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The New Electronic Police State

Matthew Feeney

According to the government, your privacy protections evaporate
the moment you set foot in an airport.

Although the Fourth Amendment protects us and our
“effects” from “unreasonable searches and
seizures,” Customs and Border Protection agents can take
advantage of an exception to this constitutional protection and
search our electronic devices at airports without first
establishing reasonable suspicion or securing a warrant.

According to the
government, your privacy protections evaporate the moment you set
foot in an airport.

It’s a problem that’s only getting worse. Last week
the American Civil Liberties Union and the Electronic Frontier
Foundation entered into a suit on behalf of eleven travelers

against the Department of Homeland Security
. The plaintiffs
claim that warrantless and suspicionless border electronic device
searches violate the First and Fourth Amendments.

They’re absolutely right. CBP agents are gaining access to
massive troves of personal information related to law-abiding
Americans. This exception is an affront to everyone’s privacy
and must be revoked.

For example, earlier this year
Sidd Bikkannavar
, an engineer at NASA’s Jet Propulsion
Laboratory, was subject to a secondary airport inspection at the
airport in Houston, and was asked by a customs and border patrol
agent for the passcode to a phone he was carrying.

The phone belonged to NASA, and although Bikkannayar explained
as much, the agent continued asking for the code. Fearing that CBP
would seize the phone and that he would miss his connecting flight
to Los Angeles, Bikkannavar relented and provided it.

After around 30 minutes the agent returned with the phone,
telling Bikkannavar the phone had been analyzed with
“algorithms” and that no “derogatory”
information had been found.

The idea that the border or airport is a region of reduced
privacy expectations is not new. As Justice Rehnquist noted in the
1977 case United States v. Ramsey, the same Congress that
proposed the Bill of Rights passed the United States’ first
customs statute, giving officials the authority to search
“any ship or vessel, in which they shall have reason to
suspect any goods, wares or merchandise subject to duty shall be
concealed.”

It was also in Ramsey that Rehnquist declared,
“That searches made at the border, pursuant to the
longstanding right of the sovereign to protect itself by stopping
and examining persons and property crossing into this country, are
reasonable simply by virtue of the fact that they occur at the
border should, by now, require no extended
demonstration.”

Yet today, unlike 1977 or 1789, more than three
quarters
of American adults own smartphones. These devices
contain vast amounts of data related to our personal and
professional lives.
CBP policy
does not allow agents to access information housed
on remote servers, but even a search of information resident on an
electronic device can uncover videos, texts, photos and reveal what
apps someone has downloaded.

These apps can expose dating habits as well as religious
affiliations. Thanks to current policy, any traveler could be
coerced into allowing CBP to access this private information
without any suspicion that they have violated immigration law.

CBP searches of electronic devices are relatively rare, but the
number of such searches has been
increasing
over the last few years. These searches do not
always target travelers from terrorist hotspots, either.
Bikkannayar is an American citizen and member of the
Border Protection Global Entry program
, which is designed for
what CBP describes as “pre-approved, low-risk
travelers.”

Earlier this year then-DHS Secretary John Kelly discussed, among
other things, these electronic device searches at a Senate Homeland
Security and Governmental Affairs Committee hearing. While some
might think that the warrantless searches of electronic devices may
be a valuable counter-terrorism tactic, Kelly did not cite a single
instance where an electronic device search had lead to a terrorism
charge or conviction.

As the recent ACLU and Electronic Frontier Foundation suit
shows, these searches have disrupted the lives and violated the
privacy of a NASA engineer, a former Air Force Captain, a Harvard
graduate student, a nursing student, and entrepreneurs, all
citizens with no connections to terrorist activity.

It’s important that the federal government keep us safe
from foreign threats, and CBP should be able to examine phones and
laptops belonging to people who are the subject of a warrant. But
CBP should not have the authority to go on fishing expeditions for
incriminating data, harassing and intimidating citizens and
permanent residents without any evidence of wrongdoing.

Matthew
Feeney
is a policy analyst at the Cato Institute.