Entering the US illegally and without scrutiny has become as easy as a short walk across the border.
But legally entering the country means that your basic constitutional rights are circumscribed. That legal loophole is what allows the Customs and Border Protection service to elude 4th Amendment protections against illegal searches and seizures.
Law enforcement agencies must show probable cause and persuade a judge to approve a search warrant before searching Americans’ phones. But courts have long granted an exception to border authorities, allowing them to search people’s devices without a warrant or suspicion of a crime.
CBP officials have relied on that exception to support their collection of data from travelers’ phones. Sens. Wyden and Rand Paul (R-Ky.) introduced a bill last year that would require border officials to get a warrant before searching a traveler’s device.
It turns out that CBP has been using this loophole to great effect. For an unspecified of time they have been surreptitiously copying the data from 10,000 people’s phones a year and storing the purloined information in a database for up to 15 years. 2700 agents have access to that data and can make connections not just between the individuals whose phones have been copied–they can also link people who aren’t in data on the phone through Facebook timelines or similar services.
It’s quite a treasure trove for the authorities, and until Sen. Ron Wyden (D-Ore.) forced the CBP to admit the existence of this program, it was hidden behind a veil of secrecy. Many of the details are still hidden.
The rapid expansion of the database and the ability of 2,700 CBP officers to access it without a warrant — two details not previously known about the database — have raised alarms in Congress about what use the government has made of the information, much of which is captured from people not suspected of any crime. CBP officials told congressional staff the data is maintained for 15 years.
Details of the database were revealed Thursday in a letter to CBP Commissioner Chris Magnus from Sen. Ron Wyden (D-Ore.), who criticized the agency for “allowing indiscriminate rifling through Americans’ private records” and called for stronger privacy protections.
Most people have no idea how wide the discretion the government has to search you when you are entering the country or even near a border. And normal people would be fooled into thinking that the government is mostly indifferent–people can enter illegally at will and get the equivalent of a free pass and an ID from ICE. The government just releases illegal aliens right onto the streets of America’s cities.
But actually Big Brother is watching you. People actually lose their 4th Amendment rights at the border, and should the government so choose they can pry into your private data at will.
The government has no right to threaten our privacy by unlawfully collecting, maintaining, and allowing access to our data without a warrant.
This practice is unconstitutional — and it needs to end.https://t.co/ekUQwRu9YC
— ACLU (@ACLU) September 16, 2022
CBP’s inspection of people’s phones, laptops, tablets and other electronic devices as they enter the country has long been a controversial practice that the agency has defended as a low-impact way to pursue possible security threats and determine an individual’s “intentions upon entry” into the U.S. But the revelation that thousands of agents have access to a searchable database without public oversight is a new development in what privacy advocates and some lawmakers warn could be an infringement of Americans’ Fourth Amendment rights against unreasonable searches and seizures.
As we have seen many people in power are interested in creating the equivalent of China’s social credit system here in the West. Canada has already used its regulatory powers to seize the bank accounts of protesters and their supporters, and the UK is likely to pass a law that creates a separate national Internet along the lines of China’s. Here in the US credit card companies are tracking certain purchases like guns, and the Biden Administration has been collaborating with Facebook and Twitter to censor unapproved speech.
The revelations add new detail to what’s known about the expanding ways that federal investigators use technology that many Americans may not understand or consent to.
Agents from the FBI and Immigration and Customs Enforcement, another Department of Homeland Security agency, have run facial recognition searches on millions of Americans’ driver’s license photos. They have tapped private databases of people’s financial and utility records to learn where they live. And they have gleaned location data from license-plate reader databases that can be used to track where people drive.
Each of these techniques is easily sold as a measure to ensure that Americans’ security is protected, and in a tiny number of cases where the government has a strong suspicion that a particular person poses a threat it makes sense to collect data. In fact, that is why the 4th Amendment specifies that searches and seizures may happen when “reasonable.”
But that is not what is happening. The government is vacuuming up data and creating a web of knowledge that can be used to track and harass citizens, and it is scary.
[Sen Ron] Wyden wrote that “Innocent Americans should not be tricked into unlocking their phones and laptops,” and said CBP shouldn’t “dump” all this ill-gotten data into a central database, only to “retain the data for fifteen years, and allow thousands of DHS employees to search through Americans’ personal data whenever they want.”
It really is that bad. As with any government power the authority is being stretched to its limit and beyond.
The database, known as the Automated Targeting System, is used “to further review, analyze, and assess information CBP obtained from electronic devices associated with individuals who are of a significant law enforcement, counterterrorism” or national security concern, he said.
CBP officials declined, however, to answer questions about how many Americans’ phone records are in the database, how many searches have been run or how long the practice has gone on, saying it has made no additional statistics available “due to law enforcement sensitivities and national security implications.”
A 2018 CBP directive establishing rules for the searches said officers should only retain information relating to immigration, customs or “other enforcement matters” unless they have probable cause that could justify saving more of the phones’ contents.
In the briefing this summer, however, CBP officials said their default configuration for some of the searches had been to download and retain all contact lists, call logs and messages, a Wyden aide said.
CBP officials retain people’s phone data in a very small fraction of searches and only when “absolutely necessary,” Aaron Bowker, CBP’s director of office of field operations, said in an interview Thursday.CBP conducted roughly 37,000 searches of travelers’ devices in the 12 months ending in October 2021, according to agency data, and more than 179 million people traveled that year through U.S. ports of entry. The agency has not given a precise number of how many of those devices had their contents uploaded to the database for long-term review.
Back in the days after 9/11 shocked the nation we handed a great deal of power to the government in The Patriot Act. I, along with other national security hawks, was too forgiving of government overreach and trusted government officials to use the powers handed to them judiciously.
What idiots we all were. Give a bureaucrat power and he will abuse it. That is a basic principle we should all remember.
As with the police, CBP is a necessary evil. We should support the officers when they are doing their proper duty and treat them with the respect they deserve for doing a difficult and occasionally dirty job that protects society.
But we should also recognize that the people to whom we give great power we must demand great responsibility. We should also expect that these powers will get abused. We have to watch like a hawk.
Clearly we have not been watching hard enough.
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