ACLU Asks CBP Why It's Threatening US Citizens With Arrest For Refusing Invasive Device Searches

from the I-assume-'because-fuck-you,-that's-why'-is-the-answer-we'll-be-g dept

Just a reminder this is the sort of thing that is happening at our borders with exponentially-increasing frequency.

The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop. This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.

Because I was uncertain about my legal responsibilities to my employer, I asked the agents if I could speak to my employer or an attorney before unlocking my devices. This request seemed to aggravate the customs officers. They informed me that I had no right to speak to an attorney at the border despite being a U.S. citizen, and threatened me that failure to immediately comply with their demand is a violation of federal criminal code 18 USC 111.

Those are the words of Andreas Gal, Apple engineer and outspoken defender of online privacy. Gal is a US citizen, not that you’d know that from the treatment he received from the CBP. Gal also has “Global Entry” status, which provides “expedited clearance for pre-approved, low-risk travelers upon arrival in the United States.”

Global Entry is the CBP’s version of the TSA’s Precheck program. In both cases, the federal government is willing to respect a bit more of your rights in exchange for a lot of personal info and a bit of cash. You can see how well that’s working out for Gal, who was told he could not speak to an attorney and would be arrested if he did not allow agents to search his devices. In addition, he was told his Global Entry status would be revoked and was only allowed to exit the CBP’s custody by leaving his devices behind so the CBP could search them at its leisure.

The ACLU has lodged a formal complaint [PDF] with the CBP, demanding answers for its refusal to treat an American citizen like an American citizen.

CBP must ensure that its officers comply with the U.S. Constitution. Even at the border, the search of an electronic device is governed by the Fourth Amendment. To satisfy Ninth Circuit and Supreme Court law concerning electronic searches, any such search should be based on a warrant and be limited in scope to information relevant to the agency’s legitimate purpose in conducting the search. The attempted unconstitutional search of Dr. Gal’s devices illustrates that CBP’s policies do not in fact include the requirements necessary to safeguard the constitutional rights of people at the border.

The CBP has been given a lot of latitude to perform extensive searches at the border. But officers still need reasonable suspicion to demand US citizens unlock their devices for examination. Sadly, there’s still no warrant requirement at the border, even after the Supreme Court’s Riley decision. Multiple courts have held that securing our borders from threats like privacy advocates and Apple engineers is more important than respecting the rights the Founding Fathers said we were guaranteed.

The ACLU’s complaint letter suggests another complaint is on its way to a federal court.

There was no basis for Dr. Gal to be detained and interrogated by “TTRT” officers with special training in “counterterrorism response.” Dr. Gal entered the United States as a holder of Global Entry status, available only to “low-risk” individuals. And Dr. Gal has been an entrepreneur, technologist, and public figure for decades. Designating Dr. Gal for interrogation by “TTRT” indicates that Dr. Gal was targeted because of his exercise of his First Amendment rights in expressing viewpoints that may be disfavored by the federal government.

Compounding violations is never a smart move, but courts have handed so much Constitutional slack to border agencies, it will be tough to step over the pile of ignored rights to secure a victory. But every challenge edges us closer to a decision that may finally find the federal government isn’t free to ignore rights its supposed to be protecting just because there’s a border involved.

(Hat tip to Techdirt Insider Jeffrey Nonken who dropped a link related to this story into our Insider Chat. And a hat tip to all the Insiders in the chat who are always dropping useful and interesting links into the sidebar of this site!)

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Comments on “ACLU Asks CBP Why It's Threatening US Citizens With Arrest For Refusing Invasive Device Searches”

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David says:

Re: The constitution either applies everywhere or nowhere

Well, you cannot really expect the full scope of U.S. citizenship rights to apply if you are travelling to terrorist training camps. And clearly any part of the world not carrying Fox News is a terrorist training camp. That’s why we need to close the borders before Mexicans take over Taco Bell.

digitari says:

Re: Re: Re:2 The constitution either applies everywhere or no

yes cause CNN and MSNBC are so full of……. innuendo…… OMB OMB!! only 6 more years….

I’m voting for Trump, not because he is the best candidate, he is the best at pissing you guys off. if ya’ll didn’t get so worked up, we wouldn’t be voting for him

That One Guy (profile) says:

Re: Re: Re:4 The constitution either applies everywhe

Fun potential though, because I gotta tell you if there’s one thing that really gets me worked up and pissed off it’s idiots slamming their hands in doors repeatedly, in between slapping themselves in the face with a rotten fish.

If someone were to do that it would just really annoy me, driving me straight up the wall in fact, so unless someone were inclined to do things simply to annoy other people they’d better not do that

Anonymous Coward says:

Re: Re: Re: The constitution either applies everywhere or nowher

I see people are piling on here to make some conservative vs liberal point. You made a perfectly good point that everyone should be concerned with. I don’t know your history here or even if you have one. But a valid point by anyone is still a valid point. The ACLU goes off the rails sometimes and I’ll be the first to criticize when they do, but they’re right on this one. Unfortunately, your comment was used to promote the "oh noes! Right-wing nut jobs who watch Fox News, y’all!" Followed by a non-sequitor like "terrorist training camps".

Thad (profile) says:

Re: Re: Re:2 The constitution either applies everywhere or no

You made a perfectly good point that everyone should be concerned with.

This is the entirety of the post you are responding to:

This is what happens when you try to be funny, but aren’t. I have no idea what you’re trying to say.

What "perfectly good point that everyone should be concerned with" are you claiming that that post made? If it’s that posters should be clearer about what they’re trying to say, yes, that is good advice, and maybe you should take it.

Anonymous Coward says:

Re: The constitution either applies everywhere or nowhere

I would seriously object to the US idea that the US constitution is fully applicable all over the world, as that would interfere with the independence of all other countries in the world.
I can accept that the US constitution applies world-wide to the relation between US citizens and US government and that the US constitution applies to all of US territory. The concept of "rights-reduced border zones" seems pretty unconstitutional to me.

Anonymous Coward says:

Re: Re: Re: The constitution either applies everywhere or nowher

100 Miles is subjective. That depends on whose tape measure is used. It won’t surprise most of us here to see 100 miles extend coast to coast where unconstitutional rulings seem to be an everyday occurance in this country. And what is all the tight lipped portraits on our money about? Are they hiding something? Especially, Ben Franklin.. what is up with you, dude?

Sok Puppette says:

Re: Re: The constitution either applies everywhere or nowhere

The US Constitution applies to actions of the US Government everywhere in the world. Including in its relations to non-US citizens. The US Government doesn’t even exist without the constitution.

That doesn’t give it any power to run non-citizens’ lives, or even to run US citizens’ lives when they’re outside of the US. It’s only the government of the US and is granted power to govern only within the US. Unfortunately that’s not made very explicit, probably because it’s so damned obvious, and anyway the question of pushing people around on the other side of the world would have seemed far-fetched in the 18th Century.

The constitution does prevent the government from doing things like unreasonably searching non-US citizens outside of the US, or limiting their rights to speech, or just fucking shooting them outright. The constitution explicitly restricts the government from doing those things at all, so that applies to anybody, period, anywhere, for any reason.

Without the constitution, the government doesn’t even exist. The constitution grants it powers within the US, because it’s only the US government, but the constitution limits its powers everywhere, becuase it’s just plain not supposed to be the kind of organization that does certain things.

Unfortunately, the US courts have gotten those obvious points backwards, and tend to take the view that the government has power everywhere, but limitations only in the US. That’s doesn’t mean you want to give up the point and concede that the government’s actions outside the US have no limitations.

Wyrm (profile) says:

Re: Re: Re: The constitution either applies everywhere or nowher

The way I see it, it can be summed up in this way.

Does the US government has jurisdiction in the matter and place of a given case?
If so, its constitution applies, no ifs and buts.
If not, it just has no right to demand anything. It can ask politely, without threat. That’s all.

Carving exceptions is just a way to reduce the limitations that were put in place to avoid it turning into a dictatorship.
If the citizens let it get away with it, it will carve new exceptions until the Constitution doesn’t apply anywhere anymore.

Remember the quote about democracy and everlasting vigilance? This is what it is about.

taco mexican infant says:

border taco's are real

suck shit american so called hero drilled egg cucumber.
change the babylon inspired literal liars and whores or suffer the extreme fate that the god you worship so much has in store for you and yours. extreme fate married to extreme defeat and carnage. rock solid lust inspired souless hellish nightmarish existence.

signed american taco infanticide.

Anonymous Coward says:

It’s called mission creep. The idea that travelers can be exposed to more and more abuse and ‘interrogation’ just because inspectors have done it a thousand times and what’s one more time with a little deeper check?

Plus the idea that they would not want another traveler standing up and saying ‘I’m an America and I have rights’.

It is evident that the crisis of 9-11 was not wasted when it comes to doing something. What’s been done seems to get worse and worse when it comes to removing constitutional rights from citizens is evident more and more as days go by.

Anonymous Coward says:

Re: Re:

This particular situation comes down to poor training and management of the agents involved. When a US citizen pushes back because they know their rights, these people just dig in deeper and get offended because their authority has been questioned. Threats of arrest start flying around and it just gets worse, rather than cooler heads coupled with common sense prevailing. It’s unfortunate that some people have been made to be so afraid that they acquiesce to any and all demands, unreasonable (and even illegal) as they can be.

In this situation this gentleman had resources to go to and make a stink about it. Not many people would even know what do to but offer up their private information under threat. It’s simply wrong.

Anonymous Coward says:

The "legacy privacy" industry wants human behavioral data to be kept under lock and key in the minds of the people engaging in the behavior, at the cost to society of learning how we think and act. Privacy in LIMITED form is fine, but after a brief period everything we do, say, or think should wind up in the public domain, and because we don’t have this "better business model," the government has turned to piracy. It’s our fault for not letting them have the data, not theirs for stealing it.

Stephen T. Stone (profile) says:

Re: Re:

Just because YOU fear what the government might do, or think you can change it, doesn’t require ME to care.

On a long enough timeline, what the government does will affect you. Best to care now, when you still have a chance of fighting against the bullshit, than when you are buried up to your neck in said bullshit and can do nothing about it.

Bruce C. says:

Re: Re:

We’re definitely in the oligarchic phase of "meritocracy begets oligarchy". People went crazy when Obama mentioned "redistributing wealth" soon after his election. But this kind of crap is what happens if you don’t have a way (like inheritance taxes) to redistribute wealth and power.

Tin-Foil-Hat says:

Sigh, we've been on this path for a long time

There is really no disincentive to inadvertently or intentionally violate constitutional rights. Legislators have been doing this forever, knowing that any court challenge will be a long time coming. If it gets them reelected AND furthers a personal agenda then it’s a win/win with no consequences. It started slowly but alas, will be business as usual very soon. We’ll be fully in league with other authoritarian, democracy-in-name-only, junta and surveillance states. One foot has already crossed the threshold and now the other has followed: Ignoring court rulings. What is anybody going to do about it? Like a serial killer’s first murder the rest become routine. This is the path of the United States and the few, mostly diluted rights we have left. The killings have begun.

Briank says:

same exact experience

I had the same thing happen my first trip to Canada 2 years ago. I have traveled to Europe/UK and have never had an issue. 2 years ago I went to Canada and had a horrific experience. I had traveled with my work laptop (I’m a WFH dev), my iPad (for movies) my cell phone and my work cellphone. I was stopped at customs and told that I had a criminal record and subject to search. I have no criminal record. I had access to the court documents showing that the charges were dropped and the arrest expunged because of mistaken identity. so I assumed that was the case again, mistake so I provide proof that wasn’t me. I was put in for ‘additional screening’ and the exact same thing happened. I was told to unlock my devices, I unlocked my personal phone and iPad and said that I couldn’t unlock my work devices since the RSA keygen and other access/private data was on them. I was greeted with the same VERY angry hostile response. A supervisor was called in and immediately told me that if I didn’t unlock in the next 10 seconds that I would be going to jail for obstruction and my devices would be confiscated. I asked for a lawyer or even the law that permitted this and I was cited nothing other than "that’s not our responsibility to educate you" and a dramatic countdown from 10 that including 3 officers approaching me 1 putting on rubber gloves and another pulling out handcuffs. they spent 2 hours going through my devices with a fine tooth comb. Opening literally every app on my phones, accused of being a pedophile (beach pictures of a family gathering that was mostly the kids playing ) and accused of being a sex trafficker (my fiance is 15 years my Jr and Filipino, I am a white male over 40 )

they spent 3 hours with 4 agents, 1 being the supervisor scouring EVERYTHING on my devices and online/social media accounts. Facebook, google photos for 10 years, years of text messages, emails, stock history, app messages, work, and personal emails. Everything and I was grilled about so many personal interactions I had in the past it was emotionally devastating to relive so many bad memory’s (ex’s, deaths, losses) accusations of so many nefarious activities (pedophile, trafficker, drug addict, alcoholic thief, conman, insurance fraud. money launder ) then after all this and grilling me for hours I was let go an on my way into Canada without even the slightest apology and a stern warning to never challenge them again at the border or I would be taken straight to jail.

I’m a basic white boy from suburbia, Michael Bolton from office space basic.

Now when I travel I have a spare phone and tablet I take with me that is only used for travel, logged into nothing.

craterglass says:

Which is it?

"CBP officers eventually allowed Dr. Gal to leave with his devices but a CBP officer took Dr.
Gal’s Global Entry card and told him his privileges would be revoked." ACLU complaint, pg 4, emphasis added

"In addition, he was told his Global Entry status would be revoked and was only allowed to exit the CBP’s custody by leaving his devices behind so the CBP could search them at its leisure." Techdirt article text


nasch (profile) says:

You can see how well that’s working out for Gal, who was told he could not speak to an attorney and would be arrested if he did not allow agents to search his devices. In addition, he was told his Global Entry status would be revoked and was only allowed to exit the CBP’s custody by leaving his devices behind so the CBP could search them at its leisure.

This is banana republic crap. It’s infuriating that courts have decided the government can ignore the constitution.

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