An incident Thursday in which federal agents reportedly demanded access to a Wall Street Journal reporter’s mobile phone as she entered the country highlights the broad and vague powers of the Department of Homeland Security (DHS). But the government is actually using a little-discussed loophole in border security law to dubiously claim authority that goes shockingly further than allowing warrantless searches at airports.
Maria Abi-Habib, a WSJ reporter who covers Middle Eastern terrorism, was stopped at the Los Angeles airport on Thursday, where DHS agents attempted to seize her cell phone to “collect information,” presenting a document they said gave them the right to do so without a warrant. Abi-Habib refused, explaining to the agents that she had to protect the confidentiality of her sources, and told the agents to contact the Journal’s lawyers. She was eventually released without being forced to give up her phone, although she reportedly said she thought the main reason for this was because of her backing from a major media outlet.
Such suspicionless demands to search phones or other devices capable of storing sensitive information at airports may seem like a shocking invasion of privacy, but they’re nothing new. Despite the 2014 Supreme Court ruling that requires police officers to get warrants to search arrested suspects’ phones (or other data storage devices), a staffer with the Executive Office for U.S. Attorneys has argued that the “border exception” to the Fourth Amendment’s warrant requirement essentially means that border agents can still search anyone’s phone without reasonable suspicion for anything but “cloud data,” which agents should avoid accessing.
“One technique involves pressing the power button to activate airplane mode, thereby ensuring that cloud data is not accessed until a search warrant can be obtained,” the EOUSA attorney writes.
If federal agents claiming legal authority to search the contents of laptops and phones at airports and other border entry points for no reason at all seems a little scary, though, the full extent of the powers the government is claiming in this area is nothing short of terrifying.
A provision of post-9/11 terrorism legislation that has received remarkably little media attention actually allows DHS agents to perform warrantless searches of electronic devices not only at the border, but anywhere within 100 miles of it, and a federal judge’s 2014 decision holds that such searches do not even require “reasonable suspicion.” The area within 100 miles of the border, which the American Civil Liberties Union calls a “Constitution-free Zone,” includes the coastal areas along America’s oceanic borders, an area that is home to nearly 200 million people, or close to two thirds of the U.S. population.
So, regrettably, the recent case of DHS agents attempting to seize and search reporter Abi-Habib’s device represents only the tip of the iceberg when it comes to grotesquely intrusive police powers that the post-9/11 U.S. government claims. An ironic footnote to this tale of government overreach and bureaucratic madness, however, is that the 2014 Supreme Court ruling requiring warrants for police searches of cell phones was based on the cases of David Riley of San Diego and Brima Wurie of Boston – both cities well within the 100-mile-from-the-border DHS Constitution-free Zone.
This raises important questions. In the world of contorted logic where federal attorneys dwell, how far does the DHS’ authority to search phones and laptops for no reason truly extend? Does it go beyond in-person searches to include searches conducted using high-tech devices, such as IMSI-catchers (a.k.a. Stingrays) that mimic cell towers to scoop up nearby phone data?
What about a hypothetical situation where local police want a suspect’s cell phone data but are legally prevented from getting it themselves, so they call up their friends with U.S. Customs and Border Protection and ask them to set up a makeshift checkpoint that the local cops can then drive through with the suspect handcuffed in the back of their squad car, thereby triggering legal justification for a search? Could this have been a practical workaround for local law enforcement in the Riley or Wurie cases? (Or perhaps more realistically, could local cops just call up the feds and ask them to do the search of a confiscated phone under some vague immigration-related pretext and then share any valuable intel?) This kind of thing may sound completely outlandish, ludicrous, paranoid and far-fetched. But then again, so do the U.S. government’s arguments for the warrantless search authority it claims.
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