With President Donald Trump's controversial 'Muslim Ban 2.0' set to take effect in a matter of days, it appears that the U.S. border is already devolving into a "Constitution-free zone" as travelers are experiencing a shocking increase in cellphone seizures and searches.
Exclusive reporting published by NBC News late Monday found that the U.S. Department of Customs and Border Patrol (CBP) is on track for a more than 10-fold increase in cellphone searches in just two years, which many say is because law enforcement and the intelligence community are readily exploiting a constitutional loophole that compromises one's right to digital privacy at the U.S. border.
NBC News reporters Cynthia McFadden, E.D. Cauchi, William M. Arkin, and Kevin Monahan examined 25 instances during which either naturalized or native U.S. citizens experienced "CBP officers at airports and border crossings demand[ing] that they hand over their phones and their passwords, or unlock them."
Though the accounts varied widely—by the individuals' age, location, and circumstance—the one consistency is that the vast majority of them, 23 of 25, were Muslim.
And while the policy of "detaining" cellphones has been around for about a decade, it has seemingly exploded in recent years, months—and weeks.
According to data provided to NBC by the Department of Homeland Security (DHS), CBP cellphone searches grew "from fewer than 5,000 in 2015 to nearly 25,000 in 2016. According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015."
DHS has also been asking foreign travelers to hand over their social media account information, as Common Dreams previously reported.
Highlighting the stark increase in phone searches under the new Trump administration, investigative journalist Marcy Wheeler wrote on Twitter on Monday:
CBP Cell Phone Searches:
— emptywheel (@emptywheel) March 13, 2017
NBC News reported:
The more aggressive tactics of the past two years, two senior intelligence officials told NBC News, were sparked by a string of domestic incidents in 2015 and 2016 in which the watch list system and the FBI failed to stop American citizens from conducting attacks. The searches also reflect new abilities to extract contact lists, travel patterns, and other data from phones very quickly.
[...] But the officials caution that rhetoric about a Muslim registry and ban during the presidential campaign also seems to have emboldened federal agents to act more forcefully.
"The shackles are off," Hugh Handeyside, a staff attorney with the ACLU's National Security Project, told the news outlet. "We see individual officers and perhaps supervisors as well pushing those limits, exceeding their authority and violating people's rights."
Indeed, the explosion in cellphone seizures last month coincided with the botched roll-out of President Donald Trump's initial travel ban.
A new version of the ban, which blocks entry to the United States to people from six majority-Muslim countries, is set to take effect on Thursday, barring any court interference.
Five states have now joined Washington state Attorney General Bob Ferguson's lawsuit against the order, which is expected to receive a briefing by the U.S. Department of Justice later on Tuesday, according to the Washington Post. Ferguson won an injunction against the original executive order and is asking that the stay remain in force. Other hearings are scheduled on Wednesday in Hawaii and in a Maryland federal court.
Anticipating an even greater uptick in invasive border searches, the digital rights watchdog group Electronic Frontier Foundation (EFF) last week released a guide to protecting digital information for travelers to and from the U.S. It recommends that travelers do a personal risk assessment ahead of time and and consider leaving some devices at home, or moving sensitive information off of them and into the cloud, as well as using encryption.
Observing that "border agents have more power than police officers normally do, and people crossing the border have less privacy than they usually expect," EFF staff attorney Sophia Cope said that it is not necessary illegal for border agents to "demand that you unlock your phone, provide your laptop password, or disclose your social media handles."
The Fourth Amendment, which typically protects people from searches and seizures, does not pertain to border crossings or airport terminals. But, as the ACLU's Handeyside explained to NBC, although that provision's "warrant requirement doesn't apply at the border, its 'general reasonableness' requirement still does, and is supposed to protect against unreasonable searches and seizures," the outlet summarized.
"That may seem nuanced, but it's a critical distinction," said Handeyside. "We don't surrender our constitutional rights at the border."
EFF senior staff attorney Adam Schwartz similarly declared, "The border is not a Constitution-free zone, but sometimes the rules are less protective of travelers and some border agents can be aggressive. That can put unprepared travelers in a no-win dilemma at the U.S. border."