with invocations of national security concerns. The federal government frequently argues in court the diminished rights near the border should be further diminished in the interest of public safety. The only question seems to be whether something can be done. Rarely does anyone ask if it should.

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Filed Under: 4th amendment, border exception, border security, cbp, law enforcement, surveillance