DHS Being Sued Over Electronic Equipment Searches

Earlier this month the Montreal Gazette wrote about Pascal Abidor, a man with France and US citizenship who was the subject of secondary-inspection by US border agents which resulted in:

- Losing his laptop for 11 days
- Being frisked, handcuffed, and placed in a cell
- Fingerprinted and photographed
- Released…3 hours later

Getting the ACLU involved seemed to be what helped get his laptop back sooner than later, and (from the article)…

He is now one of the plaintiffs, along with the National Association of Defence Lawyers and the National Press Photographers Association, suing the U.S. Department of Homeland Security to have policies regarding electronic equipment changed.

Unfortunately for Pascal, he was the perfect storm for determining who should be flagged for secondary inspection:

- Muslim
- Doing his Ph D in modern Shiite history
- Pictures of Hamas and Hezbollah on his laptop
- Foreign citizenship and studying in a different country, but travelling to NY to visit family

Now he’s in the system, as he realized when he flew from London to New Jersey a few months later and was detained again. I love the comment in the article:

…agents seemed to have inside information about Abidor, asking about the last time he was stopped, how he pays for travels, his girlfriend and Ph.D. and whether he was Muslim.

This shouldn’t be a surprise, as we all know that when you get sent to secondary inspection you’re flagged in the system, especially after fingerprints and other information is gathered.

Unfortunately I don’t know how successful the lawsuit is going to be. It’ll come down to the rule of law against the fear of terrorism, and unfortunately its much easier to succumb to fear. Still, for foreigners this is another example of why crossing into the US can be dangerous. If this is how they treat their own, how do you think they’ll treat those from other countries?

The Liar, the Car, and the Cell Phone – CBSA and Your Privacy

Oh poor Derrick Anderson. He went to the Minneapolis area to buy a cheap car, came back to the Canadian border and lied about how much he actually paid for it to avoid paying extra money in duty and taxes (y’know, THE LAW). (Click here to read the Winnipeg Sun article)

A CBSA officer then went into his new car, found his cell phone, and proceeded to read his text messages; one of which showed the actual price he paid. With this new info, the poor lad had to come up with $5100 on the spot to cover the tax and other fees…a call to Daddy helped out.

Now he and his father are making an issue out of this in the local media, admitting that Derrick lied but focussing on the “invasion of privacy” from the border guard rifling through his text messages.

I’m not really going to comment on the fact that this guy is a loser for trying to mask his attempt at fraud by saying it was an “error in judgement”. You want to go to the US and get cheaper products, fine. But don’t try to screw over the Canadian economy that so richly provides you with, among other things, free health care by not paying your fair share of taxes at the border. Even with the $5100 tax tag applied, I’m sure the car was still cheaper than purchasing it up here.

Instead, let’s focus on the privacy concern. Did the CBSA officer have the authority to search the cell phone? According to the CBSA spokesperson, yes:

CBSA regional spokeswoman Lisa White said the federal Customs Act’s Section 99 allows border personnel to look closely at a wide range of possessions in vehicles.

“And that also includes examination of electronic devices such as laptops, cellphones and iPods,” she said. “These searches are authorized by law.”

That’s right folks, the Canadian Border Services Agency has full authority to examine what’s on your laptop, cell phone, external hard drive, etc. How do you think they catch those guys with child porn?

Not sure why this should be a surprise since the US instituted a similar directive last year. Still, a refresher might be in order.

If you leave Canada and try to return, realize that any aspect of your trip and/or possessions can be scrutinized by our own border guards. Just because you’re Canadian doesn’t mean you just get a free pass back into the country. I gave some travel tips in the link I just posted above, but let me add a few others.

Password Protect Your Data
Set your cell phone to require a password, same with your laptop and anything else. Now, this won’t prevent a search, but at least you’ll be aware of any searches that could occur.

Don’t Communicate What You Don’t Want Seen
Anything that could be searched, like text messages, email history on your laptop or files, etc. are all searchable by border guards on both sides of the US/Canada border. You don’t want it searched, don’t bring them or delete them from your device before you hit the border.

Our personal privacy does not extend to re-entry into the country, right or wrong. It’s the game that we’re forced to play, so know the rules before you play (and be aware of the consequences if you try to cheat).

Clarification on USCIS General Inquiry Mailbox

I blogged back in February about my experience trying to get answers through the USCIS General Inquiry Mailbox set up for Canadians to ask “general immigration questions”. I talked about my frustration with the response, which was basically “Contact CBP”.

A recent article posted by Lane Powell over at Lexology.com offers some insight and clarification on what the new email address is really for. From the article:

Not all inquiries can be handled through Canada@dhs.gov. For Canadians, many immigration issues and matters are processed at the U.S.-Canada border through a separate Homeland Security agency, Customs and Border Protection (“CBP”). For example, petitions for intracompany transfers from a foreign company to a related U.S. entity, and Trade NAFTA (“TN”) applications can be processed on a while-you-wait basis at U.S ports of entry. Because CBP is a separate agency from USCIS, port of entry-related questions likely cannot be answered through Canada@dhs.gov.

So really, the email response I received was the correct one; they couldn’t answer my questions because they’re not the right department to be forwarding those questions to.

Ah the tangled web that is the multiple departments within DHS.

Arizona’s Immigration Law and Canadians

Great article over on lexology.com by Veronica K. Choy talking about the effect Arizona’s new immigration law has on Canadians.

If you’re not familiar with the law, currently if you enter the US illegally then you are an illegal alien…but that’s at the federal level. Arizona passed a law making it illegal at the state level to be an illegal alien. This means that state and local law enforcement now has the ability to stop anyone where “reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”

From Veronica’s article:

Further, the law further states that a person is presumed to NOT be illegal if he/she is able to provide: (1) a valid Arizona driver’s license, (2) a valid Arizona Non-operating identification license, (3) a valid tribal enrolment card or other form of tribal identification or any valid US federal, state or local government issued identification (but only if the issuance of that identification is based upon proof of legal presence).

Which brings us to the critical question: “What Canadian, who is visiting Arizona on a temporary basis, would have any of the above listed documentation?”

I can answer that for you Veronica: Practically none! While this law is targeted at illegal aliens crossing over from Mexico, keep in mind that Canadians are just as foreign as anyone from any other country visiting the US, and laws like these can put us at risk of scrutiny and potential bouts of quality time with local law enforcement if *something* about us is deemed suspicious.

Think you can ignore this if you never visit Arizona? Do you visit Oklahoma, Texas, Utah, Maryland, and Colorado? Because according to the article those states are considering tougher immigration laws as well.

Have a read through the article and consider Veronica’s recommendations. And if you’re heading to Arizona, try not to look suspicious.

CBP Hunting for Eggs this Easter

First off, this is *not* an April Fools post. I really wish it were, but its not.

With Easter approaching, CBP officers will be on the lookout for a particular type of contraband coming in from Canada and Mexico. Cocaine? Heroin? Marijuana? No…the contraband we’re talking about is Kinder Surprise Eggs!

For those that aren’t familiar with them, Kinder Surprise eggs are hollow chocolate eggs that contain a yellow plastic container. Inside that container is a random toy. I grew up with these things, as did children from Mexico, Europe, and South America…but not from the USA.

It turns out that there are two reasons why the treats aren’t allowed in. For one, the US FDA labels it a choking hazard. For another, according to an article by K. Jessie Austin:

Aside from children potentially choking on the toys, the real reason Kinder Eggs are banned is the Food, Drug and Cosmetic Act of 1938. This Act prohibits the embedding of non-food items completely enclosed inside food items, unless the non-edible part has a functioning value. For example a lollipop or popsicle stick is not edible but is a useful handle. This Act was originally put into place to prevent the addition of hazardous items to processed food and has never been changed.

Luckily for the American public, CBP has been keeping a watchful eye out for these potential CoD’s (Confections of Death)! From a BrownsvilleHerald.com article:

Last year, CBP officers seized more than 25,000 chocolate eggs in more than 2,000 seizures.

So be wary fellow Canadians! You don’t want to be *that* guy or gal that gets kicked out of NEXUS for accidentally bringing a contraband chocolate egg to the border.

Related Articles

CBP Warns Against Chocolate Egg Smuggling
The Brownsville Herald

Why Kinder Eggs Are Banned in the US
AssociatedContent.com

Kinder Surprises: Banned in the U.S.A.
Canada.com

Kinder Surprise
Wikipedia.com

USA – Enter At Your Own Risk (Update on the Peter Watts Incident)

I blogged back in December about Canadian author Peter Watts and his ordeal trying to come back into Canada from the US. The trial has occurred and with it details of what actually happened.

Peter was not convicted of any assault of an officer…in fact, all those allegations were debunked at trial. He was however convicted of “failing to comply with a lawful command”. What exactly was the failure? Peter describes it from his blog:

So what it came down to, ultimately, was those moments after I was repeatedly struck in the face by Beaudry (an event not in dispute, incidentally). After Beaudry had finished whaling on me in the car, and stepped outside, and ordered me out of the vehicle; after I’d complied with that, and was standing motionless beside the car, and Beaudry told me to get on the ground — I just stood there, saying “What is the problem?”, just before Beaudry maced me.

And that, said the Prosecutor in her final remarks — that, right there, was failure to comply. That was enough to convict.

The statute being used here is Section 750.81d which status, among other things:

(1) Except as provided in subsections (2), (3), and (4), an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

Interesting. So “failure to comply” is being used as a synonym for “obstructs” it seems…how scary that simply questioning a law enforcement officer can net you up to 2 years in prison and/or up to $2,000 in fines.

While the jury did find him guilty, there have been comments supposedly by jury members who have voiced their support for Peter and that they didn’t think he really had done anything wrong, but they couldn’t argue in light of the law: yes, he had “failed to comply”, and thus “obstructed”. You can read a recent post (and subsequent ones) on Peter’s blog that talk about it.

There’s a clear message that’s been sent from this whole endeavour, from CBP, DHS, and the DA’s office:

We’re not reasonable.

It’s obvious officer Beaudry crossed a line, yet we hear nothing of punishment for his zealous actions and because of Peter’s conviction he can’t bring charges up against the officer.

If the jury, after reviewing all the evidence, really didn’t think Peter was guilty of anything other than a very loosely interpreted meaning of “obstructed”, why couldn’t the prosecutor come to the same conclusion?

The fact this went to trial at all is outrageous! Really, this entire episode couldn’t have been rectified civilly without the need for formal charges and a court hearing?

Over at Scott H. Greenfield’s criminal defence blog, he wrote about the case and we get some great insight from someone in the legal system. He writes:

Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute.  That's the normal perspective.  From the guard's perspective, had Peter Watts just done what he was told to do without challenging the guard's authority to do his job, this wouldn't have escalated into a dispute.  The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment.  Order is paramount, and would be put at risk if our boys on the front line don't have our blind support.

…

The system didn't fail Peter. The system worked perfectly.  It's the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance.  Putting aside the axiom that justice is in the eye of the beholder, the system doesn't exists to serve justice.  The system exists to maintain order.  Did you think otherwise?

…

Like Cory Doctorow, I agree completely that Peter Watts' conviction is absurd and horrible.  He was convicted for acting like a normal person under abnormal circumstances.  He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds. 

And so I close re-stating the sentiment I had when I first blogged about Peter’s plight. The US is not our country, its not our law, it holds no guarantees or privilege for us. It also hires people like Officer Beaudry to police its borders, and if officers like him are over-zealous in their actions it doesn’t matter – the law is on their side, not ours. We are true foreigners when we cross that border, no longer brothers from different homelands.

USA – Enter at your own risk.

How to Kill a Border Town

With all the efforts to increase security at the US/Canada border, nobody has been more inconvenienced than border communities. These communities that have grown up seeing their southern or northern neighbours as an extension of themselves are now faced with a new reality; one that includes formality, documentation, and increased police presence.

Consider the communities of Stanstead Quebec and Derby Line Vermont. The image below shows the two border communities. The red line is the US/Canada border. The yellow lines are examples of streets that flow naturally between the two communities, as if it was all built as one village…which it probably was.

 (Click to enlarge)

Over to the right, just off the image, is the *official* border crossing location, although from the articles I’ve read there seem to be other border crossing stations throughout the town.

Over the past while the community of Derby Line has seen an increase in police presence, in part because of Operation Stone Garden: an initiative to ask state and local police officers to help assist patrolling the town on behalf of the CBP.

This community has been highlighted twice in the past month, and citizens of both countries have been the recipients of the US DHS’s increased security measures.

Nova Scotia Couple’s Horrible Wrong Turn

The CBC story covers all the details, but in a nutshell:

- Couple dropped off son at his boarding school in Stanstead.
- Driving through the town & looking at buildings, they took a left turn
- They unknowingly entered the US and were stopped by police.

From the article:

"They called border patrol, and immediately, three or four border patrol trucks came and escorted us [to the customs office]."

The couple was escorted to the official, marked border crossing, which is on the main street that runs north-south through both towns.

The U.S. Customs and Border Protection officers were not sympathetic to the Zwaagstras explanation of how they had innocently crossed the border into the U.S., said Don Zwaagstra.

"They suggested that we could be fined; we could have our vehicle impounded; we could be arrested, deported, a number of things," he said. "You know, a couple of those types of insinuations, and it depended a lot on how our criminal records checked out."

In the end, the Zwaagstra were simply escorted back to Canada — after they were fingerprinted, photographed and forced to sign documents admitting what they had done.

"I couldn't believe it was happening, and I was totally humiliated," Nancy Zwaagstra said. "I was fingerprinted; I had my mug shot taken. It was a terrible feeling."

Two Canadians who unknowingly crossed over on a street with no visible signage about the location of the border, treated like criminals for simply making the wrong turn at a border town.

American Pharmacist and an Expensive Pizza

Consider the story of Roland “Buzz” Roy, an American from Derby Line charged with illegally crossing the border for getting a pizza from a Canadian restaurant. WCAX-3 ran a story about it:

 

What this highlights is that while Canadians might experience unpleasantness crossing into the US, Americans are exposed to the same experience. Notice that it wasn’t the Canadian security officers that arrested Roland, it was American police.

What Does It All Mean?

For starters, it means the end of the border town. The border is the border, and must be respected as such. Unfortunately, that means drastic changes for communities that for so long have strived to live without noticing that they passed into a different country on a daily basis. For all of the DHS rhetoric about working with border communities, this is a clear example of how they really haven’t understood what the intricacies of border communities really are.

Operation Stone Garden that I mentioned has $60 million US federal dollars backing it…that’s $60 million being spent on overtime for police officers from non-CBP agencies to come up and aid in patrols, catching Canadians who take wrong turns and Americans strolling down the street for a pizza.

In the end, what this means is that if you can you should just avoid border communities at all costs. The treatment and expense a wrong turn can cause is too much risk.

Links

The Raw Story – Border Patrol Arrests Man for Crossing Street

Burlington Free Press – Arrest and New Border Crossing Rules Irritate Derby Line

CBC – N.S. Couple Nabbed After Mistakenly Straying into U.S.