Our right to privacy is
under assault. One need only look at evening news casts to see the increased
state intrusion of our personal lives. Everyone is aware of the NSA’s
warrantless wiretapping and massive meta data storage, but most people probably
aren’t aware of what happens at our ports of entry each and every day. If you
thought that Customs and Border Patrol (CBP) is constrained by things like
warrants, probable cause, or articulable suspicion you would be wrong. Even if
you are aware that CBP has carte blanche to search and confiscate your
property, you probably think that it doesn’t really apply to U.S. citizens. You
would be wrong.
A recent
court case in the Eastern District of New York is a perfect
example of why we should be concerned about CBP’s broad power to invade your
privacy. I’ll try and keep this as free of legal jargon as possible, but
basically a photojournalist (with the help of an army of privacy advocating
lawyers) sued the U.S. government over the confiscation of his electronic media
at a port of entry. Short version is that he lost the case because the court
said he lacked standing for failure to show he was harmed – fancy lawyer talk
for “go away, it’s really not that big of a deal…don’t waste our time with
this!”
More important than
what happened to the photojournalist’s belongings are the CBP policies left
undisturbed, policies that should at the very least cause concern for anybody
visiting or returning to the United States. The exact text of the CBP directive
states:
An Officer may detain electronic devices, or copies
of information contained therein, for a brief, reasonable period of time to
perform a thorough border search. The search may take place on-site or at an
off-site location, and is to be completed as expeditiously as possible. Unless
extenuating circumstances exist, the detention of devices ordinarily should not
exceed five (5) days.
Put
another way, CBP can take your stuff and send you on your way. Even more
disturbing is the following directive:
Officers may seize and retain an electronic device,
or copies of information from the device, when, based on a review
of the electronic device encountered or on other facts and
circumstances, they determine there is probable cause to believe that the
device, or [a] copy of the contents thereof, contains evidence of or is the
fruit of a crime that CBP is authorized to enforce.
Now
they not only get to keep your stuff, they can make copies and look for stuff for which you can be prosecuted. We’re way beyond looking for things that
can actually cause harm, like explosives, and on to looking for evidence of
thought crime! Yeah, they might be constrained by probable cause, but we all
know how low that threshold is, not to mention they can establish that probable
cause with what they find from the thorough border search mentioned in the
first directive.
Why
should we be concerned? Well, anything that CBP finds can be used against you
later in a criminal proceeding. This applies to citizens and non-citizens. Even
more troubling is the fact that what CBP finds can be used against the
non-citizen in removal proceedings. Unlike criminal proceedings, which
theoretically have some procedural safeguards for the accused, removal
proceedings dispense with even the pretense of such protections. In removal
proceedings, evidentiary standards are relaxed and the government’s burden is
substantially less when it is trying to remove a non-citizen. How many of us
could withstand a reason to believe accusation if the government got to review
everything on your laptop, tablet, or phone. Not many!
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