DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband.
The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference.
Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance.
The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in.
All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention…
The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda.
The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them.
CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies.
As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations.
As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people.
The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties.