The politics and policies tied to U.S. borders have perhaps never been so fraught and new data released last week by the U.S. Customs and Border Protection showed that turmoil has reached the electronic devices we all increasingly carry in our pockets and suitcases. Searches of electronic devices by Customs officials at borders and airports have nearly doubled in the past six months, according to the latest information released by the agency. In a press release the agency stressed that the 14,993 searches–up from 8,383 in the same period tin 2016 and 8,503 in 2015—still only represented 0.008 percent of the approximately 189.6 million travelers arriving to the United States. Nonetheless, the report confirmed the fears of civil liberty and privacy groups who say they have seen a steady uptick in the number of searches being reported.
|INTERNATIONAL ARRIVALS PROCESSED|
|INTERNATIONAL ARRIVALS PROCESSED WITH ELECTRONIC DEVICE SEARCH|
|*February 2016 was a leap year.
**March international arrivals are approximate.walk through new study and make some graph of the data
Source and images CBP
Also this week, the prominent documentary filmmaker Laura Poitras finally received the results of a Freedom of Information Act request she had made in 2015 regarding the approximately 40 border searches and interrogations she underwent between 2006 and 2012. This was before she became internationally famous for her role in the Edward Snowden leaks and revelations, which she chronicled for her Academy Award-winning documentary CITIZENFOUR. “When it first started happening, I was naive and thought as soon as they realize I am a journalist and filmmaker I’ll stop being detained at the border,” Poitras told me in a 2014 interview. “And then it didn’t end.”
According to the information she received this week, Poitras had been singled out for extra attention and caution because of allegations regarding her involvement with an ambush of U.S. soldiers in Iraq in 2004. (Some soldiers alleged they had seen her on a roof filming the ambush and suggested she had prior notice of the attack. Poitras has vehemently denied the allegations and the army said in 2006 that it did not have sufficient evidence to bring any charges). While Poitras’s example is a unique one, it does shed light on the increasing likelihood that one’s electronic devices may be searched while in transit and the very limited recourse one has to fight back.
So what gives?
Why are Customs officials allowed to search your belongings without a warrant? Doesn’t that violate the Fourth Amendment’s prohibition against “unreasonable searches and seizures”?
Depends who you ask. The Supreme Court has repeatedly upheld the rights of border officials to conduct warrantless searches of people and their belongings as part of upholding immigration and customs law (thinks searches of luggage for contraband). Civil liberty groups and privacy experts argue these rulings are anachronistic and that the breadth of information available on electronic devices in the 21st century vastly exceeds whatever kind of material was previously available. The CBP last updated its procedures in 2009 in which they give agents wide leeway to conduct searches.
Multiple lawsuits have been filed but the results so far have not provided an overwhelming precedent to change the existing procedures. Nonetheless, privacy groups have been heartened by recent decisions such as a 2013 federal court ruling by the Ninth District of the west coast that extensive forensic searches of laptops at borders can’t be totally indiscriminate and require “reasonable suspicion.” A 2014 decision by the Supreme Court to extend greater protection against the search of electronic devices during arrests was also heralded as important progress that could be used as a basis for future border cases.
How long has this been going on?
Electronic searches at borders unsurprisingly became an issue as both electronic devices and terrorism concerns became more prevalent under the George W. Bush administration, but they really revved up in the last years of Obama’s presidency. At that time, journalists in particular sounded the alarm that they feared they were being targeted by officials eager for information about their reporting and sources; information they otherwise were unlikely to get without a subpoena and long legal fight.
Why is it getting worse?
As shown above, most of the laws and guidelines to govern these searches are outdated and without any clear legal precedent to change the border search exemptions from the Fourth Amendment, agents have vast discretion to apply the regulations as they see fit. The political rhetoric around border protection and general confusion and chaos sowed by the executive order travels bans have created a kind of “anything goes” atmosphere that often comes down to the decision making of individual agents. “The shackles are off,” an ACLU lawyer told NBC news. Despite a number of highly publicized electronic search incidents, the tone of last week’s CBP press release doesn’t suggest the practice will be reined in anytime soon. Even worse, some fear that requiring searches of social media accounts now may become routine.
Crucially, non U.S. citizens have very little legal protection from interrogations and searches at the border, something that is likely to get even worse.
Well this is pretty grim. Is there any way forward?
Legal challenges are ongoing and unlikely to end anytime soon. There are rumblings in Washington to revise or at least review existing procedures. On April 4, a bipartisan, bicameral group lead by Senator Ron Wyden introduced the Protecting Data at the Border Act to “ensure Americans are not forced to endure indiscriminate and suspicionless searches of their phones, laptops and other digital devices just to cross the border.”
U.S. citizens may not be legally required to unlock their devices (again, it’s murky), but border agents have wide powers to try to compel them to do so (holding passengers until they miss their flight, copying data from devices or seizing them for up to five days). Requiring access to social media accounts has also been contested, though if they are able to open your phone and you are signed in to your social media accounts it’s a moot point.
To that end, most privacy experts require taking measures to protect your devices before travelling. The simplest option is leaving them at home and bringing temporary devices, but numerous organizations and media outlets have published guides to encryption and digital security practices to protect them should that not be possible.
The ACLU also has a general guide to knowing your rights at airports here.