Surveillance

Sen. Wyden Calls for Warrants for Tech Searches on the Border

Court decisions have decimated Fourth Amendment protections for people on the edges of the country.

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Sen. Ron Wyden
John Rudoff/Polaris/Newscom

Hey, it's another "This was happening under President Barack Obama, but now everybody's freaking out about it," story. In this case, it's been established for years now by court decisions that American citizens do not have the full protection of the Fourth Amendment within 100 miles of the country's borders. Officials have for a long time, on the basis of border security, been permitted wide latitude to search travelers without warrants, even if they're United States citizens.

President Donald Trump's ascendance and a new, stronger push to control border access has increased attention to this gap in our Fourth Amendment protections. A story about an attempt by the Department of Homeland Security to force a Wall Street Journal reporter to hand over her phone when disembarking from a flight got some attention on social media recently. But the story actually dates back to last July under President Barack Obama, and there was a fivefold increase in the number of border searches taking place in the year before Trump took office.

But Trump's intentions to scale back immigration into the United States has drawn more attention to this abandonment of our privacy protections. Immigration officials also may be pressing to require visa applicants to hand over passwords to social media accounts so that the content may be examined. While these targets are not American citizens, we should always be concerned and extremely aware that any authorities granted to snoop on foreign targets end up eventually being used on Americans. See also: Stingray devices, fusion centers, and most of what Edward Snowden revealed.

Sen. Ron Wyden (D-Ore.) has sent a letter to John Kelly, the secretary of Homeland Security, to express his concerns about Border Patrol officers attempting to get access to citizens' devices without warrants. He says he plans to introduce legislation to add some restraints to what border authorities may do:

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.

I intend to introduce legislation shortly that will guarantee that the Fourth Amendment is respected at the border by requiring law enforcement agencies to obtain a warrant before searching devices, and prohibiting the practice of forcing travelers to reveal their online account passwords.

Whether such legislation gets anywhere at all is heavily dependent on whether Senate Republicans are willing to put themselves out there to publicly vote for restraining the executive branch's surveillance authorities. We know that Republicans in the House are willing to do so. Rep. Jason Chaffetz (R-Utah) is introducing legislation to try to restrain the widespread use of cell tower simulators by law enforcement to engage in warrantless phone surveillance. And proposed legislation to force authorities to get warrants to citizens' old private emails has overwhelming bipartisan support in the House. But it hasn't been able to get through the Senate.

It's very clear that any new efforts to close any loopholes that allow law enforcement and border officials to ignore the Fourth Amendment are dependent on whether the Senate is willing to buy into it. The House—with the assistance of filibustering senators like Rand Paul and Wyden—essentially forced the Senate to accept some reform to federal surveillance authorities that the Senate Republican leadership really didn't want (though Paul actually voted against the reforms because they didn't go far enough). And this was under the Obama administration that had (after they had meddled with it to weaken it) given the reforms a thumb's up. There's been very little suggestion that the Trump administration would accept any effort to limit the authority of federal law enforcement and the Border Patrol to snoop on people's information.

There is a caucus of representatives who support improvements to citizens' rights to privacy under the Fourth Amendment. And I'll be leading a panel discussion about what they might be able to accomplish under this administration (if anything!) at the South by Southwest Interactive (SXSW) conference in March. Details here. Yes, you can expect reminders about this panel for the next few weeks every time I blog about Fourth Amendment and surveillance issues.

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  1. There was just a story going around social media about a US citizen NASA employee who had his computer searched at the airport and everyone was “OMG, Trump, FASCIST”.. i just sigh bc while i could be heartened people now care… i know they really don’t and will change their mind any time..

    1. When they say “Trump = fascist” for not stopping what’s been going on for over a decade, they don’t realize it’s really USA = fascist regardless of Trump.

    2. not fascist… by definition, FASCISM is government control of private means of production. It is rather evident that Mr Trump does NOT favour this. He owns a LOT of “private means of production” and has been harrassed by gummit a whole lot.

  2. Sessions’ replacement won’t have the juice or the badge-licking habit Sessions had, maybe that’ll help tilt the Senate just that little bit.

  3. So, we can’t refuse immigration from third world hellholes and we can’t snoop too deeply in vetting them. I don’t think that’s going to work out so well.

    1. We can’t snoop too deeply into the private affairs of CITIZENS, no.

      I once had a conversation on a conservative website about illegal immigration and the Fourth Amendment. It went something like this:

      Me: I’m in favor of border security, but not at the expense of citizens’ rights.

      Him: Asking people to show their papers is not a violation of anyone’s rights.

      Me: But I have a Fourth Amendment right to walk around without any official papers.

      Him: SCREW YOUR RIGHTS, IT’S AN INVASION HERE DON’T YOU SEE, WE HAVE TO KICK THE ILLEGALS OUT

      1. Me: But I have a Fourth Amendment right to walk around without any official papers.

        Huh? What does the 4th amendment have to do with being forced to walk around with official papers?

        1. we are guaranteed the RIGHT to be secure in our persons, houses, papers, and effects. That means NO snooping, pawing, examining, searching, without due process…. a warrant or probable cause for detainment. Likewise it means being secure in ur PERSONS to the point we are not required to carry ID everywhere we go.
          By the bye NONE of these rights or fredoms accrue to an illegal alien who has come here in violation of the laws relating to his being here.

  4. So just travel with a “clean” laptop or smartphone, and download whatever you need on arrival when you grab a coffee at a public internet cafe. Good luck sieving through all that metadata NSA!

    1. Except, if you had read the article, this search may take place anywhere within 100 miles of any US border. It is not necessarily “on arrival”. So if you live in Seattle, LA, Detroit, NYC, you could very well be subject to this, even if you are a citizen.

    2. Which makes me think that they just search electronic devices to be assholes and make life difficult for people. With the internet and widely available encryption technology, borders aren’t stopping data from moving around.

  5. ” In this case, it’s been established for years now by court decisions that American citizens do not have the full protection of the Fourth Amendment within 100 miles of the country’s borders. ”

    Which is ridiculous.

    1. If the constitution doesn’t apply here, then you have no power here. If I am not afforded the so-called protections listed in the constitution, the same constitution cannot grant you official powers. You are merely using coercion under color of law.

      And of course, this all neglects the fact that the constitution applies to the government no matter the location where it tries to exercise its power.

  6. I don’t worry so much about immigrants from third world hellholes, but if you read the X article, you would see that they have the right to ask for my phone and laptop password, even though I’m an American citizen, because I live within 100 miles of a US border (FWIW, actually 2 miles from a border, because I work in downtown Detroit).

    And I don’t think giving those guys unlimited access to my devices because they feel like it (which is what not requiring a warrant amounts to) is a particularly libertarian moment. That plus unleashing Homeland Security to conduct random stops anywhere in the country so they can say ‘Papers, please’ doesn’t exactly comfort me.

    I know it’s not popular among the local commentariat right now, but it certainly feels like the authoritarian wing of the Red party is currently in the ascendant and I don’t like it one bit.

    1. The authoritarian wing of our government has been ascendant for a generation, and escalated after 9/11. It feels like the authoritarian wing of the Red party is ascendant because a) the Red party is ascendant and b) shit that went on under Obama didn’t get much press because the press loved themselves some Obama.

      The searches and the 100 mile rule are insane, but the insanity didn’t start last month.

      1. The authoritarian wing of our government

        That wing is called “the government”.

    2. Anyone defending the searches inside US territory is an authoritarian pig with no regard for the constitution. The government has the power to do just about anything to people crossing the border. I’m not wild about that either, especially when it involves US citizens. But at least it’s a legitimate constitutional power. The 100 mile border zone is just entirely made up out of nothing and is a completely clear and blatant violation of the 4th amendment. It’s absolutely disgusting that anyone would defend it at all.

  7. This is definitely one area where Trump is probably going to be outright anti-libertarian. He might not be so antagonistic that a bill couldn’t be put into law, though. But it would probably have to include a bundle of goodies for his law enforcement buddies.

  8. I didn’t read the article. Does it mention Milo?

    1. rad it and find out. WE all did

  9. Is it wrong to believe that regardless of what laws are in place those who have the power to snoop will do so? Isn’t it sometimes better to just pretend that the snoopers are clever and getting away with something that everyone actually knows about than to drive them even deeper into something nobody knows about?

  10. Has anyone ever managed to clarify whether the 100 mile zone is just for land borders, or if maritime borders are also part of it?

    1. It applies to all borders, including those inside international airports.

      1. I hate to question some random stranger on the internet, but how do you know this?

        I wouldn’t be too surprised if it’s true. But it would mean that probably most of the population of the country lives in the no rights zone. Since it’s fairly difficult to sneak into the country through an airport, it doesn’t seem obvious that it would apply there and not just near land borders.
        And several articles I have read on the subject have mentioned that it isn’t clear.

        1. http://www.aclu.org/other/constitutio…..order-zone

          Per the ACLU the 100 mile “Constitution Free Zone” is both maritime and land border. Inside international airports is also included but not a 100 mile radius around them.

        2. it would mean that probably most of the population of the country lives in the no rights zone

          Right, which Reason has covered, e.g., here https://reason.com/blog/2008/10…..on-excepti

          1. Yeah, I remember that. But it just repeats what the ACLU suggests might be the case. I’m wondering if the CBP or anyone has actually asserted that power yet.
            It’s one thing to have checkpoints on highways near land borders. Or at airports. Declaring that everyone’s home in New York City is subject to search by CBP anytime they feel like it seems like it might be a harder sell in court.

            1. Thanks for thinking critically. The article linked to by the guy you replied to says that the powers within the 100 miles are circumscribed. They can look for illegal immigrants and smuggling. They can’t plausibly search your electronics and papers for smuggled data. It seems clear this was designed for trucks full of drugs and peoples. It’s concerning that I can be harassed within 100 miles of the border, but this isn’t cart blanche, and “no rights” rhetoric, while pedantically accurate insofar as whatever privileges remain to you are gifts rather than rights, isn’t helping anyone understand reality.

    2. I’ve read of Coast Guard accosting boaters in San Francisco area…. certainly far from both the Mexican and Canadian boundaries, but not with the shoreline.

  11. yeah, have an older or cheap laptop for travel. Before leaving scrub it of anything sensitive, including all saved passkeys, autoloading account info etc. Them fill up the drive with a pile of gobbldygook. When yoy get there, dump mostof that to reclaim space. Before you come back, push any important info off to the cloud, then wipe and replenish with junk again, overwriting most of the HD. When you get home, drop the stored contents of your cloud into a different computer for using here.

    Its a sorry state of affairs that we are forced to resort to such shennannigans to keep our “persons, houses, papers, and effects” secure. We are SUPPOSED to be guaranteed that security by government.. instead they are the worst destroyers of our security.

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