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Privacy at the Border – Do We Have Any?

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!