Deep Dive: DHS and CBP Nominees’ Unsatisfying Responses to Senators’ Questions on Border Device Searches

  • Two of President Trump’s top homeland security nominees faced tough questioning from Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) about the civil liberties implications of border searches of digital devices during their confirmation processes. In this deep-dive legal analysis, we dissect the written responses of Kirstjen Nielsen and Kevin McAleenan to “questions for the record” submitted by Sens. Wyden and Paul.

    Nielsen, the nominee for secretary of the U.S. Department of Homeland Security (DHS), served as chief of staff to the former DHS secretary, John Kelly. When Kelly became White House chief of staff for President Trump, Nielsen followed to become a White House aide. McAleenan, the nominee for commissioner of U.S. Customs and Border Protection (CBP), has served as acting commissioner since the beginning of the Trump administration.

    Both Nielsen and McAleenan revealed that CBP is currently reviewing its 2009 policy directive on border device searches and will “revise and update it to reflect evolving and operational practices on this important and sensitive issue.” McAleenan also promised Sen. Wyden that he would make the revised policy public. We eagerly await the revised policy.

    The only policy update since 2009 that CBP has publicly discussed so far is the April 2017 “muster” that directs border agents not to access cloud data during device searches, and to disable a device’s Internet access prior to searching to ensure this is the case.

    Additionally, we will be interested to see whether and how the revised policy addresses two key cases that have come down since 2009: the United States Court of Appeals for the Ninth Circuit’s 2013 decision in U.S. v. Cotterman and the U.S. Supreme Court’s 2014 decision in Riley v. California.

    In Cotterman, the Ninth Circuit held that the Fourth Amendment requires border agents to have reasonable suspicion before conducting a software-aided “forensic” search (as opposed to a manual search) of a digital device such as a laptop. In Riley, the Supreme Court held that cell phones are not subject to the search-incident-to-arrest exception—which permits warrantless and suspicionless searches of arrestees and items in their possession—and thus, consistent with the Fourth Amendment, police must first obtain a probable cause warrant before searching the cell phone of an arrestee. As we have extensively argued, Riley should apply at the border given the significant and unprecedented privacy interests travelers have in their cell phones, laptops, and other digital devices.

    Referencing Cotterman, Sen. Wyden asked McAleenan: “If CBP has been able to protect our borders and, more broadly, U.S. national security, while following a reasonable suspicion standard in the 9th Circuit, why could the agency not also adopt the same standard elsewhere in the country?”

    McAleenan responded: “CBP is actively engaged in reviewing its [2009] governing policy on the border search of electronic devices, to include setting appropriate policy limitations for these searches, particularly when forensic review is involved.”

    This response is intriguing because it raises the question whether CBP is actually considering writing the Cotterman rule into its border device search policy directive, which would apply across the country and not just in the nine western states under the jurisdiction of the Ninth Circuit. Moreover, McAleenan could have argued that Cotterman has hampered CBP’s border security mission, yet his silence suggests that this has not been the case.

    Sen. Wyden asked McAleenan how many border device searches were supported by reasonable suspicion.

    McAleenan responded: “CBP does not compile this specific data set.”

    This is disappointing. It would be helpful to have this statistic to see how often border agents actually operate with some objective reason to believe that a traveler has violated an immigration or customs law. This would shed light on any claims by CBP that a universally applied higher standard of suspicion for border device searches would be impractical. Also, it would be instructive to know at a more granular level whether certain ports-of-entry or even specific agents conduct suspicionless searches more often than others.

    Sen. Paul asked Nielsen what the maximum amount of time is that border agents may delay entry for a traveler in order to search their devices.

    Nielsen didn’t answer this question, but instead reiterated CBP’s default rule that devices may be detained for not more than five days. However, while the default length of a device detention is five days, § 5.3.1 of CBP’s 2009 policy directive expressly allows for indefinite device detention if a supervisor agrees there are undefined “extenuating circumstances.” Presumably applying this nebulous standard, for the last 10 months CBP has confiscated the phone of Suhaib Allababidi, one of the plaintiffs in our lawsuit against DHS and CBP concerning border device searches and confiscations. As to Sen. Paul’s actual question, our clients suffered entry delays for several hours while agents searched their devices. One client, Jeremy Dupin, was detained for seven hours on Christmas Eve, along with his young daughter.

    Sen. Wyden noted: “When meeting with my staff, CBP personnel stated that the agency does occasionally perform border searches of Americans’ electronic devices at the request of other governmental agencies.”

    McAleenan responded: “[T]he use of other federal agency analytical resources, such as translation, decryption, and subject matter expertise, may be needed to assist CBP in reviewing the information contained in electronic devices or to determine the meaning, context, or value of information contained in electronic devices.”

    McAleenan was referring to § 5.3.2 of CBP’s 2009 policy directive. The problem with McAleenan’s response is that he conflated border device searches at the request of other agencies, with border device searches conducted with the assistance of other agencies. He failed to address the former issue, which raises the specter of government officials evading the Fourth Amendment’s warrant requirement by trying to stretch the border search doctrine—which permits warrantless and suspicionless “routine” searches—to cover investigations unrelated to the border.

    We know that CBP does conduct searches for other agencies, and that those searches have nothing to do with a traveler at the border possibly violating an immigration or customs law. For example, in U.S. v. Saboonchi, Ali Saboonchi (a dual U.S. and Iran citizen) was returning to the U.S. from a vacation to Niagara Falls with his wife when border agents saw in a government database that he was the subject of a pre-existing investigation for violating the trade embargo with Iran. That investigation started with the FBI and continued with Homeland Security Investigations (HSI), a part of U.S. Immigration and Customs Enforcement (ICE). When border agents called an HSI special agent to flag that Saboonchi was at the border, she told them to detain Saboonchi’s devices to, as the district court explained, “take advantage of” the government’s authority to conduct warrantless border searches, in the hope of furthering that separate investigation—which had no nexus to Saboonchi’s border crossing.

    Sen. Wyden asked McAleenan: “Have CBP personnel ever surreptitiously installed surveillance software or malware onto a traveler’s device during a border search? Alternatively, has CBP assisted another government agency in covertly installing malware onto a traveler’s electronic device?”

    McAleenan responded “no” to both these questions, but limited his answer “to my knowledge.” If this is true, we welcome this assurance, as we know that this has been a significant fear of many travelers.

    Sen. Wyden asked McAleenan: “I think it’s important that people know their rights, and that CBP can’t demand people assist in unlocking a device at the border. Will you commit to making sure that individuals know their rights, and your authorities, before they’re asked to provide assistance in searching a device?”

    McAleenan referenced a “tear sheet” claiming that it “clearly explains and details the authority supporting the search of their electronic device.” But this document does not notify travelers that they have a right to refuse to provide their password or PIN, or otherwise provide border agents access to their digital devices. To the contrary, this document commands travelers to comply with border agents’ demands:

    CONSEQUENCES OF FAILURE TO PROVIDE INFORMATION: Collection of this information is mandatory at the time that CBP or ICE seeks to copy information from the electronic device. Failure to provide information to assist CBP or ICE in the copying of information from the electronic device may result in its detention and/or seizure.

    Finally, McAleenan revealed in his responses to Sen. Wyden that the number of border device searches for fiscal year 2017 (which ran from Oct. 1, 2016-Sept. 30, 2017) was 30,151. This is compared to 5,085 searches for FY 2012—reflecting a six-fold increase in the past five years.

    McAleenan also revealed that of the FY 2017 border device searches, 20% (6,003) of travelers were American citizens. This is a large number of Americans whose privacy was invaded simply for traveling abroad. Moreover, this number doesn’t take into account legal permanent residents (green card holders), who also enjoy the Fourth Amendment right to privacy in their cell phones and other digital devices.

    We thank Sens. Wyden and Paul for continuing to shine a light on border device searches. The more we know about this rampant invasion of digital liberty, the easier it will be to reform it.

    For more information on your rights at the border, read our whitepaper: Digital Privacy at the U.S. Border: Protecting the Data On Your Devices and In the Cloud.

    We also urge you to contact your members of Congress and tell them to support the Protecting Data at the Border Act (S. 823/H.R. 1899), which would require border agents to get a probable cause warrant before searching the digital devices of U.S. citizens and lawful permanent residents.

Tmux Commands

screen and tmux

A comparison of the features (or more-so just a table of notes for accessing some of those features) for GNU screen and BSD-licensed tmux.

The formatting here is simple enough to understand (I would hope). ^ means ctrl+, so ^x is ctrl+x. M- means meta (generally left-alt or escape)+, so M-x is left-alt+x

It should be noted that this is no where near a full feature-set of either group. This - being a cheat-sheet - is just to point out the most very basic features to get you on the road.

Trust the developers and manpage writers more than me. This document is originally from 2009 when tmux was still new - since then both of these programs have had many updates and features added (not all of which have been dutifully noted here).

Action tmux screen
start a new session tmux OR
tmux new OR
tmux new-session
re-attach a detached session tmux attach OR
tmux attach-session
re-attach an attached session (detaching it from elsewhere) tmux attach -d OR
tmux attach-session -d
screen -dr
re-attach an attached session (keeping it attached elsewhere) tmux attach OR
tmux attach-session
screen -x
detach from currently attached session ^b d OR
^b :detach
^a ^d OR
^a :detach
rename-window to newname ^b , <newname> OR
^b :rename-window <newn>
^a A <newname>
list windows ^b w ^a w
list windows in chooseable menu ^a "
go to window # ^b # ^a #
go to last-active window ^b l ^a ^a
go to next window ^b n ^a n
go to previous window ^b p ^a p
see keybindings ^b ? ^a ?
list sessions ^b s OR
tmux ls OR
tmux list-sessions
screen -ls
toggle visual bell ^a ^g
create another window ^b c ^a c
exit current shell/window ^d ^d
split window/pane horizontally ^b " ^a S
split window/pane vertically ^b % ^a |
switch to other pane ^b o ^a <tab>
kill the current pane ^b x OR (logout/^D)
collapse the current pane/split (but leave processes running) ^a X
cycle location of panes ^b ^o
swap current pane with previous ^b {
swap current pane with next ^b }
show time ^b t
show numeric values of panes ^b q
toggle zoom-state of current pane (maximize/return current pane) ^b z
break the current pane out of its window (to form new window) ^b !
re-arrange current panels within same window (different layouts) ^b [space]
Kill the current window (and all panes within) ^b killw [target-window]
  • Criteo is an ad company. You may not have heard of them, but they do retargeting, the type of ads that pursue users across the web, beseeching them to purchase a product they once viewed or have already bought. To identify users across websites, Criteo relies on cross-site tracking using cookies and other methods to follow users as they browse. This has led them to try and circumvent the privacy features in Apple’s Safari browser which protects its users from such tracking. Despite this apparently antagonistic attitude towards user privacy, Criteo has also been whitelisted by the Acceptable Ads initiative. This means that their ads are unblocked by popular adblockers such as Adblock and Adblock Plus. Criteo pays Eyeo, the operator of Acceptable Ads, for this whitelisting and must comply with their format requirements. But this also means they can track any user of these adblockers who has not disabled Acceptable Ads, even if they have installed privacy tools such as EasyPrivacy with the intention of protecting themselves. EFF is concerned about Criteo’s continued anti-privacy actions and their continued inclusion in Acceptable Ads.

    Safari Shuts out Third Party Cookies…

    All popular browsers give users control over who gets to set cookies, but Safari is the only one that blocks third-party cookies (those set by a domain other than the site you are visiting) by default. (Safari’s choice is important because only 5-10% of users ever change default settings in software.) Criteo relies on third-party cookies. Since users have little reason to visit Criteo’s own website, the company gets its cookies onto users’ machines through its integration on many online retail websites. Safari’s cookie blocking is a major problem for Criteo, especially given the large and lucrative nature of iPhone’s user base. Rather than accept this, Criteo has repeatedly implemented ways to defeat Safari’s privacy protections.

    One workaround researchers detected Criteo using was to redirect users from sites where their service was present to their own. For example, if you visited and clicked on a product category, you would be first diverted to and then redirected to Although imperceptible to the user, this detour was enough to persuade the browser that is a site you chose to visit, and therefore a first party entitled to set a cookie rather than a third party. Criteo applied for a patent on this method in August 2013.

    …And Closes the Backdoor

    Last summer, however, Apple unveiled a new version of Safari with more sophisticated cookie handling—called Intelligent Tracking Prevention (ITP)—which killed off the redirect technique as a means to circumvent the cookie controls. The browser now analyzes if the user has engaged with a website in a meaningful way before allowing it to set a cookie. The announcement triggered panic among advertising companies, whose trade association, the Interactive Advertising Bureau, denounced the feature and rushed out technical recommendations to work around it. Obviously the level of user “interaction” with Criteo during the redirect described above fails ITP’s test, which meant Criteo was locked out again.

    It appears that Criteo’s response was to abandon cookies for Safari users and to generate a persistent identifier by piggybacking on a key user safety technology called HSTS. When a browser connects to a site via HTTPS (i.e. a site that supports encryption), the site can respond with an HTTP Strict Transport Security policy (HSTS), instructing the browser to only contact it using HTTPS. Without a HSTS policy, your browser might try to connect to the site over regular old unencrypted HTTP in the future—and thus be vulnerable to a downgrade attack. Criteo used HSTS to sneak data into the browser cache to produce an identifier it could use to recognize the individual’s browser and profile them. This approach relied on the fact that it is difficult to clear HSTS data in Safari, requiring the user to purge the cache entirely to delete the identifier. For EFF, it is especially worrisome that Criteo used a technique that pits privacy protection against user security interests by targeting HSTS. Use of this mechanism was documented by Gotham City Research, an investment firm who have bet against Criteo’s stock.

    In early December, Apple released an update to iOS and Safari which disabled Criteo’s ability to exploit HSTS. This led to Criteo revising down their revenue forecasts and a sharp fall in their share price.

    How is Criteo Acceptable Advertising”****?

    "… w__e sort of seek the consent of users, just like we had done before_."__1_ - Erich Eichmann, CEO Criteo

    _"Only users who don’t already have a Criteo identifier will see the header or footer, and it is displayed only once per device. Thanks to [the?] Criteo advertisers network, most of your users would have already accepted our services on the website of another of our partner. On average, only 5% of your users will see the headers or footers, and for those who do, the typical opt-out rate is less than .2%._" - Criteo Support Center

    Criteo styles itself as a leader in privacy practices, yet they have dedicated significant engineering resources to circumventing privacy tools. They claim to have obtained user consent to tracking based on a minimal warning delivered in what we believe to be a highly confusing context. When a user first visits a site containing Criteo’s script, they received a small notice stating, _"_Click any link to use Criteo’s cross-site tracking technology." If the user continues to use the site, they are deemed to have consented. Little wonder that Criteo can boast of a low opt-out rate to their clients.

    Due to their observed behaviour prior to the ITP episode, Criteo’s incorporation into the Acceptable Ads in December 2015 aroused criticism among users of ad blockers. We have written elsewhere about how Acceptable Ads creates a clash of interests between adblocking companies and their users, especially those concerned with their privacy. But Criteo’s participation in Acceptable Ads brings into focus the substantive problem with the program itself. The criteria for Acceptable Ads are concerned chiefly with format and aesthetic aspects (e.g. How big is the ad? How visually intrusive? Does it blink?) and excludes privacy concerns. Retargeting is unpopular and mocked by users, in part because it wears its creepy tracking practices on its sleeve. Our view is that Criteo’s bad behavior should exclude its products from being deemed “acceptable” in any way.

    The fact that the Acceptable Ads Initiative has approved Criteo’s user-tracking-by-misusing-security-features ads is indicative of the privacy problems we believe to be at the heart of the Acceptable Ads program. In March this year, Eyeo announced an Acceptable Ads Committee that will control the criteria for Acceptable Ads in the future. The Committee should start by instituting a rule which excludes companies that circumvent explicit privacy tools or exploit user security technologies for the purpose of tracking.


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  • Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying “Good luck in the race!” or “Have fun in New York!” Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That’s not a good invention, it’s our latest Stupid Patent of the Month.

    U.S. Patent No. 9,069,648 is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” The patent provides examples such as sending the message “don’t give up” when the user is running up a hill. The examples aren’t limited to health or exercise. For example, the patent suggests sending messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.”

    The patent’s description of its invention is filled with silly, non-standard acronyms like ABS for “activity based suggestive” messages or EBIF for “electronic based intelligence function.” These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.

    The ’648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of the people behind it has been involved in massive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the ’648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.

    We believe that the claims of the ’648 patent are clearly invalid under the Supreme Court’s decision in Alice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:

    The software and software logic described in this document … which comprises an ordered listing of executable instructions for implementing logical functions, can be embodied in any non-transitory computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions.

    The ’648 patent issued on June 30, 2015, a full year after the Supreme Court’s Alice ruling. Despite this, the patent examiner never even discussed the decision. If Alice is to mean anything at all, it has to be applied to an application like this one.

    In our view, if Motivational Health Messaging asserts its patent in court, any defendant that fought back should prevail under Alice. Indeed, we would hope that the court would strongly consider awarding attorney’s fees to the defendant in such a case. Shipping & Transit has now had two fee awards made against it for asserting patents that are clearly invalid under Alice. And the Federal Circuit recently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerning Alice.

    In addition to the problems under Alice, we believe the claims of the ’648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new about sending motivational messages or automatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a “user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole.” But golf apps were already doing this. The Patent Office didn’t consider any real-world mobile phone applications when reviewing the application.

    If you want to look for prior art yourself, Unified Patents is running a crowdsourcing contest to find the best prior art to invalidate the ’648 patent. Aside from the warm feelings that come from fighting patent trolls, there is a $2000 prize pool.

    Despite the weakness of its patent, Motivational Health Messaging LLC might still send out demand letters. If you receive such a letter, you can contact EFF and we can help you find counsel.

    We have long complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. The history of the ’648 patent shows how the Patent Office’s failure to properly review applications leads to bad patents falling into the hands of trolls.

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