While the Fourth Amendment typically protects people around the country from unreasonable searches without warrants, agents along the Canadian and Mexican borders can search all travelers’ belongings, including electronic devices, with or without reasonable suspicion or a warrant.
According a Privacy Impact Assessment from the U.S. Department of Homeland Security, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement agents can search all travelers’ electronic devices, whether they are U.S. nationals or visitors from other countries, with or without informing them.
Should travelers refuse to hand over their devices or comply in any way, including if they don’t provide their passwords, agents could detain or seize the device, said Aaron E. Bowker, a public affairs liaison for CBP’s Buffalo field office, which oversees several ports of entry throughout Northern New York, including ones in Alexandria Bay, Ogdensburg and Massena.
“All persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention,” Mr. Bowker said.
Agents cannot block U.S. citizens or green-card holders from entering the country if they do not provide their passwords or social media accounts, although they can be held temporarily at the border for questioning, but visa holders and tourists can be denied entry, said Sophia S. Cope, a staff attorney for the Electronic Frontier Foundation, said in a report she wrote with fellow foundation staff members Amul Kalia, Seth Schoen and Adam Schwartz.
“At the end of the day, foreign nationals don’t have a lot of recourse from that,” Ms. Cope said.
While CBP claims the number of people who had their devices searched make up less than one percent of travelers who have crossed the border in recent years, searches have become more frequent of late.
CBP announced Tuesday in a news release that 14,993 arriving international travelers had their devices searched from October 2016 to March 2017, and while that makes up 0.008 percent of about 189.6 million travelers, it is 6,610 more searches than the 8,383 searches conducted in the first six months of the 2016 fiscal year.
During the 2016 fiscal year, CBP officers and agents searched 19,033 international travelers’ electronic devices, according to the release, more than twice the number of searches during the 2015 fiscal year.
“It’s very, very low,” Mr. Bowker said. “Less than 100th of a percent of all travelers.”
Stephen W. Yale-Loeher, a professor of immigration law practice at Cornell Law School, said the increasing number of searches stem from agents’ desire to use all possible measures to determine if a person or the merchandise carried will harm the country or violate immigration laws.
“It’s not just because of this president,” he said. “This started before Trump was elected.”
Searches of electronic devices, like other items, result from agents having to conduct more in-depth inspections to determine the “admissibility of an individual or his or her belongings,” according to the assessment.
Travelers may be chosen for these inspections if, according to a fact sheet from CBP, they have incomplete or improper documents, violated a law CBP enforces, have names that match people of interest or have been selected for a random search.
“It’s like any other secondary inspection,” Mr. Bowker said.
If no evidence of immigration law violations or crimes are found during the search, the device is returned and the traveller is allowed across the border, according to the assessment.
If agents do find evidence of illegal activity, they can hold devices and make travelers cross the border without them. CBP agents can hold devices for only five days, according to the assessment, but ICE agents can detain them so long as needed, but must receive approval after 30 days and be reapproved every 15 days.
CBP and ICE agents can also make copies of information from travelers’ devices for further review with or without detaining the device and, in some cases, without informing travelers, according to the assessment.
“Every search is different,” Mr. Bowker said. “It depends on what they’re looking for and if they find something.”
Mr. Bowker, however, said CBP officers must receive permission from their supervisors to search travelers’ electronics.
“Obviously, there is a very small amount of people who we feel we need to do it to,” he said.
When agents take devices, there are no limits to what they can search.
Mr. Yale-Loeher, who is also of counsel to Miller Mayer LLP, said agents can search anything on electronic devices including emails, documents and social media accounts.
“Some kind of review of social media accounts is happening across all immigration agencies,” he said.
Electronic device searches are not limited to border crossings.
According to the American Civil Liberties Union, agents can operate immigration checkpoints within 100 miles of the border, but need reasonable suspicion to pull someone over and probable cause or a warrant to search vehicles.
“(The Fourth Amendment) is sort of watered down in the 100-mile border zone,” Mr. Yale-Loeher said.
In response to cases of agents searching electronic devices, U.S. Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., and Reps. Jared Polis, D-Colo., and Blake Farenthold, R-Texas, introduced a bill this month that would require them to obtain a warrant before searching a U.S. citizen’s device.
According to a fact sheet from Sen. Wyden’s office, the bill would also prohibit agents from delaying travelers from entering the U.S. if a person declines to hand over passwords, PIN numbers and social media account information and would require agents to have probable cause before seizing a device.
“Basically, (CPB) says digital devices as a legal matter are the same as a suitcase and that’s ridiculous and untrue,” Ms. Cope said. “We believe probable cause is required and a warrant.”
Robert G. Horr III, executive director of the Thousand Islands Bridge Authority, said he was not aware of any instances of agents at the Alexandria Bay port of entry searching travelers’ electronics.
He also said he felt agents having that ability would not affect the flow of traffic across the Thousand Islands Bridge. About two million people travel across the bridge annually, and Mr. Horr said secondary inspections occur on a daily basis.
“There’s an expectation that when you cross the border that everything is fair game,” he said. “The law is the law. If that’s what it is, that’s what it is.”
Both Ogdensburg Bridge and Port Authority Executive Director Wade A. Davis and Seaway International Bridge Corp. Director Wade N. Dorland declined to comment for this story.
©2017 Watertown Daily Times (Watertown, N.Y.) Distributed by Tribune Content Agency, LLC.
