Passengers from SFO to JFK were told they couldn't disembark without showing CBP their 'documents.'
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One passenger tweeted, "We were told we couldn't disembark without showing our 'documents.'" A Delta flight attendant announced to passengers, "You'll need to show your papers to agents waiting outside the door."
After a Rolling Stone reporter pointed out that the agency did not have domestic law enforcement authority, a CBP spokesman said that the action was "nothing new" and that there was "no new policy." When the reporter persisted, the spokesman read CBP's authorities from the US Code, saying, "All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer ... CBP has the authority to collect passenger name record information on all travelers entering or leaving the United States."
Apparently oblivious to the fact that this was a domestic flight and was outside of CBP's statutory purview, the spokesman said, "That's all that I have at this time," and ended the conversation.
Once the story hit the press, another CBP spokesman told Rolling Stone that the identification check was nothing more than "consensual assistance from passengers aboard the flight" and that "CBP did not compel" anybody to show ID.
Whether that's true or not, there's a bigger issue here. Most Americans simply don't know what their rights are, either on domestic flights or at the border.
First, according to the American Civil Liberties Union, you can be stopped at the border and questioned, whether you're an American citizen or not. You can also be sent to secondary inspection. But if you are an American, you have the right to be represented by counsel prior to any questioning. A CBP officer recently stopped me when I was reentering the country at Dulles Airport in Virginia. I am still on federal probation after blowing the whistle on the CIA's torture program, and that probation popped up on the CBP officer's computer. He asked if I was on probation. I said that I was. He then asked me what my crime was. I responded factually that I had violated the Intelligence Identities Protection Act of 1982. "I'm not familiar with that," he said. "What were the circumstances of your case?" I said that I was represented by counsel and that I never, ever discuss my case with any federal employee. He had to let me in. He couldn't prevent me from entering my own country, after all. He did let me in, but only after I had sat in the CBP office for two hours.
Second, the ACLU says you can be searched at the border. The Fourth Amendment notwithstanding, CBP does not need probable cause or reasonable suspicion to search you. Again, though, you can request to speak to your attorney if you're an American citizen.
Third, CBP can ask to search your laptop, phone, or other electronic device. Last month, Sidd Bikkannavar, a US citizen and NASA engineer, was stopped at the Houston Airport on his way back from a vacation in Chile. He was asked for his phone and his PIN number to access it. This was a government-issued phone, by the way. He complied. And, according to the ACLU, he had to. The federal courts have ruled that phone pass-codes are protected by the 5th Amendment, but fingerprints are not.
The issue of whether CBP can go further and search your social media or the data on your phone is less settled legally. A federal appellate court ruled in 2013 that if border agents want to conduct a "forensic search" they have to suspect you of criminal wrongdoing. But that hasn't stopped CBP agents from asking for access.
Finally, what happens if you refuse to turn over your information? If you're an American citizen, CBP agents can certainly inconvenience you. They can make you sit in a little room, potentially for hours, while they figure out what to do next. But like I said, they can't stop you from entering your own country.
Worse, though, CBP has the right to keep your phone, laptop, or other devices for as long as it needs, even months, "pending an investigation." In that case, you'll likely need an attorney. But a better idea is to either not take devices with you overseas or, if that's not possible, back everything up, wipe your devices of all data, and take those. Fighting Big Brother is hard work, and it's going to be a million little battles.