American Citizens: U.S. Border Agents Can Search Your Cellphone

(THIS ARTICLE IS COURTESY OF NBC NEWS)

American Citizens: U.S. Border Agents Can Search Your Cellphone

When Buffalo, New York couple Akram Shibly and Kelly McCormick returned to the U.S. from a trip to Toronto on Jan. 1, 2017, U.S. Customs & Border Protection officers held them for two hours, took their cellphones and demanded their passwords.

“It just felt like a gross violation of our rights,” said Shibly, a 23-year-old filmmaker born and raised in New York. But he and McCormick complied, and their phones were searched.

Three days later, they returned from another trip to Canada and were stopped again by CBP.

“One of the officers calls out to me and says, ‘Hey, give me your phone,'” recalled Shibly. “And I said, ‘No, because I already went through this.'”

The officer asked a second time.

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Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend’s face turn red as the officer’s chokehold tightened.

Then they asked McCormick for her phone.

“I was not about to get tackled,” she said. She handed it over.

American citizens Akram Shibly, left, and Kelly McCormick had their phones searched as they reentered the U.S. at Niagara Falls, New York on two separate trips in January 2017. They say Shibly was put in a chokehold when he refused to hand over his phone on the second crossing. Michael Adamucci / for NBC News

Shibly and McCormick’s experience is not unique. In 25 cases examined by NBC News, American citizens said that CBP officers at airports and border crossings demanded that they hand over their phones and their passwords, or unlock them.

The travelers came from across the nation, naturalized citizens and people born and raised on American soil. They traveled by plane and by car at different times through different states. Businessmen, couples, senior citizens, and families with young kids, questioned, searched, and detained for hours when they tried to enter or leave the U.S. None were on terror watchlists. One had a speeding ticket. Some were asked about their religion and their ethnic origins, and had the validity of their U.S. citizenship questioned

What most of them have in common — 23 of the 25 — is that they are Muslim, like Shibly, whose parents are from Syria.

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.

According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.

“That’s shocking,” said Mary Ellen Callahan, former chief privacy officer at the Department of Homeland Security. She wrote the rules and restrictions on how CBP should conduct electronic searches back in 2009. “That [increase] was clearly a conscious strategy, that’s not happenstance.”

“This really puts at risk both the security and liberty of the American people,” said Senator Ron Wyden, D-Oregon. “Law abiding Americans are being caught up in this digital dragnet.”

“This is just going to grow and grow and grow,” said Senator Wyden. “There’s tremendous potential for abuse here.”

What Changed?

What CBP agents call “detaining” cellphones didn’t start after Donald Trump’s election. The practice began a decade ago, late in the George W. Bush administration, but was highly focused on specific individuals.

The more aggressive tactics of the past two years, two senior intelligence officials told NBC News, were sparked by a string of domestic incidents in 2015 and 2016 in which the watch list system and the FBI failed to stop American citizens from conducting attacks. The searches also reflect new abilities to extract contact lists, travel patterns and other data from phones very quickly.

DHS has published 24 reports detailing its extensive technological capability to forensically extract data from mobile devices, regardless of password protection on most Apple and Android phones. The reports document its proven ability to access deleted call logs, videos, photos, and emails to name a few, in addition to the Twitter, Facebook, and Instagram apps.

But the officials caution that rhetoric about a Muslim registry and ban during the presidential campaign also seems to have emboldened federal agents to act more forcefully.

“The shackles are off,” said Hugh Handeyside, a staff attorney with the ACLU’s National Security Project. “We see individual officers and perhaps supervisors as well pushing those limits, exceeding their authority and violating people’s rights.”

And multiple sources told NBC News that law enforcement and the Intelligence Community are exploiting a loophole to collect intelligence.

Under the Fourth Amendment, law enforcement needs at least reasonable suspicion if they want to search people or their possessions within the United States. But not at border crossings, and not at airport terminals.

“The Fourth Amendment, even for U.S. citizens, doesn’t apply at the border,” said Callahan. “That’s under case law that goes back 150 years.”

Customs and Border officers can search travelers without any level of suspicion. They have the legal authority to go through any object crossing the border within 100 miles, including smartphones and laptops. They have the right to take devices away from travelers for five days without providing justification. In the absence of probable cause, however, they have to give the devices back.

CBP also searches people on behalf of other federal law enforcement agencies, sending its findings back to partners in the DEA, FBI, Treasury and the National Counterterrorism Center, among others.

Callahan thinks that CBP’s spike in searches means it is exploiting the loophole “in order to get information they otherwise might hot have been able to.”

On January 31, an engineer from NASA’s Jet Propulsion Laboratory was pulled into additional screening upon his return to the U.S. after a two-week vacation in Chile. Despite being cleared by the Global Entry program, Sidd Bikkannavar received an “X” on his customs form. He is not Muslim, and he is not from any of the seven countries named in President Trump’s original “travel ban” executive order. Half his family comes from India but he was born and raised in California.

Bikkannavar was brought into a closed room and told to hand over his phone and passcode. He paid particular notice to the form CBP handed him which explained it had the right to copy the contents of the phone, and that the penalty for refusal was “detention.”

“I didn’t know if that meant detention of the phone or me and I didn’t want to find out,” said Bikkannavar. He tried to refuse but the officer repeatedly demanded the PIN. Eventually he acquiesced.

“Once they had that, they had everything,” Bikkannavar said. That access allowed CBP officers to review the backend of his social media accounts, work emails, call and text history, photos and other apps. He had expected security might physically search any travelers for potential weapons but accessing his digital data felt different. “Your whole digital life is on your phone.”

The officers disappeared with his phone and PIN. They returned 30 minutes later and let him go home.Sidd Bikkannavar poses for a portrait in 2014. Takashi Akaishi

CBP also regularly searches people leaving the country.

On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport’s lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel.

“They said if I need a lawyer, then I must be guilty of something,” said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.

The current policy has not been updated since 2009. Jayson Ahern, who served in CBP under both Bush and Obama, signed off on the current policy. He said the electronic searches are supposed to be based on specific, articulable facts that raise security concerns. They are not meant to be random or routine or applied liberally to border crossers. “That’s reckless and that’s how you would lose the authority, never mind the policy.”

The Customs & Border Patrol policy manual says that electronic devices fall under the same extended search doctrine that allows them to scan bags in the typical security line.

“As the threat landscape changes, so does CBP,” a spokesperson told NBC News.

Since the policy was written in 2009, legal advocates argue, several court cases have set new precedents that could make some CBP electronic searches illegal.

Several former DHS officials pointed to a 2014 Supreme Court ruling in Riley v California that determined law enforcement needed a warrant to search electronic devices when a person is being arrested. The court ruled unanimously, and Chief Justice John Roberts wrote the opinion.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,'” wrote Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Because that case happened outside of the border context, however, CBP lawyers have repeatedly asserted in court that the ruling does not apply to border searches.

For now a Department of Justice internal bulletin has instructed that, unless border officers have a search warrant, they need to take protective measures to limit intrusions, and make sure their searches do not access travelers’ digital cloud data. The ‘cloud’ is all content not directly stored on a device, which includes anything requiring internet to access, like email and social media.

Former DHS officials who helped design and implement the search policy said they agreed with that guidance.

Wyden Pushes to Change the Policy

On February 20, Sen. Wyden wrote to DHS Secretary John Kelly demanding details on electronic search-practices used on U.S. citizens, and referred to the extent of electronic searches as government “overreach”. As of publication, he had yet to receive an answer.

Now Sen. Wyden says that as early as next week he plans to propose a bill that would require CBP to at least obtain a warrant to search electronics of U.S. citizens, and explicitly prevent officers from demanding passwords.

“The old rules … seem to be on the way to being tossed in the garbage can,” said Senator Wyden. “I think it is time to update the law.”

Akram Shibly at home in Buffalo, Sunday March, 12, 2017. Michael Adamucci / for NBC News

Asked about the Shibly case, a CBP spokesperson declined to comment, but said the Homeland Security Inspector General is investigating. The spokesperson said the agency can’t comment on open investigations or particular travelers, but that it “firmly denies any accusations of racially profiling travelers based on nationality, race, sex, religion, faith, or spiritual beliefs.”

Explaining the sharp increase in electronic searches, a department spokesperson told NBC News: “CBP has adapted and adjusted to align with current threat information, which is based on intelligence.” A spokesman also noted that searches of citizens leaving the U.S. protect against the theft of American industrial and national security secrets.

After repeated communications, the Department of Homeland Security never responded to NBC News’ requests for comments. Nonetheless, the Homeland Security Inspector General is currently auditing CBP’s electronic search practices.

The Council on American-Islamic Relations (CAIR) also has filed two dozen complaints against CBP this year for issues profiling Muslim Americans. CAIR and the Electronic Frontier Foundation are considering legal action against the government for what they consider to be unconstitutional searches at the border.

Kansas Clerk Shot By Suspected Killer In Manhunt Recalls Ordeal

(THIS ARTICLE IS COURTESY OF NBC NEWS)

Kansas Clerk Shot by Suspected Killer in Manhunt Recalls Ordeal

A 19-year-old store clerk in Kansas who was shot by a murder suspect on the run from authorities Wednesday said he’s lucky to be alive.

Alex Deaton, who police suspect in two murders and two other shootings, shot Riley Juel at point-blank range after taking his car keys hours before his alleged crime spree would come to an end.

“This can’t be real at all, and then, I mean it came back to me, this is real,” Juel told NBC affiliate KSNW in Wichita, a day after he was shot by suspect Alex Deaton in Pratt.

“I was just scared I was going to die,” Juel told the station.

Convenience store clerk Riley Juel recovers at the hospital in Wichita, Kansas, on March 2. Maria Loving / Christi Health via AP

Deaton, 28, fled in Juel’s Cadillac and was caught after a high-speed chase with the Kansas Highway Patrol that ended in a fiery crash, police said.

Deaton is suspected in the murder of his girlfriend, 30-year-old Heather Robinson, whose body was found at her Rankin County, Mississippi home on Friday. He is also suspected of being involved in the death of a woman found fatally shot at her Neshoba County church on Thursday.

Deaton had been chased by sheriff’s deputies earlier Wednesday morning, but the stolen car he was driving was disabled by stop sticks and he entered the Kwik Shop and demanded Juel’s keys, authorities said.

After Juel handed the keys over, he said Deaton shot him at point-blank range and fled. Juel called 911 and thanked the dispatcher and a police officer who arrived on the scene. “If it wasn’t for them, I probably would have been dead,” he told the station.

image: Alex Deaton
Alex Deaton, 28, is suspected of killing two people and shooting a store clerk in a three-state crime spree. MBI via WLBT

Juel is stable at a hospital. Jule’s sister, Brooke Juel, told the KSNW her brother’s call to police helped catch the suspect, and called him a hero.

Deaton also allegedly shot a jogger at random from his vehicle in Mississippi on Friday, and carjacked and briefly kidnapped a couple at a trailhead near Albuquerque on Tuesday.

During the carjacking and kidnapping, Deaton shot a man in the buttocks and a bullet grazed a woman as they escaped, the Rankin County, Mississippi, sheriff’s office said.

Also Friday, Deaton’s family said in a statement that they are “in a state of disbelief” and are fully cooperating with law enforcement.

“Our family is deeply shocked, saddened and horrified at all that has unfolded since last Wednesday,” Deaton’s family said in a statement to NBC affiliate WLBT in Jackson.

“We are devastated and completely heartbroken for all that has happened. Our family is in a state of disbelief. We don’t understand why or how this could ever happen and are just thankful it has now come to an end,” the statement said. The family expressed condolences to the victims and their families.

Rankin County, Mississippi, Sheriff Bryan Bailey says investigators hoped to talk to Deaton Thursday afternoon. Authorities are expected to seek extradition to Mississippi.

Image:
This handout photo shows an overturned vehicle following a police chase that ended in the capture of suspected killer Alex Deaton on March 1, 2017 near Wilson, Kansas. Kansas Highway Patrol via AP

Boy, 12, Accused of Nail Bomb Attempt on Christmas Market in Germany

(THIS ARTICLE IS COURTESY OF TIME MAGAZINE, REUTERS AND NBC NEWS)

Boy, 12, Accused of Nail Bomb Attempt on Christmas Market in Germany

The boy was possibly controlled by ISIS, local media reports

12-Year-Old Attempts Nail Bomb Attack at German Christmas Market: Report
German officials say a 12-year-old tried to detonate a nail bomb in a Christmas market in Ludwigshafen in western Germany.

A 12-year-old boy attempted to commit attacks on a Christmas market and near a town hall in Ludwigshafen, western Germany, in the space of just over a week, officials say.

Hubert Stroeber, a spokesman for the local prosecutor’s office, told Reuters that the boy, who is German but of Iraqi heritage, tried and failed to detonate a nail bomb at the Christmas market on Nov. 26 and then planted another self-made explosive device in a backpack near the town hall on Dec. 5. A passer-by drew the police’s attention to the abandoned backpack, and specialists destroyed it in a controlled explosion.

The boy was possibly controlled by ISIS, according to the German magazine FOCUS. The “religiously radicalized” boy was “instigated [by an] unknown member” of the terrorist organization and had been planning to flee to Syria last summer, it reports. Authorities also told television network ZDF that the boy had been radicalized via social media and the internet.

A spokesman at the Federal Public Prosecutor Office in Karlsruhe confirmed that officials were investigating the case but declined to comment on any possible Islamic State link, Reuters states.

As the child is 12 and Germany’s age of criminal responsibility is 14, the boy was not arrested but reportedly taken into foster care instead. Hubert Stroeber, a spokesman for the local prosecutor’s office, told NBC News that an investigation would be “turned down” because of the boy’s age.

Former Special Forces Officer: Gen. ‘Mad Dog’ Mattis Left ‘My Men to Die’

(THIS ARTICLE IS COURTESY OF NBC NEWS)

NEWS
DEC 2 2016, 2:00 PM ET

Former Special Forces Officer: Gen. ‘Mad Dog’ Mattis Left ‘My Men to Die’

A former Army Special Forces officer is accusing retired Marine General James Mattis, President-elect Donald Trump’s pick to be defense secretary, of “leaving my men to die” after they were hit by friendly fire in Afghanistan in 2001.

Mattis has not commented publicly on the incident, which was chronicled in a 2011 New York Times bestselling book, “The Only Thing Worthy Dying For,” by Eric Blehm. The book portrays Mattis as stubbornly unwilling to help the Green Berets.

His actions, which were not formally investigated at the time, are now likely to get far more scrutiny during the retired general’s Senate confirmation process.

Trump’s transition team did not respond to request for comment from NBC News. Nor did Mattis, whose 2013 retirement from the military means he would need a waiver from Congress to serve as the civilian Pentagon chief.

Mattis is a highly decorated former wartime commander who became famous for leading the 1st Marine Division’s lightning fast movement into Baghdad during the U.S. invasion of Iraq in 2003.

Image: James M Mattis on the USS Peleliu before Afghanistan mission
James M. Mattis (2R), U.S. Marine General, aboard the USS Peleliu in 2001. JIM HOLLANDER / EPA

On December 5, 2001, as the wreckage of the twin towers still smoldered in lower Manhattan, a team of Army Green Berets accompanying Hamid Karzai, the future president of Afghanistan, was hit by a U.S. smart bomb in a case of friendly fire.

Two American soldiers died instantly and a third was badly wounded. He would later die. Dozens of Afghans also were killed, and the CIA officer who now runs the agency’s spying arm protected Karzai with his body.

Mattis, then a brigadier general commanding a nearby group of Marines, refused repeated requests to send helicopters to rescue the Green Berets, people involved in the operation tell NBC News. The helicopters under Mattis’ command at Camp Rhino were about 45 minutes away, according to the book.

And, as commander, Mattis had final approval for the decision not to dispatch a rescue mission from there.

Who is Gen. James Mattis? 14:50

“He was indecisive and betrayed his duty to us, leaving my men to die during the golden hour when he could have reached us,” Jason Amerine, who led the Army special forces operation as a captain, said in a Facebook post Friday morning.

“Every element in Afghanistan tried to help us except the closest friendly unit, commanded by Mattis,” added Amerine, who retired as a lieutenant colonel and made news in recent years as a prominent critic of the Obama administration’s hostage policies.

The 15th anniversary of the Afghanistan friendly fire incident is Monday. Master Sgt. Jefferson Donald Davis, 39; Sgt. 1st Class Daniel Henry Petithory, 32; and Staff Sgt. Brian Cody Prosser, 28, were killed.

Ultimately, an Air Force Special Forces unit based three hours away, in Pakistan, sent older helicopters to rescue Amerine and his men. Three more Afghans and a badly-wounded American, Brian Cody Prosser, died on the way to the hospital, according to the book. It is not known whether any of them could have been saved.

Image: File picture of Gen. James Mattis testifying before the Senate Armed Services Committee hearing
FILE PICTURE: General James Mattis testifies before the Senate Armed Services Committee hearing on Capitol Hill in Washington July 27, 2010, on his nomination to be Commander of U.S. Central Command. YURI GRIPAS / Reuters

Mattis declined to be interviewed for the book, Blehm, its author, told NBC News. Other witnesses quoted Mattis saying that he didn’t want to send a rescue mission into an uncertain situation.

According to witness accounts in the book, Mattis reportedly questioned why a rescue mission was needed and worried about whether the situation on the ground was secure.

Later, when a special forces Sergeant, David Lee, protested his decision, Mattis threw him out of his office, Blehm wrote.

The Obama administration was criticized for years by many Republicans—including Vice President-elect Mike Pence — for failing to mount a military rescue when a diplomatic post was attacked in 2012 in Benghazi, Libya, despite military officials saying no rescue was possible.

In this case, another military unit had to act because Mattis did not, Blehm said.

“The Air Force Special Operations Command had the same exact information as Mattis. They launched immediately,” he said.

Image: FILES-US-POLITICS-TRUMP
Mattis with President-elect Trump and Vice president-elect Pence. DON EMMERT / AFP – Getty Images

Blehm spent three years researching the book, including a long interview with Karzai, he told NBC News.

He interviewed six of the surviving eleven Green Berets involved in the operation.

“Every one of them said, when they were this mass casualty situation, either wounded tending to the wounded of their buddies, every one of them were thinking, where in the hell are the Marines?”

In his Facebook post, Amerine — who declined to speak on the record to NBC News — said it was ironic that Mattis later became famous for relieving a battalion commander for alleged indecisiveness during the invasion of Iraq in 2003.

“The delay of Mattis in launching MEDEVAC on December 5th was never in question, not even by him,” Amerine said. “The only debate was whether it was justified and how many died as a result.”

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