DHS, CBP Admit They Have No Legal Authority To Access Americans’ Social Media Accounts

Saturday, July 15, 2017
By Paul Martin

by Tim Cushing
TechDirt.com
Fri, Jul 14th 2017

Since at least 2009, the DHS has asserted a legal right to copy/search the contents of anyone’s electronic devices at the border. Its privacy assessment said no one has much privacy, at least not near US borders. Building on years of judicial national security deference, the DHS has recently expanded its searches of electronic devices, eliminating most of its adherence to the Fourth Amendment in the process. If your devices wander into the country’s Constitution-free zones, you can expect to suffer diminished expectations of privacy.

Noting that border searches of electronic devices were increasing exponentially (more searches in February 2017 alone than in all of 2015), Senator Ron Wyden did two things: introduced a bill creating a warrant requirement for border electronic device searches and asked the CBP (Customs and Border Protection) about its new demands for social media/email account passwords.
The DHS has responded [PDF] to Wyden’s questions, and the answers are a bit surprising.

U.S. border officers aren’t allowed to look at any data stored only in the “cloud” — including social media data — when they search U.S. travelers’ phones, Customs and Border Protection acknowledged in a letter obtained Wednesday by NBC News.

The letter (PDF), sent in response to inquiries by Sen. Ron Wyden, D-Ore., and verified by Wyden’s office, not only states that CBP doesn’t search data stored only with remote cloud services, but also — apparently for the first time — declares that it doesn’t have that authority in the first place.

This admission about a lack of legal authority contradicts the assertions made in its 2009 Privacy Impact Assessment, which placed CBP agent hunches above anything resembling reasonable suspicion or probable cause. But the answer aren’t quite as clear-cut as it might appear from the NBC New summation.

With or without legal authority, the CBP is still performing searches of thousands of devices. Returning US citizens aren’t exempted from these searches. They are often free to go, even if their devices might need to be left behind so the CBP can search/copy the device’s contents. This may be done without reasonable suspicion because, as the letter puts it, any device might hold evidence of criminal activity (terrorism, smuggling, and child porn are specifically named).

What the CBP cannot do — at least according to this letter — is retrieve information and data not stored on the phone itself. But this would only prevent CBP officers from accessing cloud-based storage. Much of the information contained in email and social media accounts is not stored locally, but there’s no practical way to separate local/cloud data when officers have access to the entire device. The letter appears to indicate officers need to restrict their searches to SMS messages, call logs, and photos/videos stored on the device.

The Rest…HERE

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