Homeland Security Border Agents Can Seize Your Phone (cnn.com)

Slashdot reader v3rgEz writes: A Wall Street Journal reporter has shared her experienced of having her phones forcefully taken at the border -- and how the Department of Homeland Security insists that your right to privacy does not exist when re-entering the United States. Indeed, she's not alone: Documents previously released under FOIA show that the DHS has a long-standing policy of warrantless (and even motiveless) seizures at the border, essentially removing any traveler's right to privacy.
"The female officer returned 30 minutes later and said I was free to go," according to the Journal's reporter, adding. "I have no idea why they wanted my phones..."

Comments

Encryption

[Anonymous Coward]

Keep your phone encrypted and always power it off when crossing the border. They can seize your phone but can't compel you to decrypt it.

Re:Encryption

[Anonymous Coward]

Same goes for your computers and any hard drives or usb sticks. They are allowed to copy all its contents. So better use encryption for those as well, and power off your computers so that they can't do cold boot attacks or hijack some internal bus to read out the decryption key.

Either way, if its really important you should use burner hardware anyway, as they can always insert some backdoor into the hardware, nobody prevents them from that and the laws allow it in certain cases.

Re:Encryption

[ArchieBunker]

They can't compel you but they could hold you in jail for a while.

Re:Encryption

[inode_buddha]

Some asshole needs to explain to me how this is "over rated". Frankly, I LOVE being completely unplugged and disconnected from it all.... almost like a vacation.

Re:Encryption

[Wrath0fb0b]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion. Even then, the duration of the detention must be limited to the time necessary to confirm or dispel that suspicion. And even if there is reasonable suspicion, under no circumstances can the duration exceed 48 hours without a judicial hearing.

See this handy guide [PDF] for more details and lots of citations. Or here's a quote for the lazy:

There appear to be no âoehard-and-fast time limitsâ that automatically transform what would otherwise be a routine search into a non-routine search, nor render a non-routine search conducted under the reasonable suspicion standard unconstitutional. Rather, courts consider âoewhether the detention of [the traveler] was reasonably related in scope to the circumstances which justified it initially.â In order to provide perspective, the 16-hour detention in Montoya de Hernandez was considered a non-routine search (justifiable by reasonable suspicions), while a one-hour vehicular search did not require reasonable suspicion. The Second Circuit has characterized four- to six-hour-long detentions of individuals suspected of having terrorist ties as routine.

However, the Fifth Circuit in United States v. Adekunle concluded that the government must, within a reasonable time (generally within 48 hours), seek a judicial determination that reasonable suspicion exists to detain a suspect for an extended period of time.

Re:Encryption

[AmiMoJo]

At the UK border they can demand you power on your electronics. In theory it's to prove that they are real. It's not clear how far they can demand you go... Full boot up or just to the encryption key prompt.

I've taken to simply wiping the whole machine, installing a dummy OS and then restoring from an image when I get to my destination. The image is stored encrypted on a server and I don't have access to the password. Ditto with my phone.

Re:Encryption

[Khyber]

You obviously don't travel for business.

I went to the UK, the company I was working for had a company phone with every number I needed pre-programmed, ready to hand to me after I got off the plane and out of the airport once inside the UK. Before going back to the USA, hand them the phone back before entering the airport.

Re:Encryption

[Martin Blank]

I do not, nor have I ever, used my personal cell phone for work purposes. Key work people may have the number for emergency purposes, but it's made clear that me providing that number is a serious point of trust, and that it should never be used except for the most dire circumstances. My work cell not answering doesn't count. Clients are to *never* get that number.

About a year ago, I took a job where they don't provide a phone. I chose instead to purchase a separate line that is used entirely for business. Only a few personal contacts have the number (parents and wife, basically). If I ever leave the company, the line gets disabled (phone was purchased off contract) so I don't have to field calls from clients. Even if I choose to use the phone with a new employer, it will get a different number. The cost of the phone and extra line comes off taxes each year.

When traveling internationally, the phone gets backed up, wiped, and reinitialized with a separate ID that has no links to the old except for necessary work contacts. Something similar happens to the notebook. After returning home, what little new data is present is backed up, then the pre-trip backups are restored.

All devices are fully encrypted, so reinitialization gets a fully clean start.

100-mile zone

[Anonymous Coward]

Agents can operate within a 100 mile zone of the border. (Most of the country)
https://www.aclu.org/constitution-100-mile-border-zone

Re:100-mile zone

[Anonymous Coward]

It gets worse. The government has recently been circulating the idea that every airport in the country is an international border because technically, a little Cessna 172 or Piper Cherokee that departs from Canada or Mexico could potentially land there. You'll find this includes everything right down to untowered strips in podunk towns. Thus the Constitution-Free Zone would extend outward in a 100 mile radius from every airport "capable of serving international traffic." That covers almost the entire US, barring a few exceptions in sparsely populated states like Nebraska where you might find a spot that has no airstrips within 100 miles.

When defined this way, for all intents and purposes, the whole US population lives within the Constitution-Free Zone.

Other news articles say the DHS 'tried' to take

[schwit1]

https://reason.com/blog/2016/0...
http://money.cnn.com/2016/07/2...

Easy

[Anonymous Coward]

"I have no idea why they wanted my phones..."

They didn't want the phones, they wanted to exercise power over you. They're low paid, in shitty jobs and hated for it. Acts like this are about all they can look forwards to.

Re:Easy

[Strider-]

Actually, the most likely thing they wanted to do was swab it for drugs. My sister was a Canadian border guard, and if they had any suspicion that you might be carrying drugs or similar, they'd take an item of yours (ID, phone, etc...) into the back room and swab it to check for the presence of an elevated amount of narcotics. If they found it, that would cause them to do a more thorough search.

Snowden leaks

[Anonymous Coward]

One of the Snowden leaks revealed that when you hand over your phone at 5-eyes embassies and borders, they use the opportunity to install software bugs on the phone. I imagine its the same at the USA border.

DHS seems to be ignoring the Jae Shik Kim case, where they seized his laptop at the border and cloned it to go fishing. He sued and the court blocked it.

But I don't think gathering *visible* evidence was the game here, since she's a journalist. More likely it would be the NSA bugging route.

Not just at the border...

[QuietLagoon]

... but the ability for the Homeland Security Border Agents to do stuff extends to 100 miles from the border, in addition to the border crossings.

.
The Constitution in the 100-Mile Border Zone

Re:Not just at the border...

[swb]

I love those armed checkpoints many miles from the border in Arizona.

Ironically, the last time I had to go through one I was the passenger in a car with Arizona plates. I'm 50, the driver was 65, both of us are Caucasian men. We had to answer a bunch of questions and were there for 2-3 minutes. The driver lives in Bisbee and has to pass through either the checkpoint in Tombstone or Sierra Vista to go anywhere north (Benson, Tuscon, etc), and so is through the checkpoints all the time.

The car in front of us had *Mexican* plates and 2 passengers. I don't think they were stopped for more than 10 seconds.

That's just fucking great. Two American Citizens NOT crossing a border in a vehicle with in-state plates spend more time answering Border Patrol questions than three likely foreign nationals in a vehicle with foreign license plates. Tell me what this system is about again?

Re:Not just at the border...

[swb]

No, but I guess I had this idea that there would be more BORDER PATROL scrutiny of a vehicle WITH FOREIGN LICENSE PLATES.

It's not racist when the license plate says "Package may contain non-US content."

Re:Not just at the border...

[PrimaryConsult]

What's even sillier is the one in NY.... I87 / US 9 have one in the middle of Adirondack park, 90 miles from the border... basically there's no way you're getting around that without adding a massive amount of time to the trip. It's also only there randomly, presumably to tempt anyone interesting into taking the direct route. But seriously what are they worried Canadians are going to do, bring us decent healthcare? Make us speak French? Kill us with delicious poutine? Most of the people on the road are just Plattsburgh residents trying to get the hell out of there and to somewhere interesting...

Re:Not just at the border...

[kencurry]

We have the same in San Diego - a border check on 5 fwy 40 miles from the border. It's the only direct way to get to Orange County from SD & I drive through it every day. I am baffled as to why we cannot keep the border checks at the border. Over the years I have missed several meetings because the delay goes to maybe 30 minutes or so. For every illegal they catch and throw back, there must be 100's of hours productivity lost to local businesses because of workers stuck on the 5 freeway.

In a flat world where you have to compete with all countries, I just don't get why any politicians see this as beneficial use of resources (keep in mind US trillion dollar federal deficit.)

Article doesn't mention racial profiling.

[timrod]

One thing the summary doesn't mention is that the reporter who was detained is probably non-white: her name is Maria Abi-Habib and she covers the middle east for the Wall Street Journal. In the Facebook post, she says she goes by Maria Theresa. She's apparently non-muslim, but probably looks close enough to a middle easterner that racial profiling kicked in.

A journalist does not know what is going on?

[Ecuador]

A journalist (of the WSJ no less) has no idea what is going on in their country? That's what was the most surprising to me. I mean, I knew about the 100-mile border rule and I am neither a journalist, nor a US citizen. I thought the US journalists are in on it with the government by not drawing attention to the slowly eroding US constitutional rights, but in this case it is not some conspiracy, the journalist is an idiot. Where idiot here is also used in the original meaning from the ancient greek (no unicode to list it here) which was referred to people who were not interested in the affairs of the State.
If a journalist whose job is to know stuff exactly like this, is surprised to find something like that out, what hope do the people in the US realize that they have let them take away their rights one by one?

Wouldn't work

[Anonymous Coward]

No, they'd just bug her SIM card, and it would grab all her contacts the next time she switches on the phone.

https://www.schneier.com/blog/archives/2014/02/gopherset_nsa_e.html

(TS//SI//REL) GOPHERSET is a software implant for GSM (Global System for Mobile communication) subscriber identity module (SIM) cards. This implant pulls Phonebook, SMS, and call log information from a target handset and exfiltrates it to a user-defined phone number via short message service (SMS).

(TS//SI//REL) Modern SIM cards (Phase 2+) have an application program interface known as the SIM Toolkit (STK). The STK has a suite of proactive commands that allow the SIM card to issue commands and make requests to the handset. GOPHERSET uses STK commands to retrieve the requested information and to exfiltrate data via SMS. After the GOPHERSET file is compiled, the program is loaded onto the SIM card using either a Universal Serial Bus (USB) smartcard reader or via over-the-air provisioning. In both cases, keys to the card may be required to install the application depending on the service provider's security configuration.

************

The SIM card keys keys they stole 2 billion of them from Gemalto, the SIM card manufacturer, by hacking their network and tracking their employees. If it's a USA phone, they would just ask AT&T or Sprint to give them the SIM card key, US telcos have immunity for helping the NSA, regardless of the laws.

Wrong case for 4th amend, Customs can search

[drnb]

Exactly this. In this era of a complete disregard for the 4th amendment ...

I agree there is disregard for the 4th amendment but this is NOT the case to argue that. US Customs has *always* been allowed to search your person and property at a border crossing since the founding days of our republic. What may be arguable in this case is that a TSA agent did the search not a Customs agent. Of course "deputizing" TSA as customs agents would close that loophole.

Is there any government on earth that does not have the right to search the person and property of an international traveler when they cross the border? Note "international traveler", within the EU you are no longer an international traveler, but when originally entering the EU from outside you were.

And by at the border I am referring to at the border, not 100 miles inside. That is a different situation IMO.

Re:Wrong case for 4th amend, Customs can search

[Anonymous Coward]

The problem is the border patrol agents are allowing foreign citizens to enter the county at will, while harassing and intimidating the USAian citizens. Drugs can come in freely, but if you have dog food re-entering the USA from Canada without the appropriate documentation and certification, they will hold you up against the wall and ass rape you. The border patrol agents do not patrol the border to protect it. They patrol it to harass, intimidate, and demand fees of the citizens of the USA. It is easier to leave the country than to reenter it. I am wondering if maybe the thing to do is just stay away from the 3rd world hell hole that the USA has become under President Obama.

Just my 2 pennies.

Troubling

[Locke2005]

What I find most troubling about this is that they demanded her phone, but then backed down when she insisted on getting WSJ lawyers involved. That implies that they were attempting to do something by intimidation that they were aware they had no legal right to force her to do. Is anyone else bothered by law enforcement using this tactic? I've heard of other cases, i.e. stopping people on the street and tellling them, "You need to show me what's in your bag" Well, according to the Fourth Amendment, no I don't, but probably most people assume law enforcement understands the law better than they do. Fact is, citizens are required to abide by thousands of laws, and ignorance is not an excuse. But if law enforcement doesn't apply the laws correctly, they can always claim ignorance of the law. Not really a reciprocal balance of rights, is it?

Don't travel to US.

[stooo]

The US government doesn't want us going to this crazy country, and get some tourist and travel economy going.
So we'll travel elsewhere.
Don't travel to US.

Re:Don't travel to US.

[david_bonn]

... except for the fact that I have had similar experiences in Canada, the UK, and Switzerland. With both laptops and smartphones.

So now I travel with a burner phone and an old netbook. No big loss if they are confiscated.

Re:Don't take anything electronic into the USA

[myowntrueself]

Americans, why are you putting up with this? By passively accepting these acts, you are letting your government slowly turn your once-great nation into a totalitarian police state. It brings to mind the speech from V For Vendetta:

"I know why you did it. I know you were afraid. Who wouldn't be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the high chancellors, Clinton, Bush, and Obama. They promised you order, they promised you peace, and all they demanded in return was your silent, obedient consent."

Why do you think there are Libertarians in North America and practically nowhere else?

Border Search Exception

[SeattleLawGuy]

The First Congress obviously considered border searches reasonable because they authorized searching every room and every item of a ship for contraband. They (or a significant overlap) also wrote the Fourth Amendment, prohibiting "unreasonable" search and seizure. Thus under an originalist view and a traditional view, there is a very low expectation of privacy at the border, and Fourth Amendment rights are very small there.

They are not quite nonexistent. For example, I believe there was a case a little while ago saying that if they wanted to do a destructive search of your vehicle, they needed reasonable suspicion. RS is a very, very low standard, but it is a standard.

There is a more legitimate dispute about searching the contents of electronic devices. (Because it is more intrusive, since they can contain massive amounts of information about your life.) But regarding the border search exception generally, GP is correct that there has always been a strong border search exception to the Fourth Amendment warrant requirement. And since the rise of modern warfare, there's really been no legitimate argument against that. (Nations have an existential interest in controlling the movement of chemical, biological, or nuclear weapons.)