Depositions Show Border Agents Conducting Searches of Electronics Beyond Immigration Scope

Canary. Photo by 4028mdk09.

Eleven days ago we asked Is ICE Now Aided By ‘Enhanced” Spy Powers?

Now reports are saying the Trump administration’s Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) which houses ICE “has quietly grown closer to as least one of America’s intelligence agencies.”

In the letter, Glawe wrote that cooperation between I&A and ICE has grown. He made this revelation in a wordy, vague paragraph laden with intel jargon:

“As a result of this realignment, as well as our ongoing efforts to integrate DHS field and functional intelligence activities into a fully synchronized and cohesive enterprise; I&A is providing improved and enhanced intelligence capabilities to DHS components, including ICE and CBP, as well as the interagency. These capabilities include collection, reporting, and analysis to support a DHS enterprise that fuses intelligence into operational functions, disciplines, and activities to inform actions that neutralize threats to the homeland. The cumulative impact of these efforts are more focused and integrated intelligence capabilities and products which meet customer requirements.”

Read literally—as these letters should be—Glawe’s letter says ICE has received “enhanced intelligence capabilities,” including collection. “Collection” refers to the process of gathering information and intelligence. Some collection methods generate acute concern among civil liberties advocates.

TNB April 25, 2019

NPR now reports that the ACLU says “it has uncovered new evidence that federal border agents are violating the Constitution when they search travelers’ electronic devices,” beyond their scope of immigration enforcement.

“The government cannot use the pretext of the border to make an end run around the Constitution.”

ACLU – We Got U.S. Border Officials to Testify Under Oath. Here’s What We Found Out.

In September 2017, we, along with the Electronic Frontier Foundation, sued the federal government for its warrantless and suspicionless searches of phones and laptops at airports and other U.S. ports of entry.

The government immediately tried to dismiss our case, arguing that the First and Fourth Amendments do not protect against such searches. But the court ruled that our clients — 10 U.S. citizens and one lawful permanent resident whose phones and laptops were searched while returning to the United States — could move forward with their claims.

Since then, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have had to turn over documents and evidence about why and how they conduct warrantless and suspicionless searches of electronic devices at the border. And their officials have had to sit down with us to explain — under oath — their policies and practices governing such warrantless searches.


The ACLU describe that what they have learned was so alarming they are back in court with the new evidence to ask the judge for a summary judgement to skip the trial and go straight to ruling on the case for their clients.

According to NPR:

Customs and Border Protection policy implemented in 2018 permits two kinds of searches: basic and advanced. In a basic search, an officer looks through an electronic device manually. In an advanced search, the officer connects external equipment to the device in order to review and sometimes copy its contents.

CBP policy allows basic searches without any suspicion of wrongdoing; advanced searches require a “reasonable suspicion of activity in violation of the laws enforced or administered by CBP” or a “national security concern.” U.S. Immigration and Customs Enforcement has a similar policy permitting both basic and advanced searches.

In a legal filing, the agencies said their searches were “a crucial tool for detecting evidence relating to terrorism and other national security matters” and “can also reveal information about financial and commercial crimes.”


The ACLU argues both those searches “go far beyond what the Constitution allows….The government cannot use the border to circumvent the Constitution.”

According to the complaint, while border agents do possess the authority to conduct reasonable searches of belongings for contraband or who is legally admissible into the U.S, the agents are now claiming they have “authority to search travelers’ devices for general law enforcement purposes, such as looking for potential evidence of illegal activity beyond violations of immigration and customs laws.”

“That claimed authority extends to enforcing ‘hundreds’ of federal laws, including tax, bankruptcy, environmental, and consumer protection laws. Defendants’ asserted purposes for conducting warrantless or suspicionless device searches also include intelligence gathering or advancing pre-existing investigations.”

The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws. The agencies’ policies allow officers to search devices for general law enforcement purposes, such as investigating and enforcing bankruptcy, environmental, and consumer protection laws. The agencies also say that they can search and seize devices for the purpose of compiling “risk assessments” or to advance pre-existing investigations. The policies even allow officers to consider requests from other government agencies to search specific travelers’ devices.

CBP and ICE also say they can search a traveler’s electronic devices to find information about someone else. That means they can search a U.S. citizen’s devices to probe whether that person’s family or friends may be undocumented; the devices of a journalist or scholar with foreign sources who may be of interest to the U.S. government; or the devices of a traveler who is the business partner or colleague of someone under investigation.

Both agencies allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

We’ll continue to keep an eye on this.

Side Note

ICYMI, readers are reminded about this March 8 Canary report, Trump Administration Created Secret Database of Dossiers Targeting US Citizens & Journalists at Border.

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