Does Homeland Security’s Seizure of Electronic Devices Cross the Border?

[youtube http://www.youtube.com/watch?v=HnhkJC_dpeM&ns?rel=0]

It is the 12^th anniversary of 9/11, and I’m writing this on the plane back to the U.S. from Canada. Flying on the anniversary didn’t make me nervous, which is a testament to my somewhat renewed trust in airline security; trust reinforced by the lack of a terrorist attack since the DOHS was formed on 9/22/01. As I snaked through 67 stressful minutes of pre-customs, customs, and security lines, I watched the gentleman next to me, dark skinned, get pulled aside for additional screening.

Normally, his detention might not have struck me; but just yesterday I learned from a New York Times investigation that when we cross an international border, our electronic devices can be confiscated, accessed and analyzed without a regular search warrant. We simply need to be flagged in a certain “list” compiled by our government. This is they type of detail that most people won’t care about until it happens to them – until the inconvenience is theirs, not a stranger’s. But we should care, because privacy-wise, we might be slipping beyond the point of difficult return.

What’s an example of privacy erosion gone too far?

Take the case of David House (detailed in the Times article), a fund-raiser for the legal defense of Chelsea Manning, formerly known as Pfc. Bradley Manning, the soldier convicted of leaking classified documents to WikiLeaks. As the article explains, House knew Manning fairly well. This association with Manning put House on the TECS list (Treasury Enforcement Communications System), which flagged his record so that the next time he crossed a border, Homeland Security could detain him, confiscate all of his electronic devices and copy all of the data on them. Despite the fact that House had already been questioned by the FBI, and that there was neither a specific accusation nor a search warrant in place, Homeland Security interrupted House’s trip to Mexico in 2010.

Two officers seized House’s laptop, camera, thumb drive and cellphone. His devices were then systematically examined for over seven weeks, giving the government enough time copy every file and keystroke House had made since connecting with Manning. House enlisted the aid of the ACLU and sued the government, hoping to shed light on the fact that the government is using border crossings as an opportunity to circumvent our 4^th Amendment rights against unreasonable search and seizure. House and the government eventually reached a settlement, but warrantless digital search and seizure is likely still being practiced.

By my reading (and I have NO LEGAL BACKGROUND) the 4^th Amendment suggests basic rights:

Law enforcement must obtain a warrant before performing a search and/or seizure of our property,
We have the right to have an attorney present during this process,

It doesn’t seem to be covered by the 4^th Amendment, but we should still have the right to correct false information that implicates us in a crime (e.g., inclusion on a terrorist suspect list when we are not a terrorist).

Those basic rights seemed to be waived when we cross international borders.

How did we get here?

In the days after 9/11, our Congress, George W. Bush and a majority of American citizens made the decision that tightening security on a short-term basis was more important than certain civil liberties (e.g., digital privacy, freedom from invasive TSA screening). Together, we passed the Patriot Act, giving the government increased access to information that could help identify terrorists and prevent an Al-Qaeda encore. In the heat of burning buildings and dying Americans, we consciously chose security over privacy. The problem was, our leaders never defined “short term”, nor could we expect them to predict a timeline under these circumstances. “We’ll worry about that later, we said.” Later might finally be here.

From the Patriot Act grew aggressive digital surveillance programs like PRISM and NSA’s other phone and email monitoring that we’ve learned about thanks to the patriot/traitor Edward Snowden, culminating in the recent series of NSA scandals. The reasoning for these programs is fairly rational: if you receive a phone call, email or text from a suspected or known terrorist, or have the recipe for a Boston Marathon-like bomb on your hard drive, chances are you might be a terrorist too. That the logic behind surveillance is so darn logical makes this a difficult conversation.

If you’ve ever read the children’s book, Give a Mouse a Cookie, you understand that the best intentions (giving a cute and “harmless” mouse some food) can have unforeseen consequences (the mouse taking complete control of the house). When we gave Homeland Security access to valuable information that did, in fact, stop actual terrorists attacks, it created a situation difficult to roll back. Once a government tastes the information cookie, it’s virtually impossible to convince them to go back to eating crumbs. In other words, access to information is so effective that it’s addictive. I’m not equating our government to children; I’m saying that the slippery slope of power is something we start learning as kids but occasionally forget as adults. Especially when the adults in power get to say things like: “Are you really so interested in the border screening of digital devices (probably not yours) that you’re willing to risk a plane crashing into the Empire State Building?” Who can, in good conscience, answer “Yes” to this question?

Why the border?

Everything changes at the border, including the rules. You can shop without taxation at Duty Free. You can’t cross over without a passport. You’re X-Rayed, your bags are scanned, and, occasionally, you’re detained for further questioning. You already expect things to be different when you cross a border and you begrudgingly accept the inconvenience. We think of borders as being a dark black line that separates here from there; in reality, borders are a fuzzy gray area where laws and rules and customs are massaged. Homeland Security has taken advantage of this search and seizure gray zone to extend their reach.

Is there a way to protect our devices?

Technologically, no. It’s been recently exposed that the government has built in “back doors” to computing equipment and software that gives them the key to most encryption. House refused to give them Homeland Security the passwords, but they were able to get in anyway. Another potential sign that the addiction has gone a bit too far.

Legislatively, yes. It might be time to revisit the security vs. privacy debate that we took up in 2001. In addition to warrantless border searches, we should add phone-record and email surveillance into the conversation. Until Congress and the President hear from you, they will take your silence as acceptance.

Creatively, yes. Technological wizardry aside, you do have options to protect your privacy as you cross borders. If you are interested in the privacy of your digital devices as you travel, I discuss several options in the video above. The problem is, taking creative steps to protect your privacy when you might never be targeted can be expensive and inconvenient.

John Sileo is a privacy keynote speaker and CEO of The Sileo Group. Sileo’s clients include the Pentagon, Visa, Pfizer and businesses looking to protect the information that makes them profitable.

Screen Shot 2013-09-14 at 4.20.01 PM