“Welcome back to the USA”

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.


  1. says

    I’m sure public officials get searched like this all the time. No, wait, weren’t the republicans complaining about being under surveillance? What happened to my pot of gander-sauce?

  2. jrkrideau says

    Can you say, “KGB”?
    Definitely Damascus for my next vacation. Forget Orlando.

    I think I read that Osama bin Laudin financed the 9/11 attack for under $500,000 and started a self-sustaining revolution. Amazing.

  3. jrkrideau says

    I was reading a book by an anthropologist who did her Ph.D on the people who maintain? the Fedora OS (@ Marcus I know I probably mangled the terms).

    Fellow students commiserated with her that she would have to go to California while they caught exotic diseases in New Guinea or ate bugs in Madagascar.

    As part of her research she ran into Anonymous and later has done research on them. I believe she is a US citizen but is on faculty at McGill. She describes getting ready to cross the border going south. Audit papers, check for USB sticks, make sure to take the correct phone and so on. This sounds more like a Cold War spy courier than a respected academic.

    After reading about Seth Harp’s experience I begin to grasp her precautions.

  4. Lassi Hippeläinen says

    When I was still working, the employer had a policy: don’t travel with a laptop. Before trip all necessary files could be uploaded to the corporate cloud. When arriving, the local office had a clean laptop waiting. Use it as your own, and download from the cloud any files you feel you need.

    That idea is simple to implement even without an employer. You just rent a machine after arrival. Or buy a cheap netbook and dispose it at the end, like real criminals.

    Voyering into people’s laptops (and phones) is just a way to show who is the boss.

  5. konrad_arflane says

    This jumped out at me from the article:

    I learned that I was not under arrest or suspected of any crime, and my citizenship was not in doubt, but if I didn’t answer the question asked by the “incident officer,” I wouldn’t be allowed into the United States.

    What’s a citizenship worth, if it doesn’t guarantee you entry into the relevant country?

  6. Jazzlet says

    It’s been a long time since I felt comfortable with the procedures I would have to go through to enter the USA. It’s a shame as some of the parts I have been to were beautiful, we do not have that scale of wilderness in the UK, and many of the people we met were lovely, but there it is.

  7. johnson catman says

    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.

    I can call an attorney anytime I feel that I need one. I don’t have to be under arrest to talk to an attorney. What kind of authoritarian bullshit are they attempting?

  8. Mano Singham says

    johnson catman,

    The question of what rights you have when entering the country is a murky area. The US Supreme Court has suggested that ports of entry are not technically within the US and thus the normal laws and rights do not apply and that immigration authorities have wide leeway on how to treat people.

  9. lanir says

    There’s no way a bunch of bumbling federal employees are going to find anything on a laptop or phone that the owner doesn’t want them to find. Not if the owner knows it’s coming and does some minimal research online.

    Personally if I wanted to get around this sort of nonsense I’d probably pick up a burner phone and a spare laptop. When I was done I’d encrypt a copy of any data I wanted to keep and send it over the network, then factory reset everything. Probably pitch the SIM card in the phone, too. Let them bumble through initializing the phone and the laptop all they want. A less expensive but more time consuming version is to use existing devices and make backups, then factory reset everything at the start of the trip and again before you visit customs. If they want to be useless, underfoot and nosy, why shouldn’t they have the joy of setting up your hardware just so they can see there’s nothing on it?

  10. johnson catman says

    Mano @10: So, if I call an attorney before allowing anything, will they arrest me? If so, I would then have the “right” to call an attorney (according to the officer)?

  11. Mano Singham says

    johnson catman,

    I am of course not a lawyer but as I understand it the CBP can ‘detain’ you and since you are technically considered to not be ‘in’ the US since you have not passed through immigration, you do not have the right to a lawyer

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