Tag: CBP

CBP Drones: Inefficient and a Threat to Privacy

My colleague David Bier and I have written a policy brief on the unmanned aerial vehicles (UAVs) flown by Customs and Border Protection (CBP). We argue that CBP’s fleet of Predator B drones are a threat to the privacy of Americans living along the border and an inefficient tool for locating illegal border crossers and illegal drugs. In addition, state and local use of these UAVs mean that American living in the interior are also at risk of being the target of warrantless surveillance.

Predator B drones may have a reputation as highly efficient military tools, but on the homefront they’ve proven inefficient at contributing to border security. For instance, in the last few years CBP’s predator drones have contributed to less than a percent of illegal border crosser apprehensions at a cost of $32,000 per arrest. When it comes to marijuana seizures, the drone fare little better, being responsible for about 3 percent of marijuana seizures in the same time period.

These inefficient UAVs pose a threat to Americans living along the border and in the interior. State and local law enforcement can request CBP drones for assistance. In fact, the first domestic law enforcement use of UAV to assist an arrest was in 2011, when police in North Dakota requested the use of a CBP Predator. Thanks to three Supreme Court cases from the 1980s warrantless aerial surveillance does not run afoul of the 4th Amendment. While some states have passed warrant requirements for UAVs, it’s not clear whether CBP adheres to state warrant requirements when acting on the behest of state and local law enforcement.

Recapping Immigration Week on the Cato Daily Podcast

All this week, the Cato Daily Podcast (subscribe!) has tackled the myths, errors, and underappreciated elements of immigration policy. President Donald Trump has made a massive reduction in legal immigration a centerpiece of his second year in office, and the sales pitch he’s made on behalf of that plan hinges on a number of false or misleading claims about the costs and benefits of immigration. In case you missed them, here are my discussions with Alex Nowrasteh, David Bier, and Matthew Feeney:

And, not to be left out, Jim Harper discussed his recent paper on new national ID systems including E-Verify, the deeply flawed employment verification system aimed at keeping undocumented immigrants from working in the United States.

Here’s more of Cato’s work on immigration.

Privacy Still at Risk Despite New CBP Search Rules

International travelers, citizens and foreigners alike, enjoy reduced privacy protections at ports of entry. Thanks to the “border exception” to the Fourth Amendment, Customs and Border Protection (CBP) officers do not need reasonable suspicion or probable cause to search electronic devices at airports. This regrettable authority made headlines last year after CBP officers searched phones belonging to innocent American citizens. CBP has updated its electronic device search policy via a new directive. While the directive does include a welcome clarification, it states that CBP can search anyone’s electronic devices without probable cause or reasonable suspicion.

The CBP’s new directive begins by outlining the unfortunate state of the Fourth Amendment at the border and ports of entry. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches and seizures.”

Yet, as Justice Rehnquist wrote in his majority opinion in United States v. Ramsey (1977):

[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.

In 1985, Rehnquist reiterated this point, writing in his United States v. Montoya de Hernandez (1985) majority opinion:

Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.

CBP conducted numerous warrantless searches of electronic devices last year. Perhaps most notable was the January 2017 case involving Sidd Bikkannavar, an American citizen, member of the CBP Global Entry program, and NASA Jet Propulsion Laboratory engineer. After arriving from Chile (not exactly a hotbed of international terrorism), a CBP officer at Houston’s George Bush Intercontinental Airport asked Bikkannavar to unlock his smartphone, which happened to be NASA property. Despite Bikkannavar pointing out that the phone contained sensitive information, the officer persisted, and Bikkannavar eventually gave up the phone’s passcode.

A month after CBP needlessly interrupted Bikkannavar’s travel, agency officials reportedly stopped another American citizen, Haisam Elsharkawi, from leaving Los Angeles on his way to Saudi Arabia. According to Elsharkawi, CBP officers put him in handcuffs and pressured him into unlocking his phone. The officers released Elsharkawi without charge hours after his plane had left.

Searches of electronic devices at the border are on the rise. According to CBP’s own figures, the number of international travelers processed with electronic device searches in the 2017 fiscal year increased almost 60 percent compared to the 2016 fiscal year. While the number of travelers subjected to these searches represents a small fraction of total international travelers, it’s clear that these warrantless searches have targeted innocent Americans and are unlikely to stop. At a time when the smartphone is an increasingly integral part of modern life, containing most of our intimate and private details, this authority is of acute concern.

CBP Dodges Sen. Wyden’s Electronic Searches Question

Sen. Ron Wyden (D-OR) is concerned about Customs and Border Protection’s (CBP) searches of travelers’ electronic devices at the border and ports of entry. CBP’s responses to Wyden’s queries about such searches are illuminating but far from reassuring.

In February, Sen. Wyden sent a letter to Department of Homeland Security (DHS) Secretary John Kelly, asking a range of questions about searches of electronic devices. DHS responded to this letter, but the agency’s response didn’t satisfy Sen. Wyden, who posed some followup questions to CBP acting commissioner, Kevin McAleenan.

McAleenan’s answers to Sen. Wyden’s questions are revealing, in part because of what they don’t discuss.

The answers begin by noting that the Supreme Court recognizes the CBP’s “broad scope” of authority to conduct border searches.

Drones Are a Must For Trump’s Nativist Police State

Yesterday my colleague Alex Nowrasteh wrote an extensive list of reasons why Donald Trump, the presumptive Republican Party presidential nominee, is the nativist dream candidate. The list leaves little doubt that if Trump makes it to the White House he will seek to violate the Constitution, create a police state, put citizens’ privacy at risk, and build a border wall (despite its estimated $25 billion price tag) all in the name of reducing legal and illegal immigration to the United States.

Trump’s immigration plan ought to worry civil libertarians because, as Alex points out, he supports mandatory E-Verify, the ineffective employment eligibility verification program that puts privacy at risk. Trump’s disregard for effective policy and privacy rights can be seen not only in his views on E-Verify but also his support for 24/7 border drones.

Last month Trump told Syracuse.com that he would order the 24/7 surveillance of the U.S. borders, adding, “I want surveillance for our borders, and the drone has great capabilities for surveillance.”

What Trump might not know is that drones on the U.S. border don’t have a great track record. At the end of 2014 the Department of Homeland Security’s Inspector General released an audit of the Customs and Border Protection’s Unmanned Aircraft System Program. The program includes MQ -9 Predator B drones (also called “Reapers”), perhaps best known for its combat missions abroad, as well as the Guardian, the Predator B’s maritime variant. The program’s audit was unambiguous:

The program has also not achieved the expected results. Specifically, the unmanned aircraft are not meeting flight hour goals. Although CBP anticipated increased apprehensions of illegal border crossers, a reduction in border surveillance costs, and improvement in the U.S. Border Patrol’s efficiency, we found little or no evidence that CBP met those program expectations.

Unsurprisingly, cartels at the southern border are taking part in an arms race with CBP, using jamming devices on patrol drones. Almost a year after the inspector general’s audit Timothy Bennett, a science-and-technology program manager at the Department of Homeland Security, explained how the cartels hinder CBP operations:

DHS was unable to say just how often smugglers tried to jam or spoof border-watching UAVs. But Bennett said the attacks are hindering law enforcement abilities to map drug routes. “You’re out there looking, trying to find out this path [they’re] going through with drugs, and we can’t get good coordinate systems on it because we’re getting spoofed. That screws up the whole thing. We got to fix that problem,” he said.

The ineffectiveness of drones on the border is not the only concern. CBP drones also pose privacy concerns. Predator B drones carrying out combat missions abroad have been outfitted with Gorgon Stare, a wide-area surveillance technology that allows users to track objects within an area at least 10 square kilometers in size. Almost two years ago it was reported that once incorporated with Autonomous Real-Time Ground Ubiquitous Surveillance Imaging System (ARGUS-IS), another wide-area surveillance tool, Gorgon Stare can monitor 100 square kilometers. A video outlining ARGUS-IS’ capabilities is below.

Border Patrol Slowrolls Body Camera Deployment

Today, Customs and Border Protection Commissioner Gil Kerlikowske announced that the agency would spend three additional months studying whether body-worn cameras (BWCs) are suitable for deployment by CBP. The agency has been studying BWC deployment since 2014, and the effort comes after years of intense pressure by non-governmental organizations over a pattern of lethal use-of-force incidents since 2010.

The draft feasibility report released by CBP appears to give federal employee unions virtual veto power over the deployment of the cameras, stating “Successful union negotiations are required prior to implementation.”

The report also makes clear that the cameras are being sold to CBP agents as a shield against public complaints, and less as an officer accountability tool:

Officers and agents must be willing to wear and operate their BWCs, without fear of reprisal. Officers and agents must have the confidence of knowing that the primary purpose of BWCs is to corroborate their sworn testimony, not create frivolous punishments. They also must be assured their privacy will be protected from unnecessary review and release.

In addition, the report outlines a number of factors that “may adversely affect CBP officers/agents, operations, and mission (sic).” However, upon closer examination many of these factors are easily addressed and need not impede the deployment of body cameras.

For instance, the working group writes:

The BWCs increase the cognitive load experienced by officer/agents, causing them to redirect their attention towards the operation of the camera versus allowing them to focus on the encounter. BWCs may also cause an officer/agent to second-guess a course of action.

Body cameras may take some getting used to, but the fact that some officers find operating the cameras difficult or distracting should not prevent the CBP from deploying body cameras. After all, dash cameras also presumably increased officers’ “cognitive load” and caused some officers to second-guess their actions. And yet, dash cameras as now considered perfectly normal law enforcement tools. During a press call on November 12, CBP officials conceded that it was a mistake on their part not to have conducted a dash camera review as part of the initial BWC evaluation process, an oversight that will allegedly be corrected during the upcoming follow on evaluation process.

Border Patrol Out Of Control

Today, the ACLU’s Border Litigation Project released a damning report on the Department of Homeland Security’s Customs and Border Protection “interior operations” that should serve as a wake up call for Washington policy makers.

Titled “Record of Abuse: Lawlessness and Impunity in Border Patrol’s Interior Enforcement Operations”, the 31 page report is supplemented by hundreds of pages of documents obtained through an ongoing Freedom of Information Act lawsuit. The ACLU Arizona chapter’s summary of the report noted the following: 

Border Patrol’s records contain recurring examples of agents terrorizing motorists far into the interior of the country; detaining and searching innocent travelers after false alerts by service canines; threatening motorists with assault rifles and other weapons; destroying personal property; and interfering with attempts to video record agents. These abuse records substantially outnumber the annual complaint totals DHS oversight agencies disclosed to Congress.

Border Patrol does not record stops of motorists that do not result in arrest, or false canine alerts that lead to searches of innocent suspects.  Substantive investigations into civil rights violations are rare and almost never result in disciplinary consequences. Despite numerous reports of abuse and corruption, the records contain only one example of disciplinary action of any kind.

Border Patrol’s own data undermines the agency’s public claims that checkpoints are efficient and effective: in 2013, Tucson Sector checkpoint apprehensions accounted for only 0.67 percent of the sector’s total apprehensions. The same year, Yuma Sector checkpoint arrests of U.S. citizens exceeded those of non-citizens by a factor of nearly eight (and in 2011, by a factor of eleven).