Seth Harp is a journalist and like many white people, was not quite aware of how militarized the US immigration system has become because on his return from his frequent trips abroad, he is usually waived through immigration after being asked a few perfunctory questions. That is, until he returned recently from an assignment in Mexico and was subject to ‘secondary screening’, that he dewcribes as “a quasi-custodial law enforcement process that takes place in the Homeland Security zone of the airport.” He was interrogated for hours by the Customs and Border Protection agency that has become a gun-toting quasi-military force, and they ransacked his phone and laptop after demanding that he give them the passwords.
In retrospect, I was naive about the kind of agency CBP has become in the Trump era. Though I’ve reported several magazine stories in Mexico, none have been about immigration. Of course, I knew these were the guys putting kids in cages, separating refugee children from their parents, and that Trump’s whole shtick is vilifying immigrants, leading to many sad and ugly scenes at the border, including the farcical deployment of U.S. troops.
When asked to comment on specific details in this story, a CBP spokesperson responded with a canned statement replete with the sort of pseudo-military terminology that betrays the agency’s sense of itself not as a civil customs service but as some kind of counterterrorism strike force.
The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals.
IN GENERAL, LAW enforcement agents have to get a warrant to search your electronic devices. That’s the gist of the 2014 Supreme Court case Riley v. California. But the Riley ruling only applies when the police arrest you. The Supreme Court has not yet decided whether the same protections apply to American citizens reentering the United States from abroad, and federal appeals courts have issued contradictory opinions. In the absence of a controlling legal authority, CBP goes by its own rules, namely CBP Directive No. 3340-049A, pursuant to which CBP can search any person’s device, at any time, for any reason, or for no reason at all. If you refuse to give up your password, CBP’s policy is to seize the device. The agency may use “external equipment” to crack the passcode, “not merely to gain access to the device, but to review, copy, and/or analyze its contents,” according to the directive. CBP can look for any kind of evidence, any kind of information, and can share what it finds with any other federal agency, so long as doing so is “consistent with applicable law and policy.”
I had my doubts as to whether they could actually crack my iPhone and MacBook, but I didn’t doubt that they would be happy to confiscate them. So I decided to take another tack: I told the officers I had nothing to hide, but I felt I had a professional obligation to call an attorney for further advice. Pomeroy said I could not because I wasn’t under arrest; I just wasn’t allowed to enter the United States.
What most people do not realize is that the CBP not only has immense power over anyone in the border regions, the ‘border’ is defined as any area within 100 miles of the boundaries of the US. This includes pretty much most of the densely populated areas of the US. I recall reading estimates that 2/3 of the US populations are residents of the ‘border’. So I in Cleveland am in the border region and even if I do not leave the country, can be picked up by the CBP and treated just like Harp was, or likely worse since I am a person of color.
The authoritarian measures that have been introduced under the presumption that they would be used against undocumented immigrants are now being turned against US citizens as well. That should not be a surprise. Governments initially bring in authoritarian measures against ‘them’ in order to gain ‘our’ acceptance before later turning those same measures against ‘us’. People should realize that in the long run, the real distinction between ‘them’ and ‘us’ in the eyes of the authoritarians is not based on citizenship or nationality but on whether you are pro-authoritarian or not.