Telecom

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.

Why ‘Net Neutrality’ Is a Problem

Yesterday, Federal Communications Commission Chairman Ajit Pai announced his intention to reverse Obama administration “net neutrality” rules governing the internet that were put in place in 2015. Some commentators are criticizing the announcement as a give-away to large telecom companies and an attack on consumers. But the Obama rules create some serious problems for consumers—problems that Pai says he wants to correct.

Under the Obama rules, internet service providers (ISPs) are subject to “rate-of-return” regulations, which the federal government previously applied to AT&T’s long-distance telephone service back when it was a monopoly more than 50 years ago. Ostensibly, rate-of-return regulation gives government officials the power to review and approve or reject ISP rates. In reality it basically guarantees ISPs government-enforced market protection and profitability, in exchange for regulators ensuring that ISPs won’t be too profitable.

As explained in this 2014 post, rate-of-return regulation involves more than just telecom. It is an attempt to settle fights between “producers” and “shippers”—whether those are farms, mines, and factories on one side and railroads and shipping lines on the other, or Netflix and Hulu on one side and ISPs on the other. In all those cases, the producers and shippers need each other to satisfy consumers, but they fight each other to capture the larger share of consumers’ payments. If shippers charge more, then farmers, factories, and Netflix must charge less in order to maintain the same level of sales.

The political resolution of the producer–shipper fights was the Interstate Commerce Act of 1887 and its rate-of-return regulations, which were initially written with railroads in mind. Similar efforts were later extended to trucking, air transportation, energy, and telecom. It took about 100 years for policymakers to accept that those efforts hurt consumers much more than it helped them, forcing on consumers too many bad providers with high prices and poor quality.

Designing an Insecure Internet

If there were any doubt that the 90s are back in style, witness the Obama administration’s attempt to reignite the Crypto Wars by seeking legislation that would force Internet services to redesign their networks and products to provide a centralized mechanism for decrypting user communications. It cannot be stressed enough what a radical—and terrible—idea this is.  I’ll be writing on this at greater length this week, but a few quick points.

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it.

Three Keys to Surveillance Success: Location, Location, Location

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

Who Reads the Readers?

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order.

Understanding the Consequences of Internet Regulation

In an effort to achieve “network neutrality” online, the FCC is starting to write new regulations for Internet providers.  Reuters reports:

U.S. communications regulators voted unanimously Thursday to support an open Internet rule that would prevent telecom network operators from barring or blocking content based on the revenue it generates.

Subscribe to RSS - Telecom