Dearborn, Michigan – Traveling is a regular occurrence for Michigan attorney Amir Makled. As recently as December, he went overseas and returned home to the United States without any issues.
“I’ve left the country at least 20 times. I’ve visited every continent. I go to Lebanon every year”, he said.
However, the Detroit Metro Airport’s return this month was completely different.
When they reached a customs checkpoint, he and his family had just returned from a spring break trip to the Dominican Republic.
“The agent looked over at me and then looked to another agent and asked him if the TTRT agents are here. I had no idea what this meant.
He looked up the acronym on Google. It stands for Tactical Terrorist Response Teams.
When I travel, even if I’m driving in from Canada, I feel some sort of anxiety that I’ll be randomly selected to be stopped or profiled, he explained.
I sat there and said, “OK, I’m going to be profiled here.”
Sure enough, Makled and his family were asked to go to another room.
Makled was aware that he couldn’t be denied entry because he was a citizen of the US and was born in Detroit, Michigan. He urged his wife and children to pass the checkpoint without him.
“I knew my rights at the border in that regard. And I was also aware of how frequently border searches are conducted, he said. For the first time in my life, I was stopped.
But what happened next would put the lawyer in a precarious position.
Border control officers have a lot of legal authority to search a person’s belongings. The goal is to stop people from entering the country with security threats, contraband, or environmental threats.
Those searches, however, extend to the contents of electronic devices. And that raises questions about what should be protected from the government’s prying eyes and what needs to be regulated.
A threat to the attorney-client privilege
Makled knew the border agents could take his phone. He was faced with a complex ethical dilemma, though, as an attorney. His phone contained privileged client information.
In the US, a basic tenet of the legal system is that a client can have frank discussions with their lawyer, with the safety of knowing anything they say will be kept confidential.
Makled’s phone contained a sizable portion of his writing. He claimed he couldn’t give the device to the border officers when asked to do so.
“All my emails, my text messages, my files, the cloud-based software I use for my office”, he said, “it’s all through my phone”.
Makled, a lawyer for people he described as particularly vulnerable, represents those who are in need of civil rights and criminal defense.
A protester was detained last year at a University of Michigan pro-Palestine encampment, according to one of his clients. She was later charged with resisting and obstructing police, a felony that carries up to a two-year prison sentence.
Makled thinks that because the border patrol officers had this information in mind, he was targeted. He claimed that one of the agents even called him a “famous lawyer,” which he thought was a statement made in response to the protester’s case.
In the end, he gave the agents written permission to see his contacts but no other permissions. He was permitted to leave with his phone after about 90 minutes at the airport.
A growing trend
Border control officers have the authority to search any person entering the country, their luggage, or other items in their possession at the time of the inspection since Title 19 of the US code began almost a century ago.
However, today’s digital devices contain far more information than is necessary for a trip.
The most recent fiscal year saw 47, 047 electronic devices searched by border control officers, the vast majority of which belonged to non-US citizens.
That is an almost 13% increase over the previous fiscal year, which US Customs and Border Protection recorded with 41, 767 electronic searches.
The process has long been hampered by the uncertainty of whether these searches can be used for political gain or to retaliate.
In November 2018, for instance, an employee of the tech company Apple, Andreas Gal, said he was detained while returning to San Francisco from an international trip.
Gal was flagged for the TTRT, just like Makled. Customs officers pushed to search his electronic devices, just like the lawyer. He refused. Gal later stated that he thought his online political views had caused him to be targeted.
However, experts have increased their concern about such searches in recent weeks.
Since taking office for a second term in January, President Donald Trump has sought to deport noncitizens he sees as critical of the US or its ally Israel. Among the allegedly used evidence to expel people from the country was material from electronic devices.
Rasha Alawieh, a kidney transplant specialist, was denied re-entry after returning from Lebanon to the US. She held a valid H-1B visa that allowed her to work in the US.
According to reports, the Trump administration cited photos recovered from her phone, including those of Hezbollah leader Hassan Nasrallah, as justification for her expulsion.
Following Alawieh’s expulsion, the Department of Homeland Security stated in a statement that “supporting terrorists who kill Americans is grounds for visa issuance to be denied.”
Also in March, the French government said one of its citizens, a scientist, was prevented from entering the US on account of the political messages on his phone.
However, that accusation has been refuted by the Trump administration.
Homeland Security spokeswoman Tricia McLaughlin wrote on social media that the French researcher in question had access to sensitive information from Los Alamos National Laboratory, in violation of a non-disclosure agreement.
“Any claim that his removal was based on political beliefs is blatantly false”.
a lack of legal consensus
There are two types of screenings a device may undergo while in border control custody.
When an officer uses a hand-held electronic device to conduct a “light” search, it occurs. The device is connected to external equipment during an advanced search, which legally calls for “reasonable suspicion” of a crime. The device may not be returned to its owner for weeks or months.
Although US citizens are not required to unlock their electronics in order to re-enter their country, border agents do not require a warrant to search an electronic device.
However, refusing to provide these details may result in a ban on entry for travelers who are not US citizens or permanent residents.
But experts say these practices raise serious concerns about the Fourth Amendment of the US Constitution, which grants protection from unreasonable searches and seizures by the government.
The American Civil Liberties Union’s Speech, Privacy and Technology Project’s deputy director, Esha Bhandari, shared examples of the government bridging Fourth Amendment protections with these border checks.
According to Bhandari, “the government is increasingly viewed this as a constitutional flaw.”
“They have someone under investigation, and rather than waiting on whether they can establish probable cause, which requires a judge to give a warrant, they wait until someone crosses the international border and treat that as a convenient opportunity to search their devices”.
However, it is up for debate how far that loophole can extend.
The US courts have yet to come to an agreement regarding the extent and limits of searches of digital devices, according to Saira Hussain, a senior staff attorney at the Electronic Frontier Foundation.
“At this moment, whether you fly into San Francisco vs Boston vs Atlanta, there are three different rulings on exactly which part of your phone can be searched, for what purposes]or] what level of suspicion is needed”, Hussain said. There hasn’t been uniformity, according to the statement from several lower courts regarding the issue.
Makled, for his part, claimed that he has never been turned down for traveling or supporting controversial causes.
“I feel that this is an intimidation tactic. He defended the protester who was detained at the University of Michigan, saying that it’s an attempt to dissuade me from taking on these kinds of cases.
Source: Aljazeera
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