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

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94 Comments
Anonymous Coward says:

Re: Re: Wiping phone

…use a copy of the U.S. Constitution, it apparently has no value otherwise

So the Courts, Presidents, and Congress will not obey the 4th Amendment nor Constitution (?) And Ron Wyden, who has accomplished nothing in last 45 years, is our primary hope of justice ??

How’s that NCAA March Madness lookin’ ?

Serfs need not worry about their rulers’ rules

That One Guy (profile) says:

Re: Wiping phone

If you have to come to the US and have to have a phone I’d suggest picking up a cheap, temporary one before entering the US. It might get you flagged as ‘suspicious’ to bring a ‘new’ phone, but if they’re that interested in you you were probably screwed anyway, and if they do search/steal/destroy it there won’t be anything for them to find.

(As an aside it just struck me, again, how insane it is to be recommending that people avoid an entire country, and telling them that if they absolutely have to go there to expect the absolute worst and prepare accordingly. Ah the insanity that is the current USG…)

peter says:

Re: Re: Wiping phone

My company forbids taking any computer other than a totally fresh install that has never been connected to the company network, and a completely ‘virgin’ phone (i.e. a new number that has not been used by an employee before and you are not allowed to use it before you go)
It has actually become easier to travel without any electronic devices, purchase new when over there and just throw them in the bin when leaving.

sorrykb (profile) says:

Re: Wiping phone

If you’re a U.S. citizen? The answer appears to be officially, legally, probably, no. Maybe. Unless CBP feels like it.

https://www.aclu.org/blog/free-future/can-border-agents-search-your-electronic-devices-its-complicated

We can hope that maybe someone who is not in a vulnerable position (wrt citizenship, employment, family, finances, or anything else) is able/willing to challenge this in court.

But we know (1) the people most likely to be targeted for abuse are the people worst equipped to fight back and (2) there’s no guarantee a court challenge would prevail.

This is all such bullshit.

sorrykb (profile) says:

Re: Re: Wiping phone

I’ll be traveling internationally next month. I don’t plan to wipe my phone or use a disposable phone. (My phone doesn’t have anything especially sensitive on it. And I’ll be logging out of all apps etc.)

I also have no plans to surrender my password to CBP. (Easy for me to say now, I know. I hope I’d manage to commit to that when confronted with the possibility of my phone being seized and me being detained for a day or two.)

But then I have the privilege of knowing that I’m unlikely to be targeted by CBP in the first place, not because of any special virtue I have, but simply because of my name and my appearance. Others aren’t so fortunate.

Anonymous Coward says:

Re: Obligatory reminder for persons outside the US

“The US strongly discourages legal immigration.”

This is definitely true, because I have a friend who has been getting fucked over by the process for more than 30 years now.

Conversely.

“The US strongly encourages illegal immigration.”

The system needs fixing, but the illegals need kicking!

Anonymous Coward says:

Used to live near the border in the North. The rules are so randomly enforced its hard to believe people even have to stop.

Our towns school regularly went across the border with busloads of kids, all their supplies and mentors/coaches to events in Canada. All we did was make a phone call and the bus and everyone in it was waved thru both on the Canadian side and the US side. The Customs agents were usually very nice and professional, the Border Patrol acted like they were full fledged police protecting the citizens of the US from a full scale invasion.

Luckily the school had a staff member that was related to one of the customs management and they usually dealt with everything for us. The Border Patrol really do act like they are gods right hand men. I have respect for customs, none for the border patrol.

Anonymous Coward says:

Re: Re:

How long ago was this? In the 80’s, I used to cross the border (both CA and MX) without anything more than a hand wave.

Now I have to stand in line and figure out what items of clothing/electronics/etc. are required to be in what bag/bin at this border crossing and nervously watch my passport as it leaves my hand and goes who-knows-where before being reluctantly returned to me.

That said, I agree that customs is rarely a problem; US border patrol is the big man in the show, followed by TSA employees. Sometimes the immigration desk can be an issue, but they usually call USBP or TSA to do their dirty work.

Anonymous Coward says:

Re: Re: Re:

I remember back in 1988 while I coming home from living in Arizona, and passing through Sad Diego so I visited my brother in College at San Diego State back then, and one night we walked over the boarder into Mexico and Walked back out of Mexico that night from Tijuana. I didn’t have to stop or show anything either direction.

It’s gotten worse over the years, especially once Passports were required. Still the U.S. has no right to go searching anyone electronic devices. I bet after all these many times, not a single Terrorist anything has ever been found. Really, who would be that dumb? Our rights have been taken away from us year after year and people have kept quite. It’s all in the name of Child Protections or Terrorists and BOOM, you lose a few more rights. Until at such time it’s something YOU care about and then it’s to late.

Bergman (profile) says:

Re: Re: Re:2 Re:

The United States has five general tiers of laws. Each tier overrides the tier below it if the two conflict, unless a higher tier specifies how the conflict should go.

A town ordinance is below a state statute, a state statute is below a federal statute, a federal statute is below a state constitution within that state, a state constitution is below the federal constitution.

If anyone at any level decides the laws don’t apply to them, that person is a criminal. If the only reason a federal agency can ignore federal laws is they have the power to squash anyone who complains, then we have might makes right, not the rule of law.

In a might makes right system, if you can kill someone it’s not murder because your might makes you right. If the feds have gone rogue, what reason is there for anyone to obey any law?

k says:

Re: Re: Re:3 Re:

You’ve got that hierarchy wrong. The 4th item should read, a state constitution is below a federal statute.

From the first paragraph in article 6:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Roger Strong (profile) says:

Re: Re:

All you have to do is touch US soil and your out of that grey zone, if your a US Citizen.

That’s correct. Once you cross the border and touch US soil you’re out of the grey zone. It becomes black & white: You must let them search your phone. That’s the point of the "Constitution-free zone." Refuse, and you face detainment and violence.

As for encrypting your phone, Techdirt has reported on one suspected criminal who has now many months in jail for refusing to unlock his phone, based on the suspicion of incriminating evidence on it. And that’s without being in a "Constitution-free zone."

Primo Geek (profile) says:

Re: Re: Re:

To be clear – you must hand your phone over and they can inspect it. However, if you are an American citizen, you are not required to provide the password. They can hassle you, detain you for a while, intimidate you, and use a forensic phone imaging unit like Cellebrite to try to bypass the lock but they can’t force you to turn it over. They also can’t “jail” you because that would involve handing you over to federal authorities for not violating a law that doesn’t exist. They can just make your life miserable for a while – but it is your choice.

Roger Strong (profile) says:

Re: Re: Re: Re:

They can get a court order for you to unlock your device. And when you refuse they can find you in contempt and jail you until you fully comply with the order.

Techdirt: The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption

Sixteen+ months and counting in jail. And that’s without a Constitution-free border zone involved.

Anonymous Coward says:

Re: Doesn't matter.

They bypass all of that and make a copy of the information on the phone itself. Then the copy can be stored until Quantum computers can crack it in moments along with the millions of others that are awaiting the same fate. Don’t forget, now all of the federal agencies share data to ensure all crimes can be properly prosecuted. This has been brought to you by Carl’s Jr. Don’t forget to try the KICKASS FRIES.

Roger Strong (profile) says:

Re: Only criminals invoke their rights, eh?

Attorney General Edwin Meese explained why the Supreme Court’s Miranda decision (holding that subjects have a right to remain silent and have a lawyer present during questioning) is unnecessary:

“You don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”

– U.S. News and World Report, 10/14/85

That One Guy (profile) says:

Re: Re: 'We in the legal system do not make mistakes. Ever.'

"You don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect."

Talk about the kind of mindset that ensures a steady stream of incarcerations, and to hell with that whole ‘innocent until proven guilty in a court of law’ rot.

"You’re under investigation, therefore you’re guilty, therefore your rights don’t matter, as those are to protect innocent people, and if you were innocent you wouldn’t be under investigation, therefore those protections don’t apply to you."

Enough circular reasoning to make anyone dizzy.

Roger Strong (profile) says:

Re: Re: Re: Only criminals invoke their rights, eh?

Really? Have you seen the crap that other Attorney Generals like John Ashcroft and Alberto Gonzales pulled on the torture / domestic spying / corruption front? Think Jeff Sessions will be any better?

Republicans won’t appoint an Attorney General unless he actually wipes his ass with the Constitution.

TheResidentSkeptic says:

Even though I am a US Citizen

I was Born and Raised here to US Citizens. My father fought in WWII, Korea, and China.

I still travel with a burner phone and laptop. I will NOT risk my real phone or computer at any border. All my files are on MY server running in MY home. Nothing in the cloud. I carry a secure USB stick with the Bill of Rights and Constitution as the only files on it. Just to piss ’em off when they ask for it to be unlocked.

And here I thought American Servicemen fought against “Papers Please” countries. Now we are one.

Anonymous Coward says:

On my next trip, I’m going to travel with a usb stick encrypted with Veracrypt and protected with a trivial password. Maybe it’ll take a week to crack. On that stick will be a text file which reads: “Fuck you, CBP”. My phone will also be encrypted with an impossible password, mailed to a friend, for pickup when arriving home in the U.S. I have no family and I’m independently wealthy. I’ll make it my mission in life to fuck with the authorities. If they grab me at the border, watch for me.

sorrykb (profile) says:

Re: Re:

I have no family and I’m independently wealthy. I’ll make it my mission in life to fuck with the authorities. If they grab me at the border, watch for me.

If you’re independently wealthy and would like to help other people who aren’t, you could file suit (but while at the border/around CBP, act in a way that makes your suit more likely to succeed).

Or you could just fuck with the authorities. But that doesn’t help anyone else who isn’t wealthy, who might be subject to violence based on their background, who has family, or who is otherwise vulnerable.

Anonymous Coward says:

regardless of which government is in control, the USA wants to know everything about everyone, including it’s own citizens, even when on USA soil, as long as no one can find out anything about it or the members or anyone to do with any of the security services! the really worrying thing is that the USA thinks it has the right to carry out the same searches in every other country worldwide, but also has the right to deny any other country the same right of access to USA citizens data. in other words, it still thinks it’s the no 1 in the world with the right to fuck who it wants at any time for any reason but no one else has any rights at all! the old bully boy attitude not only still there but even larger since Trump took over!!

Anonymous Coward says:

How long until

How long until some activists start putting a USB killer inside their “phones” and incapacitating the data readers CBP uses? It doesn’t seem hard to change the electronics to fry their reader after a few seconds, and the device is only about $50.

Destroy all their data readers as a form of civil protest.

Anonymous Coward says:

Re: How long until

Destroy all their data readers as a form of civil protest.

But first put up a plausible refusal to let them read the device at all. Surrender it before they get too serious, but give them the chance (if they were wise enough to take it) not to plug in the circuit killer. "I don’t consent to this search. I disagree with your decision to read it, but will not interfere if you attempt to read it without consent."

Anonymous Coward says:

Re: How long until

Hmm I wonder if it would be technically legal to create complete schmuck-bait. Openly admit to them that it isn’t a real phone – just a USB fryer disguised as one. They’ll take it as sarcasm and those devices aren’t technically illegal and you did warn them exactly what it would do.

I’ll take “How to get Border Agents fired” for 300 Alex. Probably wishful thinking though sadly.

Anonymous Coward says:

Re: Re: How long until

“I’m telling you you don’t really want to look at what’s on this phone!”

“Really? I’ll be the judge of that!”

“I’m warning you right now, that phone has dangerous stuff on it!”

“Give me that phone! Here, let me plug it in right here…what’s that clicking…OH, SH……….!!!!!”

Anonymous Coward says:

>Openly admit to them that it isn’t a real phone – just a USB fryer disguised as one.

No need to be quite so blatant.

“It’s not a phone, it’s a _spare battery_.

“No, I can’t turn it on. I can only connect it to a _compatible device_ via a custom USB port.

“No, I do not consent to your downloading files from it without a warrant.

“I cannot guarantee that a non-compatible device can read ROM or Flash devices on it. If you don’t have a Multics-compatible file system, I believe that you will not be able to access any files stored on this device.

(There’s a hidden compartment inside, containing a micro-SSD card. The battery is wired to release the magic smoke from a standard USB port.)

Afterwards:

“DUH! It’s a BATTERY. Do you people not have batteries here? It was a battery before, like I said before; it’s still a battery. It can’t stop being a battery.

“It contains ENERGY in the form of ELECTRICITY. Does you people not know what ELECTRIC means? It spills down wires….

“Oh, what’s the use? Look, just pay me for my battery and we can all go about our business….do you have a business or do you just stand around looking for lamp sockets to stick your tongue in?

“Mutter, mutter … bringing in illiterate islamic peasants would raise the average IQ of this place…

Anonymous Coward says:

Freedoms lost are seldom recovered

How long has this been building now? How many stories do we need before we get the message? They chip away at our rights slowly and we all get mouthy in some comment section but never angry enough to take action – that’s for someone else to do, right?

You want change? Speak the only language they understand: money. Boycott travel, our own self-imposed travel ban. Not for work, not vacation, nada… Grind them to an economic halt and make sure they know why. Some will be fired or have to vacation locally but those are small prices to pay if we get back a single freedom peacefully. I haven’t flown since the TSA became a thing because I fucking refuse to voluntarily give up my dignity as a human.

David says:

You need to see the good side of it:

Americans’ freedoms may be tampered with 20 times more often than in 2015 now, but on the flip phone side this makes it 20 times less likely to die a violent death in the U.S.

I’m actually not sure that those device searches aren’t actually saving lives because of people increasingly choosing to leave all their devices with incendiary Lithium ion accumulators at home rather than let them get strip-searched at the border.

These days they are more likely than terrorists to bring down a plane.

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