U.S. Border Crossings Have Become Authoritarian Testing Grounds


by Michael Krieger, Liberty Blitzkrieg:

Last week, my brother and his longterm girlfriend entered these United States at JFK international airport in New York City. She’s a Chinese citizen with a tourist (B1/B2 visa), which leads to many restrictions on when she’s allowed to enter and for how long. They are always meticulous about playing everything exactly by the book, and this time was no different. The only unusual thing about this latest episode is his girlfriend happened to encounter an authoritarian and power-tripping U.S. Customs and Border Protection officer, who pulled her into a room and immediately began berating her. He accused her of breaking the law (she hadn’t), and forced her to hand over her phone and divulge her password. After initially refusing to provide the password, the officer threatened deportation, at which point she relented. Entering the password for access to the phone wasn’t enough, he forced her to write it down on a piece of paper. The officer then proceeded to scroll through her phone for 15-20 minutes, looking for who knows what. My brother was separated from her during this time.

With his girlfriend still isolated in the room, the officer in question emerged and began barking at my brother to sit down in an extremely aggressive manner. The officer told him she had broken the law, at which point he assured him that she hadn’t. At this point, the officer became extremely agitated that a pleb had the nerve to challenge him, and lectured my brother about how he didn’t know the law, pointing out that he wasn’t an immigration lawyer so he couldn’t possibly know his rights. He then implied that the only reason someone would know their civil rights is if they’re a criminal with an intent to commit a crime. The officer also threatened to deport his girlfriend and deny her reentry for five years if my brother continued to challenge his false assertions. She was ultimately allowed to enter.

Many of you will read this and think her experience was a result of not being a U.S. citizen, but the truth is far more disturbing. The border is seen by the government as a civil rights-free zone where U.S. citizens are being increasingly treated like criminals and subject to the exact same sort of degrading abuse as my brother’s girlfriend. This is something I’ve been meaning to write about for a while, and this recent experience inspired me to do so today. Many of you have no idea how bad things already are.

One of the most disturbing and important articles I’ve read on the topic was published at Naked Capitalism a few months ago titled, Electronic Frontier Foundation and ACLU Sue Over Warrantless Phone, Laptop Searches at US Border.


Below are a few excerpts, but you should read the entire thing:

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed suit against the Department of Homeland Security (DHS), US Customs and Border Protection (CBP), and US Customs and Immigration Enforcement (ICE) last week on behalf of 11 travelers whose smartphones and laptops were subjected to warrantless searches at the US border.

As the EFF and ACLU spelled out in a press release announcing the suit:

The plaintiffs in the case are 10 U.S. citizens and one lawful permanent resident who hail from seven states and come from a variety of backgrounds. The lawsuit challenges the government’s fast-growing practice of searching travelers’ electronic devices without a warrant. It seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.

The practice of searching electronic devices at the border did not originate with the Trump administration.  The number of such searches began to climb in 2016, and has increased further during the Trump administration, as Table 2 below shows. (I realize that the figures only cover a short period and would have liked to be able to present more comprehensive numbers; these were the best I was able to find. Some additional numbers can be found in the EFF/ACLU press release.)


Business Insider reports:

As the US Customs and Border Protection (CBP) outlines in a tearsheet it provides to people at the border, federal agents today can seize and search your phone, and even make a copy of it to have forensic experts analyze its contents off-site.

“This isn’t rogue officers; this is the official, written policy of the US government,” Adam Schwartz, senior staff attorney with the Electronic Frontier Foundation (EFF) said in a conference call on Wednesday.

And, I should add, they do all this, every day– without securing any warrants…

Now, for even those with only a cursory knowledge of constitutional law, this must seem problematic. Doesn’t the Fourth Amendment to the US  Constitution-– which in theory protects against “unreasonable searches and seizures”– apply here? Particularly its warrant requirement– which I saw no mention of among the CBP bureaucratese.

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