CBP Responds To Senator's Query About Border Searches Of Returning Travelers' Devices

This has implications for all U.S. citizens returning to the country from international travel; business or vacation. An important exchange occurred recently between government officials about Fourth Amendment rights and protections, or the lack thereof, for citizens.

Earlier this year, U.S. Senator Ron Wyden (D-Oregon) sent a letter (Adobe PDF) asking the Department of Homeland Security (DHS), the parent agency of U.S. Customs & Border Protection (CBP), about CBP's detaining of citizens returning from international travel, and warrantless demands to access citizens' locked mobile devices. The Senator's letter read in part:

"Dear Secretary Kelly,
I am alarmed by recent media reports of Americans being detained by CBP and pressured to give CBP agents access to their smartphone PIN numbers or otherwise provide access to locked devices. These reports are particularly troubling, particularly in light of your recent comments suggesting that CBP might begin demanding social media passwords from visitors to the United States. With those passwords, CBP may then be able to log into accounts and access data that they would only be able to get from Internet companies with a warrant. Circumventing the normal protections for such private information is simply unacceptable.

There are well-established rules governing how law enforcement agencies may obtain data from social media companies and email providers... 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 their data can be seized when employees cross the border, they may reduce non-essential employee international travel, or deploy technical countermeasures..."

Senator Wyden's concerns focus upon the rights of companies and individuals to protect intellectual property, without which many businesses -- large, small, startups, and journalists -- cannot operate. Senator Wyden asked for a response from DHS by March 20, 2017 with answers to five questions (links added):

"1. What legal authority permits CBP to ask for, or demand, as a condition of entry, that a U.S. person disclose their social media or email password?
2. How is CBP use of a traveler's password to gain access to data stored in the cloud consistent with the Computer Fraud And Abuse Act?
3. What legal authority permits CBP to ask for, or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to encrypted data? How are such demands consistent with the Fifth Amendment?
4. How many times in each calendar year 2012 - 2016 did CBP ask for, or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?
5. How many times in each calendar year 2012, 2013, 2014, 2015,and 2016 did CBP ask for, or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?"

In April, Senator Wyden, with Senator Rand Paul (R-Kentucky), Representative Jared Polis (D-Colorado), and Representative Blake Farenthold (R-Texas) introduced the Protecting Data at the Border Act (PDBA) to ensure that U.S. citizens are not forced to endure indiscriminate and suspicion-less searches of their phones, laptops and other digital devices when crossing the United State's borders.

On June 20, Kevin McAleenan, the Nominee for CBP Commissioner, responded to Senator's Wyden's letter. NBC News reported:

"U.S. border officers aren't allowed to look at any data stored only in the "cloud" — including social media data — when they search U.S. travelers' phones, Customs and Border Protection acknowledged in a letter obtained Wednesday by NBC News. The letter (PDF), sent in response to inquiries by Sen. Ron Wyden, D-Ore., and verified by Wyden's office, not only states that CBP doesn't search data stored only with remote cloud services, but also — apparently for the first time — declares that it doesn't have that authority in the first place... McAleenan's letter says officers can search a phone without consent and, except in very limited cases, without a warrant or even suspicion — but only for content that is saved directly to the device, like call histories, text messages, contacts, photos and videos... Travelers don't even have to unlock their devices or hand over their passwords when asked — but if they refuse, officers can "detain" the phone, McAleenan wrote."

When your phone or mobile device is detained, that means CBP agents keep it for a time before returning it to you. So, while you may enter the country fairly quickly, your seized device(s) may not. There are notable horror stories about travelers returning to the United States. It doesn't matter if the device is yours or your employer's.

McAleenan's letter did not answer questions #4 and #5 about search activity. Not good. In fact, the letter stated:

"DHS's May 9, 2017 letter stated that CBP did not have data responsive to this request."

Huh? This seems incredulous. Consider this scenario: a CBP agent detains a citizen's device(s) and inspects those devices (with or without the assistance of another federal agency). McAleenan's response would have us believe that the CBP doesn't have data documenting this event. This implies that the CBP either doesn't collect or doesn't maintain records of how its agents account for their time: when, where, why, the duration, which agents inspected, and types of devices inspected; nor when the detained device was ultimately returned to its owner. It also implies that the CBP doesn't have any records (e.g., doesn't know) about when, where, or the amount of data uploaded from detained devices and stored in CBP databases. This seems unbelievable and a huge managerial failure.

During my business career I had to submit and complete data into several online time-tracking systems; which tracked workers' time down to 15 minute intervals. Perhaps, it is appropriate to query the CBP about its time-tracking systems. Some ad hoc queries may yield responsive data.

Moreover, the CBP site contains and displays plenty of statistics about the agency's operations (e.g., staffing, sector performance, etc.) and enforcement (e.g., "inadmissibles," illegal aliens apprehended, arrests of wanted criminals, drug seizures, gang affiliated enforcement, etc.), but nothing about citizens detained for device searches nor the volume of passwords collected.

More about that in a few minutes. So, keep reading.

What to make of this? U.S. citizens have no Fourth Amendment rights when traveling across our borders. Not good. It doesn't matter whether you are law-abiding or not. Not good. Why? How? McAleenan's letter confirmed it:

"While 8 U.S.C. 1357 is an example of CBP's authority to conduct a search in the immigration context, CBP currently operates under a host of additional statutory authorities that more broadly provide that all persons, baggage, and merchandise arriving, or departing from, the United States are subject to search, inspection, and detention. See, e.g., 19 U.S.C. 1461; 1496; 1499. Those statutory Customs authorities are applicable to all travelers entering the United States, regardless of their citizenship.

"On this point, because CBP must determine the admissibility of both the traveler and his or her goods and baggage, even after a returning U.S. citizen has established their identity and U.S. citizenship, CBP may conduct a border search of the goods he or she is seeking to bring into the country to ensure that those goods are permitted to enter. In other words, because any traveler may be carrying an electronic device that contains evidence relating to offenses such as terrorism, illegal smuggling, child pornography, CBP's authority to search such a device at the border does not depend upon the citizenship of the traveler.

In the exceedingly rare instances when CBP seeks to conduct a border search of information in an electronic device -- which affects less than one-hundredth of one percent of travelers arriving to the United States because of a need to inspect that traveler's device. Therefore, although CBP may detain an arriving traveler's electronic device for further examination, in the limited circumstances when that is appropriate, CBP will not prevent a traveler who is confirmed to be a U.S. citizen from entering the country because of a need to conduct that additional examination..."

Exceedingly rare? Perhaps on a percentage basis. We know from the CBP statistics page:

"CBP officers processed more than 390 million travelers at air, land, and sea ports of entry in FY2016, including more than 119 million travelers at air ports of entry..."

Some simple math using data supplied by the CBP: 0.01 percent X 390 million = 39,000 passengers during 2016 who have had their electronic devices detained and searched for information. Next, multiple that annual total by 10 or more years. The true total fast approaches half a million incidents.

Plus, the detainment and search rate may not be rare at all for frequent travelers. Some jobs require employees to travel frequently to international destinations.

Also, the above statement highlights the CBP approach: all travelers entering the country are presumed to be threats without any supporting data or evidence. No Fourth Amendment protections for U.S. citizens at our borders. Do you find this troubling? I hope that you do. Contact your elected representatives and demand that they support the Protecting Data at the Border Act.

A wise friend once said, "You just can't run away from the Fourth Amendment." I agree. What do you think?