In the first full month after President Donald Trump’s inauguration, warrantless searches of electronic devices by U.S. Customs and Border Protection — which had already dramatically expanded during the Obama administration — exploded beyond anything on record. According to numbers obtained by NBC, border agents searched 5,000 devices in February, more than in all of 2015, and on pace to more than double the number of searches in 2016.
The borders have long been a space where law enforcement can search even American citizens without cause, according to ACLU officials, but that has traditionally meant CBP agents rifling through luggage and briefcases. Now, CBP is looking through electronic devices, demanding social media passwords, deploying unmanned drones, and using facial recognition software to verify identities at airports. Border patrol agents have existed in America in one form or another since 1924, but the current Customs and Border Protection came into being in 2003, as a part of the recently created Department of Homeland Security. The number of agents more than doubled during the combined 16 years of the George W. Bush and Barack Obama administrations, from 10,000 to more than 21,000 agents.
After years of expanding powers and creeping militarization, the CBP now has a mandate from the Trump administration. Brandon Judd, President of the National Border Patrol Council, said last year in announcing his group’s endorsement of Trump in the Republican primary that Trump “wants to take [the] handcuffs off” the agency, and anecdotal reporting says morale in CBP is higher than ever. This special status, coupled with the agency’s surveillance apparatus, and extralegal jurisdiction, means that CBP is starting to look more and more like the NSA — especially since CBP is being extremely secretive.
“One of the things that advocates are really concerned about right now is the lack of transparency,” Esha Bhandari, a staff attorney at the American Civil Liberties Union who focuses on these issues, told The Outline. “Why are the searches being conducted in any individual situation? We have not seen, and certainly not from the Trump administration, any statement of policy that explains the circumstances under which this asserted power is being used … How random is it? How often is there individualized suspicion? How often is there not individualized suspicion? Is there racial or religious or ethnic profiling going on? These are all questions that are hard to answer without DHS being public about it.”
The most visible impact of this trend is the number of electronic device searches of visitors, residents, and citizens. According to the ACLU, border patrol agents began seizing and searching electronic devices at the border during the later years of the Bush administration. Under Obama, the practice increased, in part because of advances in technology that made the searches more fruitful for agents.
“It’s clear that we’re seeing an upward trend in the number of device searches,” Bhandari told The Outline. “The more technology that DHS acquires that enables more intrusive forensic searches of devices — searches of metadata and deleted files — mean that people whose devices are seized at the border are really at risk of having their entire lives exposed, even when there is no individualized suspicion of wrongdoing at all.”
The issue has received increased attention lately, in part because of a bill proposed earlier this month by Senators Ron Wyden (D-Oregon) and Rand Paul (R-Kentucky), and House members Jared Polis (D-Colorado) and Blake Farenthold (R-Texas) that would require border agents to get a warrant in order to search through cellphones, laptops, and other electronic devices. The bill asserts that warrantless electronic searches, even at the borders, are a violation of the Fourth Amendment.
“The real question is about this long-running warrant exception to the Fourth Amendment that applies at the border, and how does that apply to electronic devices?” Bhandari said. “We at the ACLU believe it does not, and that the warrant exception really applies to such things as luggage, [and] the physical objects that you are carrying with you across the border.”
The CBP takes the opposite stance, making clear in a 2009 directive that it feels entitled to search through emails, texts, and other personal information. “In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border,” the directive states. It defines electronic devices as “any devices that may contain information, such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.”
“The real question is about this long-running warrant exception to the Fourth Amendment that applies at the border...”
It's not just about the border, either. CBP’s jurisdiction stretches 100 miles in from the borders, meaning that it can operate in major population centers.
It all adds up to an agency that has been growing its surveillance capabilities for several years, and is further emboldened to do so under a president it sees as an ally. The effect of citizens and immigrants alike could be profound.
“People will see reporting on the rising numbers of searches, and that can contribute to people’s fears,” the ACLU’s Bhandari said. “And that can contribute to a chilling effect on people’s freedom of expression and association.”