2009 DHS Document Says Border Patrol Can Search/Copy The Contents Of Your Device Just Because It Wants To

from the all-about-that-privacy-you-won't-be-allowed dept

FOIA clearinghouse MuckRock has scored another revealing document, this time from Customs and Border Protection. As we're well aware, the US border isn't technically considered to be part of the United States, at least not as far as the Constitution is concerned. All bets are off, 4th (and others) Amendment-wise. If you're traveling with anything -- whether its a vehicle, suitcase or laptop -- expect it to be searched.

What MuckRock has obtained is the DHS's Privacy Impact Assessment of the CBP's search policies. The only thing seen of this near-mythical document to this point has been a two-page summary of the report's contents, released nearly three years after its border search policy went into effect.The assessment basically says privacy will be severely impacted… and not much else. To do otherwise is to open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers... at least according to the talking points. If you're none of the above, you're not exempt from in-depth warrantless searches of your person and belongings, including laptops and other electronic devices.

Based upon little more than the opinion of a single US Customs and Border Patrol (CBP) officer, any device can be searched and its contents read. With approval from a supervisor, the device can be seized, its contents copied in full, or both.
These opinions, also known as "gut feelings" and "mental coin tosses" (the latter extremely popular with the TSA's Behavioral Detection Officers), are all it takes to initiate a very intrusive search.

Part of this we can blame on the courts and their deference to national security fears.
Under DHS authorities to conduct border searches, travelers' electronic devices are equally subject to search as any other belongings because the information contained in them may be relevant to customs and immigration inspection processes and decisions. While the terms "merchandise" and "baggage" are used, the courts have interpreted border search authorities to extend to all of a traveler's belongings, including electronic devices and the information in such devices.
Beyond the hunches that trigger warrantless searches of electronic devices, the CBP also has the authority to demand travelers translate foreign languages and/or decrypt files.
Demand for Assistance: During a border search, ICE and CBP have specific statutory authority to demand assistance from any person or entity. For searches of electronic devices, CBP or ICE may demand technical assistance, including translation or decryption or specific subject matter expertise that may be necessary to allow CBP or ICE to access or understand the detained information.
In some cases, travelers will be notified that their device has been searched. In others, the CBP and ICE will withhold this information from the person who owns the searched device. This includes cases where the agents image the entire contents of the device in order to perform a search later. In fact, in most cases where this is done, the person is cut out of the informational loop.
Instead of detaining the electronic device, CBP or ICE may instead copy the contents of the electronic device for a more in-depth border search at a later time. For CBP, the decision to copy data contained on an electronic device requires supervisory approval. Copying may take place where CBP or ICE does not want to alert the traveler that he is under investigation; where facilities, lack of training, or other circumstances prevent CBP or ICE from performing the search at secondary inspection; or where the traveler is unwilling or is unable to assist, or it is not prudent to allow the traveler to assist in the search (such as providing a password to log on to a laptop).
And, again, this sort of detainment/search can be triggered by nothing more than an agent's feelings about the person being vetted. And while a CBP officer may have to check with a supervisor before imaging a device, ICE agents are able to self-approve intrusive searches and seizures.
As federal criminal investigators, ICE Special Agents are empowered to make investigative decisions based on the particular facts and circumstances of each case. The decision to detain or seize electronic devices or detain, seize, or copy information therefrom is a typical decision a Special Agent makes as part of his or her basic law enforcement duties. However, although no additional permission is required at this stage, Special Agents must comply with precise timeframes and supervisory approvals at further stages throughout each border search.
While there are oversight guidelines in force, they aren't set in motion until after the copying/searching has already been performed.

As the PIA notes later, the DHS's agencies don't care whether it's papers in a briefcase or the entirety of your digital life housed within a smartphone. Either way, it claims to have the right to search, seize and copy data without probable cause. Or so it did until recently.

The 9th Circuit Court's 2013 decision on border searches of electronic devices undercuts a lot of the assertions in this 2009 DHS document. Most importantly, the decision forces the government to stop pretending the contents of a laptop or cellphone are no different than the contents of a briefcase or suitcase. (h/t to Daniel Nazer for pointing out this superseding decision)
The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.
The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”
This decision partially restores the Fourth Amendment to the Constitution-free Zone -- at least the portion covered by the Ninth Circuit. The decision doesn't forbid these searches. It just holds them -- and the CBP/ICE -- to a higher standard than agents' hunches.

So, in all the principles (transparency, minimization, information safeguards) listed in the DHS's 2009 Privacy Impact Assessment of warrantless border searches, there's not a single one devoted to warrants, warrant requirements or establishing reasonable suspicion. It took a court to reach that obvious conclusion and it took a court's explanation as to why a laptop isn't a briefcase to force the CBP to stop behaving like a law unto itself in the Ninth's jurisdiction. A privacy impact assessment that doesn't mention Fourth Amendment implications is a waste of 50 sheets of paper.


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  • icon
    Padpaw (profile), 10 Apr 2015 @ 6:34pm

    Nothing like an oppressive state decide that starting at the border and going 100 miles inland is a constitution free zone. I feel sorry for those states that this "zone" completely covers. All the laws passed to prevent this sort of power abuse means absolutely nothing when those breaking these laws face no accountability for when they break said laws.

    I honestly do not understand why you Americans don't really seem to care all that much when those leading(lording) over you ignore the laws they enforce at gunpoint on you. Your rights don't seem to be worth the paper they are written on considering those in charge keep ignoring them when they get in the way of their mad rush for power and wealth at the average citizens expense.

    You criticize how things are and talk and maybe even protest a bit about it. But what has that accomplished? It is a sad day when the Arabs have more worldly respect than Americans because they took a stand against their corrupt leaders while most Americans I have seen are just apathetic and waiting for someone else to start an American spring as it were.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2015 @ 7:12pm

      Re:

      We can't protest without it either the government infiltrating it and inciting violence and painting us as the bad guys as an excuse to break it up (Occupy movement), or resorting to violence and being painted as the bad guys ourselves without any help (Ferguson).

      We can't fight them in the courts because everything is secret or national security.

      We can't fight them in Congress because everyone is either bought by special interests or just doesn't care. And should we manage to get a few people who do care about the American people above money interest, they're thwarted by endless partisanship.

      We're quickly running out of non-violent options here and the first person who takes up arms is going to be smeared up and down the country's media.

      reply to this | link to this | view in chronology ]

      • icon
        Padpaw (profile), 11 Apr 2015 @ 12:14am

        Re: Re:

        There is a reason why the DHS is teaching children that the founding fathers were terrorists that should have been shot or hanged instead of lauded.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Apr 2015 @ 2:17am

        How about some tea?

        Preferably in Boston?

        Hint - it is much harder, when the opposed party shares the territory.

        Yes, sometimes it ends up with a revolution; then the question becomes - is revolution possible in today's US? Or - does US differ from Russia or North Korea all that much?
        Yes, in Russia they might just "disappear" you, in N.K. - you'd end up in a "happy camp" - but is it really morally worse from being completely ruined or take the "deal", since you can't afford to fight in court?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Apr 2015 @ 8:19pm

      Re:

      "Nothing like an oppressive state decide that starting at the border and going 100 miles inland is a constitution free zone."

      Or from any other point of possible entry, such as an airport. That only covers about 90% of the US population, though. The other 10% still have a constitution, so what's the problem?
      /s

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2015 @ 7:14pm

    They spy on us. They violate our rights. They torture. They lie to us. They break the law. They march on us with weapons drawn. They murder us. They steal from us.
    How is this the so-called greatest country on earth?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2015 @ 7:20pm

      Re:

      It isn't and hasn't been for decades now. Feel free to join the exodus to our nearby planetary bodies as soon as we are able to do so.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Apr 2015 @ 7:29pm

      Re:

      Well, you'd be hard pressed to find a more hypocritical one, does that count?

      reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 10 Apr 2015 @ 8:08pm

      Re:

      They spy on us. They violate our rights. They torture. They lie to us. They break the law. They march on us with weapons drawn. They murder us. They steal from us.

      Welcome to the club. Murrica has been doing that to pretty much everyone outside the US forever. You should read what Clemens (Mark Twain) said about US imperialism more than a century ago (it's on Lew Rockwell's site).

      Personally, I'm both sad and glad the US' gov't is treating its own citizens the way it's been treating us for so long. Perhaps it will convince enough of you that it's long passed time this abominable conduct should have ended. Your gov't is not under control by you. It's long ago been taken over by special interest tyranical fascists. It's amazing they've managed to get away with it for so long. I expected far better from you "Don't tread on me!" patriots when I was younger.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    preacher, 10 Apr 2015 @ 8:37pm

    looking for?

    They are looking for free implementations of lisp. So if you have one on your hard drive, then watch out they will use if before they give you your hard drive back. Oh and if its common lisp they will make a web server with it first.

    reply to this | link to this | view in chronology ]

  • icon
    Hephaestus (profile), 10 Apr 2015 @ 8:42pm

    lol...

    "open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers"

    oh my f****** god are these ppl morons, they forgot a bunch ...

    does anyone want to ring off all of the talking points they missed?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2015 @ 9:09pm

    Well my constitutional right says that anyone who attempts to search and seize things from me illegal, legally justifies self-defense in the 1st degree...

    Of course, I have to record it all other was I get the death penalty unlike the asshole who's violating me...

    reply to this | link to this | view in chronology ]

  • identicon
    David, 10 Apr 2015 @ 11:05pm

    Rights

    "Muriel," she said, "read me the part of the Constitution talking about self-evident truths. Does it not say something about all animals being created equal?"

    With some difficulty Muriel spelt it out.

    "It says,
    We hold these truths to be self-evident, that all U.S. citizens are created equal, that they are endowed by their government with certain alienable Rights, that among these are Security, Liberty and the pursuit of Money as long as they stay within the borders of the U.S.A.

    she announced
    finally.

    Curiously enough, Clover had not remembered that the Constitution mentioned borders; but as it was there on the wall, it must have done so.

    And Squealer, who happened to be passing at this moment, attended by two or three dogs, was able to put the whole matter in its proper perspective.

    reply to this | link to this | view in chronology ]

  • icon
    cypherspace (profile), 11 Apr 2015 @ 3:25am

    This includes cases where the agents image the entire contents of the device in order to perform a search later. In fact, in most cases where this is done, the person is cut out of the informational loop.
    Know what? Next time I have to cross the border, I'm making sure I power cycle my encrypted devices...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Apr 2015 @ 4:27am

      Re:

      Then the next step is to surreptitiously install a hardware/software bug. Technological solutions may feel empowering, but this is a perpetual arms race in which we're supplying the resources of the aggressors.

      reply to this | link to this | view in chronology ]

  • identicon
    Guardian, 11 Apr 2015 @ 3:52am

    giant pen.is sale

    make sure lots a gay pron is first on drive....with the words just for my govt

    reply to this | link to this | view in chronology ]

  • identicon
    Whiskey tango, 11 Apr 2015 @ 4:31am

    Your article's title "2009 DHS Document Says Border Patrol...." Should be corrected. The document is primarily concerning CBP's Office of Field Operations at Ports of Entry. The U.S. Border Patrol's main responsibility is catching people sneaking across the border, thereby avoiding Ports of Entry. See Google to learn the difference. A more accurate title would be "2009 DHS Document Says CBP....".

    reply to this | link to this | view in chronology ]

  • icon
    John William Nelson (profile), 11 Apr 2015 @ 6:21am

    There is a border search exception to the Fourth Amendment. It is rather broad. The balancing courts must do is weigh the level of intrusiveness against the interests of the Government in controlling the border.

    I wrote a paper about this called "Border Confidential: Why Searches of Laptop Computers at the Border Should Require Reasonable Suspicion," which you can find here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1469292

    This article argues that laptop border searches are intrusive and should require, at a minimum, reasonable suspicion. If you want to learn about the background of the Fourth Amendment during border searches, the article reviews the case law and reasoning fairly in-depth.

    I had wanted to write "searches of laptops at the border are like strip searches of the mind," but my advisor thought it would be too polemical. Lol. While I think at the time she was correct, I wish I had gotten that phrase into it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2015 @ 6:54am

    is there any difference in the assumptions of ICE/CBP compared to other 'law enforcement' agencies? i dont think so! they have all been getting away with whatever they liked, simply because someone way up the top of the ladder has taken it on him/her self to be so paranoid, so suspicious of everyone, everywhere, they think the only way to protect the nation is to make more and even harsher rules, making a greater mockery of the Constitution, of peoples rights to privacy and freedom, that the 'protection' procedures are a great deal worse than what the criminals and terrorists would actually do! no one wants to suffer at the hands of those who want to do us harm but when the protections are even worse, it makes a mockery. if the only way to be safe is to live under rules that have you checked every minute of every day to ensure you are not going to try to undermine that safe feeling, is it really worth it? i would rather risk having the possibility of something bad happen than live in fear of being arrested by those supposedly looking after me because i 'looked suspicious'. how scary is that? we saw what happened during the cold war, the Ruskies are coming, there's a red under the bed. how pathetic was that? what did it achieve? absolutely nothing other than giving someone more power than the actual President. and that's where we are now, or almost!

    reply to this | link to this | view in chronology ]

  • identicon
    Ismail, 11 Apr 2015 @ 9:44am

    Backup and wipe

    Whilst there may be no "Constitutional" protections against searches of electronic devices and seizures of information, there is one method that could be used to protect oneself: At your home, backup all the content of the gadgets you take before you leave the US. With a notebook computer, take a OS reinstall disk plus drivers and drive-wiping utilities with you. Wipe your devices before you get to the border (with a laptop, use a utility that overwrites all sectors with garbage data several times then reload just a basic OS install with no personal data). Let the agents "examine" them. Then reload your info on your devices when you're away from the border area or at home.

    It may arouse suspicion, but there will be less chance your data ends up in government databases. It's truly sad that circumstances would be such that one would have to suggest the above option, being that the US is supposed to be the "Land of the Free."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Apr 2015 @ 10:05am

      Re: Backup and wipe

      Or just do what I do, have a burner phone & laptop. It's not like decent used laptops & phones are particularly expensive....

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Apr 2015 @ 8:15pm

        Re: Re: Backup and wipe

        It's not like decent used laptops & phones are particularly expensive....


        I suppose that you wouldn't mind buying one for anyone who asked then, huh? Where can I pick mine up?

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 11 Apr 2015 @ 10:26am

    What is to differentiate a law enforcement agency from a criminal agency...

    ...except the deference by which they regard the rights and well being of their victims / suspects?

    Once they cease acknowledging that the people on whom they infringe have a right (if qualified) to carry on unmolested and unspoiled, the legitimacy of the agency, no matter its original intent, ceases.

    At that point it becomes and should be recognized as a criminal organization malicious to the people.

    That would include the DHS and any agency that follows its policies. No recognition of the fourth amendment (or any human right), no legitimacy.

    reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 12 Apr 2015 @ 9:57pm

    If the US Border is not part of the US - what gives US officials the right to conduct any searches at all?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2015 @ 5:59am

    techwise, how quick can they do this.

    If you got your higher end smart phone with lets say 200 GB (including memory card) and your notebook with 1 TB and other assorted memory devices, how long do they wait before seizing instead of copying?

    If I copy several thousands of files over USB (2.0, I guess), it can take several eternities.

    And not a quick "Let Officer Bob handle your devices for 5 minutes while you answer these 20 questions".

    If it takes several hours to copy stuff, you won't get your devices back at an ordinary border stop.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2015 @ 3:19am

      Re: techwise, how quick can they do this.

      Oh, well, then they'll seize the devices. And you might get them. Someday. Or not. Civil forfeiture, anyone?

      reply to this | link to this | view in chronology ]

  • icon
    yankinwaoz (profile), 13 Apr 2015 @ 6:43am

    Then what?

    So are their policies in place about what they may do with your data? And how long they are allowed to hold a copy?

    I'm assuming no.

    Once they copy your drive, they can share it with anyone, foreign or domestic? Government or private? Can they hold it forever? Think of the corporate espionage opportunities!

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 13 Apr 2015 @ 7:16am

    The obvious strategy

    1) Get a laptop, put a bunch of software, movies, and music on it, as well as a bunch of encrypted data, and cross the border.
    2) CBP takes a copy of the entire thing.
    3) Bust them for massive copyright infringement, since, as the last few years have shown clearly, copyright law trumps the US Constitution.

    reply to this | link to this | view in chronology ]


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