Jul 22

WSJ Reporter’s “Shocking” Discovery: DHS Can Confiscate Any Device Along The Border Without Suspicion:

A WSJ reporter who covers the Middle East had a very “troubling” close-encounter with the US police superstate.

Maria Abi-Habib was detained by federal agents at Los Angeles International Airport, who demanded to confiscate her two cell phones, and was shocked to learn that border agents have the authority to do that. The reporter has both U.S. and Lebanese citizenship and was traveling on an American passport. She was flying into Los Angeles from Beirut last Thursday when she taken out of line at immigration.

“They grilled me for an hour,” she wrote. “I answered jovially, because I’ve had enough high-level security experiences to know that being annoyed or hostile will work against you.” Abi-Habib said that the agents then asked for her cellphones in order to “collect information.”

“That is where I drew the line,” Abi-Habib wrote. “I told her I had First Amendment rights as a journalist she couldn’t violate and I was protected under.”

According to Abi-Habib, the agent then presented a DHS document which explained that the government has the right to confiscate phones within 100 miles from U.S. borders: the document “basically says the US government has the right to seize my phones and my rights as a US citizen (or citizen of the world) go out the window.”

She posted a photo of this tearsheet on the Facebook post.  The same document is also available on the website of the US Customs and Border Patrol and can be found at the following link. The key section is the following:

You’re receiving this sheet because your electronic device(s) has been detained for further examination, which may include copying. You will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination.

The CBP officer who approved the detention will speak with you and explain the process, and provide his or her name and contact telephone number if you have any concerns. Some airport locations have dedicated Passenger Service Managers who are available in addition to the onsite supervisor to address any concerns.

More importantly, one can not refuse to hand over any demanded electronic device to the customs agent, as “collection of this information is mandatory at the time that CBP or ICE seeks to copy information from the electronic device. Failure to provide information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure.”

Inspection of electronic devices

Here, Abi-Habib did something the DHS did not expect: “I called their bluff” she says, as she refused to hand over her two cell phones.   

“You’ll have to call The Wall Street Journal’s lawyers, as those phones are the property of WSJ,” she said.

This led to the agent accusing her of “hindering the investigation.” The agent left to speak with her supervisor, returning 30 minutes later to tell Abi-Habib that she was free to go. “I have no idea why they wanted my phones,” she wrote. “It could have been a way for them to download my contacts. Or maybe they expect me of terrorism or sympathizing with terrorists.”

“Why I was eventually spared, we do not know and we are writing a letter contesting DHS’ treatment of me,” Abi-Habib wrote. “I assume they avoided seizing my phones forcefully because they knew we would make a stink about it and have a big name behind us — WSJ.”

According to CNN, DHS later acknowledged the incident occurred, confirming the story, and explaining Abi-Habib’s shock at the realization of being singled-out by the police state.


None of this is actually new. 

The policy was set in 2013 when DHS reviewed its own powers and concluded that its agents were clear to search at will.  “Imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” it wrote.

In fact we wrote about precisely this over three years ago, in February 2013, in “Goodbye Fourth Amendment: Homeland Security Affirms “Suspicionless” Confiscation Of Devices Along Border.” As a reminder, this is what we said:

Slowly but surely the administration is making sure that both the US constitution, and its various amendments, become a thing of the past. In the name of national security, of course. And while until now it was the First and Second amendments that were the target of the administration’s ongoing efforts to eavesdrop on anyone, all the time, in order to decide who may be a domestic terrorist and thus fit for ‘droning’, coupled with an aggressive push to disarm and curtail the propagation of weapons in what some perceive is nothing more than an attempt to take away a population’s one recourse to defend itself against a tyrannical government, the time may be coming to say goodbye to the Fourth amendment – the right to be free from unreasonable searches and seizures – next. But only in close proximity to the border at first. As it turns out the Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

Who was at fault for this?  As it turns out, first Bush and then Obama.

The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.

What does this decision mean in principle: According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.

Finally, why 100 miles?

Because as the attached map shows, the “borders” in question include maritime zones as well, and with the bulk of the US population concentrated along the coasts, the “constitution free” zone of the US includes virtually everyone living on the two seaboards: some 66% of the US population.

constitution free zone USA

We even laid out a case study of what happened to a perfectly innocent man:

A lawsuit the ACLU brought on the issue concerns a New York man whose laptop was seized along the Canadian border in 2010 and returned 11 days later after his attorney complained. At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.

Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained that he was earning a doctoral degree at a Canadian university on the topic of the modern history of Shiites in Lebanon. He was handcuffed and then jailed for three hours while the authorities looked through his computer while numerous agents questioned him, according to the suit, which is pending in New York federal court.

As we concluded then: “First they came for your iPad, and nobody said anything…”

Over three year later, they came for a very stunned Maria Abi-Habib’s cell phones and she said something, because it is one thing to read about it one some website, it is something totally different to go through it in person.

* * *

Amusingly, the confusion stretched to the very top.

The Wall Street Journal’s editor in chief, Gerard Baker, told CNN that the paper is “disturbed by the serious incident involving Abi-Habib.”

“We have been working to learn more about these events, but the notion that Customs and Border Protection agents would stop and question one of our journalists in connection with her reporting and seek to search her cell phones is unacceptable,” Baker said in a statement to CNNMoney.

Actually, Gerard, it’s the law and has been for years. Even this little “fringe tinfoil blog” reported on it while you were focusing on far greater matters. Maybe now that you are familiar with just what the US police state is capable of doing, you will write an article decrying it?

We doubt it.

* * *

But the absolute in irony came, when CNN quoted Gregory T. Nojeim, a lawyer at the Center for Democracy & Technology, who “is concerned” about these extraordinary powers.  “They should have to have reasonable suspicion when they do this,” he said.

They should yes, but they don’t. And if you “lawyers” were actually doing your job and protecting civil liberties, this would not have happened. Of course, we realize that is asking far too much.

* * *

Her full Facebook post is reposted below in its entirety. Highlights ours.

Dear friends,

I wanted to share a troubling experience I had with the Department of Homeland Security (DHS), in the hopes it may help you protect your private information. I was born a US citizen and was traveling on my American passport.

I landed at LA airport last Thursday to attend a wedding. I was standing in line for immigration when a DHS officer said “oh, there you are.” I was puzzled. “I was trying to recognize you from your picture. I’m here to help you get through the line.”

I asked a few questions, and she said that DHS had decided to pick me up when my name came in on the flight manifest (this is not uncommon, for countries to share passenger names). She didn’t say whether the flight manifest was sent from Beirut, where I started my trip, or Frankfurt, where I hopped onto my connecting flight to LAX. The DHS agent went on to say she was there to help me navigate immigration because I am a journalist with The Wall Street Journal and have traveled to many dangerous places that are on the US’ radar for terrorism. She independently knew who I worked for and my Twitter account, countries I’d reported from (like Iraq) and even recent articles I’d written — I told her nothing about myself.

This didn’t seem out of the ordinary at first — I’ve had US Immigration officials tell me my name is on a special list that allows me to circumvent the questioning most would receive if they had a similar travel profile or internet print (talking to members of known terrorist groups). I travel to the US about twice a year and have always remarked on how smooth my experiences at Customs/Immigration are.

But after pushing me to the front of a very long line at immigration, she then escorted me to the luggage belt, where I collected my suitcase, and then she took me to a special section of LAX airport. Another customs agent joined her at that point and they grilled me for an hour – asking me about the years I lived in the US, when I moved to Beirut and why, who lives at my in-laws’ house in LA and numbers for the groom and bride whose wedding I was attending. I answered jovially, because I’ve had enough high-level security experiences to know that being annoyed or hostile will work against you.

But then she asked me for my two cellphones. I asked her what she wanted from them.

“We want to collect information” she said, refusing to specify what kind.

And that is where I drew the line — I told her I had First Amendment rights as a journalist she couldn’t violate and I was protected under. I explained I had to protect my sources of information.

“Did you just admit you collect information for foreign governments?” she asked, her tone turning hostile.

“No, that’s exactly not what I just said,” I replied, explaining again why I would not hand over my phones.

She handed me a DHS document, a photo of which I’ve attached. It basically says the US government has the right to seize my phones and my rights as a US citizen (or citizen of the world) go out the window. This law applies at any point of entry into the US, whether naval, air or land and extends for 100 miles into the US from the border or formal points of entry. So, all of NY city for instance. If they forgot to ask you at JFK airport for your phones, but you’re having a drink in Manhattan the next day, you technically fall under this authority. And because they are acting under the pretense to protect the US from terrorism, you have to give it up.

So I called their bluff.

“You’ll have to call The Wall Street Journal’s lawyers, as those phones are the property of WSJ,” I told her, calmly.

She accused me of hindering the investigation – a dangerous accusation as at that point, they can use force. I put my hands up and said I’d done nothing but be cooperative, but when it comes to my phones, she would have to call WSJ’s lawyers.

She said she had to speak to her supervisor about my lack of cooperation and would return. I was left with the second DHS officer who’d been there since we left the baggage claim area.

The female officer returned 30 minutes later and said I was free to go. I have no idea why they wanted my phones — it could have been a way for them to download my contacts. Or maybe they expect me of terrorism or sympathizing with terrorists — although my profile wouldn’t fit, considering I am named Maria Teresa, and for a variety of other reasons including my small child.

I’ve since done some research and spoken to an encryption expert. This is the information I’ve gleaned which I hope may help those reading:

1) My rights as a journalist or US citizen do not apply at the border, as explained above, since legislation was quietly passed in 2013 giving DHS very broad powers (I researched this since the incident). This legislation also circumvents the Fourth Amendment that protects Americans’ privacy and prevents searches and seizures without a proper warrant.

2) Always use encryption, but even this cannot keep you 100% safe. If you are contacting someone about a sensitive matter, use an application like Signal. But if DHS seizes your phone, they can see you’ve been speaking to that person, although if you erase your chats, they won’t see what you spoke about.

3) Never download anything or even open a link from a friend or source that looks suspicious. This may be malware, meaning that they have downloaded software on your phone that will be able to circumvent the powers of encryption. Don’t leave your phone unattended for the same reasons – they can just open it up and download malware.

4) Travel “naked” as one encryption expert told me. If any government wants your information, they will get it no matter what. Remember the San Bernardino shooter? Apple refused to comply, so the US got the information by paying an Israeli company $1 million to unlock the shooter’s phone. So if you have something extra sensitive on your device – phone or laptop – do not travel with it and instead use your sim card in a clean phone. And for sensitive numbers, write them on a piece of paper you can somehow secure and then restore the factory settings on your phone – which seems to be the only way of wiping it clean 100%.

Sorry for the long post. I hope this helps.

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