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Thursday, 16 March 2017 06:36

US Border Searches of Electronic Devices Surged in 2016

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CBP Badge(Photo: United States Department of Homeland Security )

Think twice about bringing electronic and digital property, including your regular cellphone, loaded with confidential information through US border crossings.

CNN reports:

In fiscal year 2016, 390 million people entered the US and 23,877 electronic media [device] searches were conducted at the border. In fiscal year 2015 there were only 4,764.

That's a fivefold increase, and that occurred under the Obama administration. Given Donald Trump's proclamations that he will aggressively "protect our borders," the number of electronic and digital media searches at US crossing points is likely to further increase.

An Associated Press article from last month notes:

The American Civil Liberties Union and the Electronic Frontier Foundation both say they have noticed an uptick in complaints about searches of digital devices by border agents.

The increase has become most noticeable in the last month, said Adam Schwartz, a senior staff lawyer at the Electronic Frontier Foundation.

“We are concerned that a bad practice that has existed under past presidents has gotten worse in quantity under the new president,” Schwartz said.

Although this practice is an invasion of privacy for everyone who is searched, it hits journalists particularly hard.

As the Reporters Committee for Freedom of the Press states:

Unfortunately for journalists and other information providers, searches of laptop computers, digital cameras and other news gathering materials are not uncommon at airports and other border crossings; border agents can even detain the electronic devices. And what's even more unfortunate, little can be done to prevent them.

That’s because various courts have ruled that these devices are like suitcases, and border agents are therefore not required to have a reasonable suspicion, based on a traveler’s demeanor or physical appearance, before searching them. These “routine border searches” have consistently been upheld as constitutional.

This is not only a personal and professional violation of the privacy of journalists; it can also compromise their sources. The Committee to Protect Journalists states:

French-American photojournalist Kim Badawi did not go home to Texas for Thanksgiving this year. He didn't want to risk a repeat of November last year, when he says U.S. border security detained him at Miami airport and interrogated him in minute detail about his private life, political views, and journalistic sources.

Badawi, who had traveled to Miami from Rio in Brazil, where he is based, said he watched as border agents pored over his private photos and WhatsApp messages, and asked detailed questions about his travel. He said he objected when an agent read WhatsApp messages sent to him by a source, a Syrian refugee living in Brazil. Badawi, whose work has appeared in The New Yorker, The Wall Street Journal, and Le Monde, says he told the officers they should call his editors, but that his request was ignored.

"I sat as the so-called immigration police, or Homeland Security agents, rifled their way through the past 10 years of my contacts, professional conversations, and private ones."

Several high-profile incidents have been documented recently, including the case of Ed Ou, a prize-winning Canadian reporter. Ou was denied entry into the United States late last year, and his electronic equipment was confiscated. The Committee to Protect Journalists also reported on another electronic search of a journalist this year:

Ali Hamedani, a reporter for BBC World Service, told CPJ that border agents detained him at Chicago O'Hare airport for over two hours and questioned him when he arrived in the U.S. on January 29 to interview a Persian singer. The journalist, who said he was traveling on a Media I Visa, told CPJ that agents searched his phone and computer and read his Twitter feed.

Hamedani told CPJ that when he traveled to the U.S. on the same visa in November he did not have any issues at the border.

The full number of invasive searches of journalists' electronic property is not known.

The electronic searches of individuals and journalists by US Customs and Border Protection agents have been upheld by the courts, so groups such as the Electronic Frontier Foundation (EFF) are working to challenge the seemingly arbitrary application of the practice. In the meantime, the EFF offers advice to minimize and protect the data that you travel with:

Travelers should decide whether they can reduce the amount of digital information that they carry across the border. For example, they may leave certain devices at home, use temporary devices, delete content from their devices, or shift content to the cloud. Travelers should protect the information they do carry over the border. Most importantly, they should use full-disk encryption and backup their data somewhere else. Also, shortly before arriving at the border, travelers should power off their devices, which will resist a variety of high-tech attacks against encryption. Travelers should not rely solely on fingerprint locks, which are less secure than passwords.

US border areas are gray zones in which Customs and Border Protection agents are allowed to invade individuals' privacy without a warrant. That's a sad commentary on the direction of our democracy.