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Privacy Complaints and Border Control

On Behalf of | Dec 29, 2017 | Nacht Law in the News |

In the 1970s, with rising concerns about drug dealing and airplane hijacking, the United States Government systematically took more power to search us when we travel by air. The trend continued at airports, but driving back from the Canadian border always felt quite different. But in the past sixteen years, under Presidents Bush, Obama, and now Trump, our Government has turned all foreign border stops, including by car from Canada, into a Wild West of non-existent civil liberties. How bad is it? Pretty bad.

I represented a Canadian woman whose breasts were fondled by female border guards, The guards didn’t like her attitude when they stopped her for questioning while driving across the US-Canada border. She was, by the way, a white woman with an Italian last name who was not Muslim. (Lest you think, this would never happen to you) At the trial, Homeland Security officials testified they routinely feel inside the bra and underpants waistband without a search warrant to search for contraband. The case settled after trial. But the agents keep their invasive search policy. They only get a warrant before they X-ray you to see if you have swallowed drugs.

Increasingly, in an effort to keep us safe, we have empowered agents the authority to invade our privacy with virtually no oversight outside the Department of Homeland Security. The result is a culture among agents that tolerates intimidating searches and hostile questioning of the sort that I remember marking the behavior of Communist East European border guards in the 1970s. Anyone who traveled to Communist Eastern Europe during the Cold War knew as soon as they arrived why we were the good guys, and they were the bad guys. The uniformed agents that greeted you in East Berlin or at the Czech border were scary and hostile, and the people there were afraid of their own governments.

Recently, way too many Americans are becoming afraid of our own Government agents. We all know of the “others” that are afraid: illegal Mexican immigrants or Muslim immigrants. But I am seeing more cases where all sorts of US citizens are having their phones and computers taken and searched without any reason. I represented a white male senior manager US citizen at a major US company whose phone was downloaded and agents called his contacts. The agents had no warrant. He had committed no crime. The agents found him suspicious. He ended up getting fired from his job because the company felt they couldn’t keep him managing at a factory in Ontario given their investigation.

The New York Times article, “Privacy Complaints Mount Over Phone Searchs at U.S. Border Since 2011”, describes how widespread the practice of searching our phones and computers without probable cause is becoming.

Until the courts or Congress state otherwise, right now, the Government takes the position they can seize and search your phone or computer at the border without any reason.

This issue is not partisan. And we all want Homeland Security to catch dangerous people. But not any cost. We need a public conversation about our rights when we return to our own country from traveling abroad, and how we treat our guests upon arrival. As with so many other rights, if you are too casual about how our Government treats people who feel like the “other”, it is inevitable the Government will use those powers against you.

Source:  New York Times article, Privacy Complaints Mount Over Phone Searchs at U.S. Border Since 2011, by Charlie Savage & Ron Nixon, 12/22/17