Get the Facts and Decide – Boarder Patrol Search of Electronics

cellphonewarrantToday I got a message from OpenMedia.com (why, I don’t know) professing that the Boarder Patrol can take your computers or laptops away at will and make you unlock them so they can search your electronic files. Nowhere in their email did it say where they got this information from, but they did want donations to help in the effort to fight this law. So I did some digging because, well, I don’t trust chicken little screaming that the sky is falling.

I went to the US Boarder Patrol’s website and got the following information (it’s a bit long).

Privacy Impact Assessment for the Border Searches of Electronic Devices

Search
At primary or secondary inspection, a CBP [Customs and Boarder Patrol] Officer and/or ICE Special Agent may perform a quick, cursory search of the electronic device in front of the passenger. This may be as simple as turning on the device to establish that it is a working device, rather than a shell for concealed contraband, weapons or explosives. CBP or ICE may direct the traveler to turn on the device to establish that it works, or may take the device from the traveler and perform the task itself….
If CBP and ICE are satisfied that no further examination is needed, the electronic device is returned to the traveler and he or she is free to proceed. In this situation, no receipt to document chain of custody is given to the traveler because the device has not been detained or seized. CBP or ICE may also examine the information on the electronic device outside of the presence of the traveler. If no further search is needed, and the electronic device is not seized, the device is returned to the traveler. There is no specific receipt given to the traveler if the contents of the device are detained for further review, but the device is returned to the individual. Where CBP performs the search, a supervisor is notified or present for the search.

Detention of Electronic Devices
In most cases, when CBP or ICE keeps the device and the traveler leaves the port without it, the electronic device is considered “detained.” For CBP, the detention of devices ordinarily should not exceed five (5) days, unless extenuating circumstances exist. The CBP Officer or ICE Special Agent notes the detention in TECS and provides Customs Form (CF) 6051D to the traveler as a receipt. This form contains contact information for the traveler and the CBP Officer or ICE Special Agent to ensure each party can contact the other with questions or for retrieval of the electronic device at the conclusion of the border search. The CF 6051D is kept with the electronic device and records the chain of custody between the traveler and CBP and/or ICE until final disposition of the case. From the time the electronic device is detained to the time it is returned to the traveler, the device is kept in secured facilities with restricted access at all times….
1-16When CBP detains an electronic device under its border search authority, the device may be shared with ICE or another federal agency for analysis. If there is no evidence of criminal activity relating to laws enforced by ICE or CBP, or of a violation of law that subjects the device to seizure for civil forfeiture, the electronic device is returned to the traveler in its original condition, and any copies of the information from the device are destroyed as explained below…

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.

NBC News in March of 2017 ran a report on increased activity at our boarders utilizing this law.

What CBP agents call “detaining” cellphones didn’t start after Donald Trump’s election. The practice began a decade ago, late in the George W. Bush administration, but was highly focused on specific individuals.

The more aggressive tactics of the past two years, two senior intelligence officials told NBC News, were sparked by a string of domestic incidents in 2015 and 2016 in which the watch list system and the FBI failed to stop American citizens from conducting attacks….

The current policy has not been updated since 2009. Jayson Ahern, who served in CBP under both Bush and Obama, signed off on the current policy. He said the electronic searches are supposed to be based on specific, articulable facts that raise security concerns. They are not meant to be random or routine or applied liberally to border crossers. “That’s reckless and that’s how you would lose the authority, never mind the policy.”…

CBP also searches people on behalf of other federal law enforcement agencies, sending its findings back to partners in the DEA, FBI, Treasury and the National Counterterrorism Center, among others. [Mary Ellen Callahan, former chief privacy officer at the Department of Homeland Security.] thinks that CBP’s spike in searches means it is exploiting the loophole “in order to get information they otherwise might hot have been able to.”

A bill called the  “Protecting Data at the Border Act” was introduced on April 5th 2017 that, if passed would require Boarder Patrol Agents to obtain a search warrant for electronic devices, much like police need within our boarders due to the 2014 Supreme Court Ruling Riley v California .

From FCW.com :

search_warrant-optimizedThe bill seeks to define a clear difference in the applicable privacy law between “the digital contents” of online accounts and the physical contents of closed containers.

The bill states that government officials “cannot deny entry to Americans who refuse to surrender passwords, though it does allow law enforcement to delay entry up to four hours to determine whether the United States person will consensually provide an access credential, access, or online account information.”

Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) and Reps. Jared Polis (D-Colo.) and Blake Farenthold (R-Texas) introduced the legislation in their respective chambers.

The Ron Wyden for Senate website says:

The bipartisan, bicameral bill shuts down a legal Bermuda Triangle that currently allows law enforcement agencies to search Americans’ phones and laptops – including pictures, email, and anything on the device and possibly the cloud – when they cross the border without suspicion or a warrant. Press reports indicate these searches have spiked over the past year.

This is the situation in a nutshell. I present this information to you today because I personally hate it when a “chicken little” starts telling me that the sky is falling and that politicians are trying to take my rights away without citing sources. I especially resent it when they do it with their hand out for money ( as Open Media did. ) So this is what I could glean about the situation from as many reputable and government websites as I could find. I’ve also tried to present the facts as neutrally as possible. Read it for yourself, do your own research, and then decide for yourself if CBP needs a search warrant for electronics.

Don’t trust other people to think for you.

Current Law

Protecting Data at the Boarder Act

Other Websites

https://fcw.com/articles/2017/04/05/border-data-bill-congress.aspx

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