Originally published at: https://boingboing.net/2018/12/18/warrantless-device-searches.html
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It’s an interesting case. One the one hand, the border in the U.S. is a civil rights grey zone (and preview of what authoritarians would love to inflict on everyone within the borders). On the other hand, it doesn’t sound like this person was going through a border control point but rather just trying to board a flight when he was pulled aside.
If CBP wins, this will likely cement its expanded jurisdiction to the entirety of all international airports in the U.S. The grey zone where the law enforcement agency most loyal to Il Douche can ignore the 4th Amendment will grow once again.
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My question/curiosity is, why did he eventually relent and let them check his phone? He had asked for a lawyer and they cuffed him. If anything that’s 100% more reason to wait for your lawyer.
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Yes, it seems strange because he was LEAVING the US. My limited understanding is that the legal justification for warrantless searches by CBP has to do with making sure that people are not smuggling goods into the US without paying the required duties. I suppose that it is possible that exports could violate laws like the Arms Export Control Act.
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I expect that they intimated that he wouldn’t be released in a timely fashion if he did not co-operate. LEOs are trained in intimidation, trained to make you give up your legal rights. The deck was stacked against him.
Having never been held in custody, I don’t really know what I’d do. The cops have lots of experience in intimidation and lots of powerful tools of oppression at their disposal. I have little to no experience at opposing them. So while in my fantasy world, I’d do everything the ACLU tells you to do, I also know that without practice in advance under similar conditions it can be hard to do what you think you’d do when it happens IRL.
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I’m in the same boat, i’m typically very cordial, polite, and happy to cooperate but i’ve never been put in a situation where i was racially profiled in this manner and have the people in charge try to abuse my rights. I’m thankful for that but hard to say how one would react when actually confronted with something of that nature. I really have no idea how i might react, but its certainly something thats always on my mind when traveling.
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I’m still coming to grips with all the tricks LEOs use every day to get people to give up their rights in even the most ordinary of circumstances. I didn’t know until I saw a video on it that when a traffic cops pulls you over and asks you “Do you know why I pulled you over?” they are trying to elicit a confession of guilt, which they will record in their notes while they are writing up the ticket for you. And since you aren’t under arrest and in custody, you have no right to a Miranda warning that you are entitled to consult an attorney and don’t legally have to tell the officer anything other than basic details like what your name is. (And even if you are under arrest and they don’t give you a Miranda warning, they can still use everything you say against you, they just can’t use it as testimony in court.) 
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From the CBP’s policy on electronic device searches at the border:
The border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely.
Sounds like they violated their own policy here. Amazon purchase history is NOT stored in the Amazon app, but rather fetched from the Internet.
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The US is unusually lax about letting people leave its borders without any kind of controls in place. If you’re visiting on a visa, it’s actually on you to notify CBP when you leave through an online portal; they don’t even bother to track it via the passenger manifests (or maybe they do, but still insist on making you do the paperwork, like the IRS does with taxes?)
Most countries I’ve visited have a passport check on the way out as well as on the way in. Sometimes because not all of their residents are allowed to leave whenever they feel like it…
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If this regime continues on into a second term, I expect that exit controls will be instituted for anyone leaving the country. It will get around pesky cases like this one, be a job-creating gift for the ICE/CBP unions that support Dolt-45, and extend the power of the surveillance state. The asset-forfeiture income stream to CBP will also become a billion-dollar business under those terms.
The moment they start seriously floating a trial balloon for border exit controls I and as many of my assets as possible will be leaving this country for good.
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That seems like a policy that would require training in a field quite apart from what most CBP officers specialize in. It also seems worded vaguely enough that ignorance would be adequate cover.
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From what I’ve heard this policy (which the CBP has in common with other nations, or at least Canada, I believe) is usually implemented by just turning on airplane mode before starting the search. That’s pretty easy, even for a CBP agent…
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And the rational basis for border data searches is…?
That you can’t do that in any other part of the US, but boy-howdy, do they wish they could.
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you say that like it’s a bad thing
Oh, don’t mistake me, I love that aspect of our border control policy (maybe the only part I love…)
I was just noting that it is, in my experience, uncommon.
Yea CBP has the same search outbound as inbound to the US. Outbound enforcement, for money, guns, tech etc isn’t as heavily enforced though. This doesnt sound like a random thing. Most likley those officers suspect something for some reason. I mean, do you know how many people from Arab counties flew out of the US that day and were not stopped by CBP? Hundreds if not thousands.
And as a USC he could refuse to open those phones without any real reprocussions. A foreign national would likley be barred if they dont cooperate with CBP.
Generally speaking guns, money and technology get smuggled out of the country.
Generally looking for evidence of a crime. Like a text message where you’re talking about how to hide the drugs or what lie to tell the CBP officer at the border. I have no specific idea in this case but people have shit like that on their phones.
Cory’s phrasing suggests that the Amazon purchase history was gleaned from the gentleman’s e-mails, not from an app. Whenever I buy something from Amazon, it sends me an e-mail confirmation, a copy of which gets stored in my mail client. This information would certainly be visible to someone searching my device offline.
The complaint sort of explains that:
Paras. 43 onwards.
Basically, he asked for an attorney several times.
They allegedly told him that he wasn’t under arrest so wasn’t entitled to an attorney.
He then asked to be released (since he wasn’t under arrest obviously).
Instead of releasing him, they said he was being uppity and locked him in a cell, where they sent a ‘supervisor’ to give him the “we don’t want to lock you up, why won’t you help yourself by submitting to us” talk.
They then put him through the round of several different people asking him the same questions, told him the airline would of course rebook his flight since he was held up by CBP and that he could leave as soon as he opened up his phone.
Otherwise they’d carry on asking him pointless questions until they got bored, take his phone away and give it back to him in 30 days.
He pointed out that he had photos of his wife without her headscarf on his phone and a female agent promised that if he agreed to unlock it she’d go through the phone there and then (with the unspoken implication hanging fairly heavily overhead that if he didn’t agree the (for Mr & Mrs Elsharkawi) very intimate photos of his wife would be pored over by some sweaty male CBP operatives for 30 days.
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