Many people think that border-related policies impact only people living in border towns like El Paso or San Diego. The reality is that Border Patrol’s interior enforcement operations encroach deep into and across the United States, affecting the majority of Americans.
Roughly two-thirds of the United States’ population, about 200 million people, lives within the 100-mile zone that an outdated federal regulation defines as the border zone—that is, within 100 miles of a U.S. land or coastal border.
Although this zone is not literally “Constitution free”—constitutional protections do still apply—the Border Patrol frequently ignores those protections and runs roughshod over individuals’ civil liberties.
The Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.
According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called “ports of entry”), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a “routine search,” such as searching luggage or a vehicle.
Even in places far removed from the border, deep into the interior of the country, immigration officials enjoy broad—though not limitless—powers. Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. “external boundary.”
In this 100-mile zone, Border Patrol agents have certain extra-Constitutional powers. For instance, Border Patrol can operate immigration checkpoints.
Border Patrol, nevertheless, cannot pull anyone over without “reasonable suspicion” of an immigration violation or crime (reasonable suspicion is more than just a “hunch”). Similarly, Border Patrol cannot search vehicles in the 100-mile zone without a warrant or “probable cause” (a reasonable belief, based on the circumstances, that an immigration violation or crime has likely occurred).
In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by CBP and the U.S. Department of Homeland Security, and the consistent failure of CBP to hold agents accountable for abuse. Thus, although the 100-mile border zone is not literally “Constitution free,” the U.S. government frequently acts like it is.
Much of U.S. Population Affected
Many people think that border-related policies only impact people living in border towns like El Paso or San Diego. The reality is that Border Patrol’s interior enforcement operations encroach deep into and across the United States, affecting the majority of Americans.
Roughly two-thirds of the United States’ population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That’s about 200 million people.
Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area.
Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose.
Outdated Legal Authority and Lack of Oversight
The regulations establishing the 100-mile border zone were adopted by the U.S. Department of Justice in 1953—without any public comments or debate. At the time, there were fewer than 1,100 Border Patrol agents nationwide; today, there are over 21,000.
The Border Patrol often ignores this regulation and rejects any geographic limitation on agents’ authority. At least two federal circuit courts condone Border Patrol operations outside the 100-mile zone, federal regulations and Supreme Court precedent notwithstanding.
Federal border agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing, and often in ways that our Constitution does not permit.
For example, Border Patrol, according to news reports, operates approximately 170 interior checkpoints throughout the country (the actual number in operation at any given time is not publicly known). The ACLU believes that these checkpoints amount to dragnet, suspicionless stops that cannot be reconciled with Fourth Amendment protections. The Supreme Court has upheld the use of immigration checkpoints, but only insofar as the stops consist only of a brief and limited inquiry into residence status. Checkpoints cannot be primarily used for drug-search or general law enforcement efforts. In practice, however, Border Patrol agents often do not limit themselves to brief immigration inquiries and regularly conduct criminal investigations and illegal searches at checkpoints. The Border Patrol also frequently pulls over motorists in “roving patrol” stops, often without any suspicion that an immigration violation has occurred.
The ACLU has documented numerous cases of abuse by Border Patrol and filed lawsuits to obtain more information about the agency’s practices. Given Border Patrol’s lack of transparency, and in the absence of any meaningful oversight, there is still much that we don’t know about the full extent and impact of these interior “border enforcement” operations.
Part of a Broader Problem
The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers’ electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least “reasonable suspicion” prior to conducting such searches and recent Supreme Court precedent seems to support that view.
These practices also coincide with the spread of numerous border technologies, including watch list and database systems (such as the Automated Targeting System traveler risk assessment program), advanced identification and tracking systems (including electronic passports), and intrusive technological schemes such as the “virtual border fence” and unmanned aerial vehicles (aka “drone aircraft”). With many of these technologies in the hands of private companies, there are powerful financial incentives for the continued “militarization” of the border zone.
The expansion of government power both at and near the border is part of a trend toward expanding police and national security powers without regard to the effect of such expansion on our most fundamental and treasured Constitutional rights. The federal government’s dragnet approach to law enforcement and national security is one that is increasingly turning us all into suspects. If Americans do not continue to challenge the expansion of federal power over the individual, we risk forfeiting the fundamental rights and freedoms that we inherited—including the right to simply go about our business free from government interference, harassment and abuse.
La Carta de los Derechos de la Constitución de los Estados Unidos señala en la Cuarta Enmienda:
“El derecho de los habitantes de que sus personas, domicilios, papeles y efectos se hallen a salvo de pesquisas y aprehensiones arbitrarias, será inviolable, y no se expedirán al efecto mandamientos que no se apoyen en un motivo verosímil, estén corroborados mediante juramento o protesta y describan con particularidad el lugar que deba ser registrado y las personas o cosas que han de ser detenidas o embargadas.”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Así mismo, la Primera Enmienda:
“El Congreso no podrá hacer ninguna ley con respecto al establecimiento de la religión, ni prohibiendo la libre práctica de la misma; ni limitando la libertad de expresión, ni de prensa; ni el derecho a la asamblea pacífica de las personas, ni de solicitar al gobierno una compensación de agravios.”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Recent detentions and seizures of phones and other material from travelers to the United States have sparked concern and alarm.
Travelers arrive at the international terminal at John F. Kennedy International Airport on March 6th, 2017, in New York City. (Photo: Drew Angerer/Getty Images)
A NASA scientist heading home to the United States said he was detained in January at a Houston airport, where Customs and Border Protection officers pressured him for access to his work phone and its potentially sensitive contents.
Last month, CPB agents checked the identification of passengers leaving a domestic flight at New York’s John F. Kennedy Airport during a search for an immigrant with a deportation order.
And in October, border agents seized phones and other work-related material from a Canadian photojournalist. They blocked him from entering the U.S. after he refused to unlock the phones, citing his obligation to protect his sources.
These and other recentincidents have revived confusion and alarm over what powers border officials actually have and, perhaps more importantly, how to know when they are overstepping their authority.
The unsettling fact is that border officials have long had broad powers — many people just don’t know about them. Border officials, for instance, have search powers that extend 100 air miles inland from any external boundary of the U.S. That means border agents can stop and question people at fixed checkpoints dozens of miles from U.S. borders. They can also pull over motorists whom they suspect of a crime as part of “roving” border patrol operations.
Sowing even more uneasiness, ambiguity around the agency’s search powers — especially over electronic devices — has persisted for years as courts nationwide address legal challenges raised by travelers, privacy advocates, and civil rights groups.
We’ve dug out answers about the current state-of-play when it comes to border searches, along with links to more detailed resources.
Doesn’t the Fourth Amendment protect us from “unreasonable searches and seizures”?
Yes. The Fourth Amendment to the Constitution articulates the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” However, those protections are lessened when entering the country at international terminals at airports, other ports of entry, and subsequently any location that falls within 100 air miles of an external U.S. boundary.
How broad is Customs and Border Protection’s search authority?
According to federal statutes, regulations, and court decisions, CBP officers have the authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. CBP can also question individuals about their citizenship or immigration status and ask for documents that prove admissibility into the country.
This blanket authority for warrantless, routine searches at a port of entry ends when CBP decides to undertake a more invasive procedure, such as a body cavity search. For these kinds of actions, the CBP official needs to have some level of suspicion that a particular person is engaged in illicit activity, not simply that the individual is trying to enter the U.S.
Does CBP’s search authority cover electronic devices like smartphones and laptops?
Yes. CBP refers to several statutes and regulations in justifying its authority to examine “computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.”
According to current CBP policy, officials should search electronic devices with a supervisor in the room, when feasible, and also in front of the person being questioned “unless there are national security, law enforcement, or other operational considerations” that take priority. For instance, if allowing a traveler to witness the search would reveal sensitive law enforcement techniques or compromise an investigation, “it may not be appropriate to allow the individual to be aware of or participate in a border search,” according to a 2009 privacy impact assessment by the Department of Homeland Security.
CBP says it can conduct these searches “with or without” specific suspicion that the person who possesses the items is involved in a crime.
With a supervisor’s sign-off, CBP officers can also seize an electronic device — or a copy of the information on the device — “for a brief, reasonable period of time to perform a thorough border search.” Such seizures typically shouldn’t exceed five days, although officers can apply for extensions in up to one-week increments, according to CBP policy. If a review of the device and its contents does not turn up probable cause for seizing it, CBP says it will destroy the copied information and return the device to its owner.
Can CBP really search my electronic devices without any specific suspicion that I might have committed a crime?
The Supreme Court has not directly ruled on this issue. However, a 2013 decision from the U.S. Court of Appeals for the Ninth Circuit — one level below the Supreme Court — provides some guidance on potential limits to CBP’s search authority.
In a majority decision, the court affirmed that cursory searches of laptops — such as having travelers turn their devices on and then examining their contents — does not require any specific suspicions about the travelers to justify them.
The court, however, raised the bar for a “forensic examination” of the devices, such as using “computer software to analyze a hard drive.” For these more powerful, intrusive, and comprehensive searches, which could provide access to deleted files and search histories, password-protected information and other private details, border officials must have a “reasonable suspicion” of criminal activity — not just a hunch.
As it stands, the 2013 appeals court decision legally applies only to the nine Western states in the Ninth Circuit, including California, Arizona, Nevada, Oregon, and Washington. It’s not clear whether CBP has taken the 2013 decision into account more broadly: The last time the agency publicly updated its policy for searching electronic devices was in 2009. CBP is currently reviewing that policy and there is “no specific timeline” for when an updated version might be announced, according to the agency.
“Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives,” the court’s decision said. “It is little comfort to assume that the government — for now — does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome.”
During the 2016 fiscal year, CBP officials conducted 23,877 electronic media searches, a five-fold increase from the previous year. In both the 2015 and 2016 fiscal years, the agency processed more than 380 million arriving travelers.
Am I legally required to disclose the password for my electronic device or social media, if CBP asks for it?
That’s still an unsettled question, according to Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “Until it becomes clear that it’s illegal to do that, they’re going to continue to ask,” she said.
The Fifth Amendment says that no one shall be made to serve as “a witness against himself” in a criminal case. Lower courts, however, have produced differing decisions on how exactly the Fifth Amendment applies to the disclosure of passwords to electronic devices.
Customs officers have the statutory authority “to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by customs officers, if such assistance may be necessary.” That statute has traditionally been invoked by immigration agents to enlist the help of local, state, and other federal law enforcement agencies, according to Nathan Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. Whether the statute also compels individuals being interrogated by border officials to divulge their passwords has not been directly addressed by a court, Wessler said.
Even with this legal uncertainty, CBP officials have broad leverage to induce travelers to share password information, especially when someone just wants to catch their flight, get home to family, or be allowed to enter the country. “Failure to provide information to assist CBP may result in the detention and/or seizure of the electronic device,” according to a statement provided by CBP.
Travelers who refuse to give up passwords could also be detained for longer periods and have their bags searched more intrusively. Foreign visitors could be turned away at the border, and green card holders could be questioned and challenged about their continued legal status.
“People need to think about their own risks when they are deciding what to do. U.S. citizens may be comfortable doing things that non-citizens aren’t, because of how CBP may react,” Wessler said.
What is some practical advice for protecting my digital information?
Consider which devices you absolutely need to travel with, and which ones you can leave at home. Setting a strong password and encrypting your devices are helpful in protecting your data, but you may still lose access to your devices for undefined periods should border officials decide to seize and examine their contents.
Another option is to leave all of your devices behind and carry a travel-only phone free of most personal information. However, even this approach carries risks. “We also flag the reality that if you go to extreme measures to protect your data at the border, that itself may raise suspicion with border agents,” according to Sophia Cope, a staff attorney at the Electronic Frontier Foundation. “It’s so hard to tell what a single border agent is going to do.”
The EFF has released an updated guide to data protection options here.
Does CBP recognize any exceptions to what it can examine on electronic devices?
If CBP officials want to search legal documents, attorney work product, or information protected by attorney-client privilege, they may have to follow “special handling procedures,” according to agency policy. If there’s suspicion that the information includes evidence of a crime or otherwise relates to “the jurisdiction of CBP,” the border official must consult the CBP associate/assistant chief counsel before undertaking the search.
As for medical records and journalists’ notes, CBP says its officers will follow relevant federal laws and agency policies in handling them. When asked for more information on these procedures, an agency spokesperson said that CBP has “specific provisions” for dealing with this kind of information, but did not elaborate further. Questions that arise regarding these potentially sensitive materials can be handled by the CBP associate/assistant chief counsel, according to CBP policy. The agency also says that it will protect business or commercial information from “unauthorized disclosure.”
Am I entitled to a lawyer if I’m detained for further questioning by CBP?
No. According to a statement provided by CBP, “All international travelers arriving to the U.S. are subject to CBP processing, and travelers bear the burden of proof to establish that they are clearly eligible to enter the United States. Travelers are not entitled to representation during CBP administrative processing, such as primary and secondary inspection.”
Even so, some immigration lawyers recommend that travelers carry with them the number for a legal aid hotline or a specific lawyer who will be able to help them, should they get detained for further questioning at a port of entry.
“It is good practice to ask to speak to a lawyer,” said Paromita Shah, associate director at the National Immigration Project of the National Lawyers Guild. “We always encourage people to have a number where their attorney can be reached, so they can explain what is happening and their attorney can try to intervene. It’s definitely true that they may not be able to get into the actual space, but they can certainly intervene.”
Lawyers who fill out this form on behalf of a traveler headed into the U.S. might be allowed to advocate for that individual, although local practices can vary, according to Shah.
Can I record my interaction with CBP officials?
Individuals on public land are allowed to record and photograph CBP operations so long as their actions do not hinder traffic, according to CBP. However, the agency prohibits recording and photography in locations with special security and privacy concerns, including some parts of international airports and other secure port areas.
Does CBP’s power to stop and question people extend beyond the border and ports of entry?
Yes. Federal statutes and regulations empower CBP to conduct warrantless searches for people traveling illegally from another country in any “railway car, aircraft, conveyance, or vehicle” within 100 air miles from “any external boundary” of the country. About two-thirds of the U.S. population live in this zone, including the residents of New York City, Los Angeles, Chicago, Philadelphia, and Houston, according to the ACLU.
As a result, CBP currently operates 35 checkpoints, where they can stop and question motorists traveling in the U.S. about their immigration status and make “quick observations of what is in plain view” in the vehicle without a warrant, according to the agency. Even at a checkpoint, however, border officials cannot search a vehicle’s contents or its occupants unless they have probable cause of wrongdoing, the agency says. Failing that, CBP officials can ask motorists to allow them to conduct a search, but travelers are not obligated to give consent.
When asked how many people were stopped at CBP checkpoints in recent years, as well as the proportion of those individuals detained for further scrutiny, CBP said they didn’t have the data “on hand” but that the number of people referred for secondary questioning was “minimum.” At the same time, the agency says that checkpoints “have proven to be highly effective tools in halting the flow of illegal traffic into the United States.”
Within 25 miles of any external boundary, CBP has the additional patrol power to enter onto private land, not including dwellings, without a warrant.
Where can CBP set up checkpoints?
CBP chooses checkpoint locations within the 100-mile zone that help “maximize border enforcement while minimizing effects on legitimate traffic,” the agency says.
At airports that fall within the 100-mile zone, CBP can also set up checkpoints next to airport security to screen domestic passengers who are trying to board their flights, according to Chris Rickerd, a policy counsel at the ACLU’s National Political Advocacy Department.
“When you fly out of an airport in the southwestern border, say McAllen, Brownsville, or El Paso, you have Border Patrol standing beside TSA when they’re doing the checks for security. They ask you the same questions as when you’re at a checkpoint. ‘Are you a U.S. citizen?’ They’re essentially doing a brief immigration inquiry in the airport because it’s part of the 100-mile zone,” Rickerd said. “I haven’t seen this at the northern border.”
Can CBP do anything outside of the 100-mile zone?
Yes. Many of CBP’s law enforcement and patrol activities, such as questioning individuals, collecting evidence, and making arrests, are not subject to the 100-mile rule, the agency says. For instance, the geographical limit does not apply to stops in which border agents pull a vehicle over as part of a “roving patrol” and not a fixed checkpoint, according to Rickerd of the ACLU. In these scenarios, border agents need reasonable suspicion that an immigration violation or crime has occurred to justify the stop, Rickerd said.
The ACLU has sued the government multipletimes for data on roving patrol and checkpoint stops. Based on an analysis of records released in response to one of those lawsuits, the ACLU found that CBP officials in Arizona failed “to record any stops that do not lead to an arrest, even when the stop results in a lengthy detention, search, and/or property damage.”
The lack of detailed and easily accessible data poses a challenge to those seeking to hold CBP accountable to its duties.
“On the one hand, we fight so hard for reasonable suspicion to actually exist rather than just the whim of an officer to stop someone, but on the other hand, it’s not a standard with a lot of teeth,” Rickerd said. “The courts would scrutinize it to see if there’s anything impermissible about what’s going on. But if we don’t have data, how do you figure that out?”
This story originally appeared on ProPublica as “Can Customs and Border Officials Search Your Phone? These Are Your Rights” and is republished here under a Creative Commons license.