A recent report indicates that Customs and Border Protection agents are searching thousands of Americans’ cell phones and electronic devices near U.S. border crossings.
The revelation of an uptick in electronic device searches by CBP agents came via an analysis of Department of Homeland Security documents by NBC news, which reported:
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. […]
DHS has published more than two dozen reports detailing its extensive technological capability to forensically extract data from mobile devices, regardless of password protection on most Apple and Android phones. The reports document its proven ability to access deleted call logs, videos, photos, and emails to name a few, in addition to the Twitter, Facebook, and Instagram apps.
In other words, perfectly law-abiding American citizens are increasingly going to have their 4th Amendment protections violated if they attempt to travel freely.
And while the policy of grabbing up innocents’ devices may not bother you because you aren’t planning international travel anytime soon, keep in mind that the federal government has given itself the right to violate privacy rights within 100 miles of a border.
If you happen to live within 100 miles of a border, you can bet that your right to travel unmolested is only a checkpoint away from elimination. This so-called Constitution Free Zone includes all of Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont. It also applies to nine of the nation’s 10 largest U.S. metropolitan areas: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose. Any other location within 100 miles of ocean water or foreign borders also lies within the zone.
About 66 percent of the U.S. population currently lies within the zone.
Luckily, civil liberty advocates are currently working to make it illegal for CBP agents to violate personal property without a warrant.
Last month, Sen. Ron Wyden (D-Ore.) sent a letter to Homeland Security Secretary john Kelly expressing concern over the warrantless cell phone searches.
There are well-established legal rules governing how law enforcement agencies may obtain data from social media companies and email providers. The process typically requires that the government obtain a search warrant or other court order, and then ask the service provider to turn over the user’s data. If the request is overbroad, the company may seek to have the order narrowed. By requesting a traveler’s credentials and then directly accessing their data, CBP would be short-circuiting the vital checks and balances that exist in our current system.
In addition to violating the privacy and civil liberties of travelers, these digital dragnet border search practices weaken our national and economic security. Indiscriminate digital searches distract CBP from its core mission and needlessly divert agency resources away from those who truly threaten our nation. Likewise, if businesses fear that their data can be seized when employees cross the border, they may reduce non-essential employee international travel, or deploy technical countermeasures, like “burner” laptops and mobile devices, which some firms already use when employees visit nations like China.
Wyden is reportedly working to produce legislation that would extend American citizens’ protections against warrantless searches to border crossings.
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