Many of you will be crossing the U.S. border soon because of travel to the Tor Meeting. I was supposed to be there, but child care obligations will keep me stateside.
As an immigration lawyer and a member of the Tor community, I would like to give you all a crash course in crossing the U.S. border.
This document does not discuss anything related to seeking asylum or other refugee status. If you hold or may seek refugee status of any kind, seek professional help.
== If you are not a U.S. citizen == If you have permanent resident status, have a visa or are a national of a country that is part of the Visa Waiver Program [fn:1], when you present yourself to an immigration officer at the border the officer evaluates whether you are inadmissible under any of the many grounds in section 212 of the Immigration and Nationality Act. [fn:2] Having a travel document does not guarantee you entry. All people who are not U.S. citizens are subject to the entire slate of grounds of inadmissibility, including long-time permanent residents.
If the official finds that you are inadmissible, you will be denied entry and detained pending your removal. Some people, like permanent residents, will be detained for weeks until they can see an immigration judge to receive a hearing on their inadmissibility.
The agent will likely ask you questions about who you are and where you are going. You have a right under the United States constitution to refuse to answer questions, but if you refuse to answer the officer will surely deny you entry and will likely detain you for further questioning.
Immigration officers have wide latitude to question you and deny you entry. You have little legal recourse against this. Read the grounds of inadmissibility [fn:1] and you will see the many ways you can be lawfully denied entry, even as a permanent resident.
If you have ever been arrested or otherwise feel that you may be singled out, contact me or another immigration lawyer before you intend to cross the border.
== If you are a U.S. citizen == The government has to let you in. They can, however, detain you for questioning and search you and your property.
== For everyone: border searches == At the U.S. border, immigration officers may search you basically for any reason, or no reason. They do not have to articulate any suspicion.
They can, and do routinely, go through all your property, including your devices. They can clone your hard drive. They can attach forensic tools to your phone or other device. They can seize your item as evidence against you. You can not do anything to stop this.
The one things you can do is refuse to give passwords. You have a constitutional right to remain silent that is fairly strong here. If you are a U.S. citizen, they have no recourse except to detain, question, and intimidate you further. They cannot detain you for an unreasonable amount of time, measured by what an imaginary "objective reasonable person" would think is reasonable. This amount of time will be longer than you personally think is reasonable.
If you are a non-citizen, they could deny you entry for your refusal.
If you are stopped and your device is searched or you are asked for passwords, contact me.
== About me == I am a relay operator, a lawyer, and partner to Alison. I am in IRC at @frabyn.
My practice is criminal defense and immigration in Texas. My website is https://bynumlaw.net/
* Footnotes
[fn:1] https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html
[fn:2] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006...
Wonderful, thanks for sending this Franklin! Wonderful summary, especially for us folks that don't do terribly much international travel. ;P
Many years ago I attended the DefCon EFF panel discussion on if you could be compelled to give your password at the border. At that time it was still legally fuzzy so glad to hear it resolved in this direction. :P
Not a fan of losing my devices but meh. That's why I travel with a blank laptop.
On Fri, Mar 17, 2017 at 11:35 AM, Franklin Bynum franklin@bynumlaw.net wrote:
Many of you will be crossing the U.S. border soon because of travel to the Tor Meeting. I was supposed to be there, but child care obligations will keep me stateside.
As an immigration lawyer and a member of the Tor community, I would like to give you all a crash course in crossing the U.S. border.
This document does not discuss anything related to seeking asylum or other refugee status. If you hold or may seek refugee status of any kind, seek professional help.
== If you are not a U.S. citizen == If you have permanent resident status, have a visa or are a national of a country that is part of the Visa Waiver Program [fn:1], when you present yourself to an immigration officer at the border the officer evaluates whether you are inadmissible under any of the many grounds in section 212 of the Immigration and Nationality Act. [fn:2] Having a travel document does not guarantee you entry. All people who are not U.S. citizens are subject to the entire slate of grounds of inadmissibility, including long-time permanent residents.
If the official finds that you are inadmissible, you will be denied entry and detained pending your removal. Some people, like permanent residents, will be detained for weeks until they can see an immigration judge to receive a hearing on their inadmissibility.
The agent will likely ask you questions about who you are and where you are going. You have a right under the United States constitution to refuse to answer questions, but if you refuse to answer the officer will surely deny you entry and will likely detain you for further questioning.
Immigration officers have wide latitude to question you and deny you entry. You have little legal recourse against this. Read the grounds of inadmissibility [fn:1] and you will see the many ways you can be lawfully denied entry, even as a permanent resident.
If you have ever been arrested or otherwise feel that you may be singled out, contact me or another immigration lawyer before you intend to cross the border.
== If you are a U.S. citizen == The government has to let you in. They can, however, detain you for questioning and search you and your property.
== For everyone: border searches == At the U.S. border, immigration officers may search you basically for any reason, or no reason. They do not have to articulate any suspicion.
They can, and do routinely, go through all your property, including your devices. They can clone your hard drive. They can attach forensic tools to your phone or other device. They can seize your item as evidence against you. You can not do anything to stop this.
The one things you can do is refuse to give passwords. You have a constitutional right to remain silent that is fairly strong here. If you are a U.S. citizen, they have no recourse except to detain, question, and intimidate you further. They cannot detain you for an unreasonable amount of time, measured by what an imaginary "objective reasonable person" would think is reasonable. This amount of time will be longer than you personally think is reasonable.
If you are a non-citizen, they could deny you entry for your refusal.
If you are stopped and your device is searched or you are asked for passwords, contact me.
== About me == I am a relay operator, a lawyer, and partner to Alison. I am in IRC at @frabyn.
My practice is criminal defense and immigration in Texas. My website is https://bynumlaw.net/
- Footnotes
[fn:1] https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html
[fn:2] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006...
-- Franklin Bynum Lawyer 2814 Hamilton Street Houston, Texas 77004 +1 713 343-8844
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Damian Johnson wrote:
Many years ago I attended the DefCon EFF panel discussion on if you could be compelled to give your password at the border. At that time it was still legally fuzzy so glad to hear it resolved in this direction. :P
Officers will still lie and tell you that you have to give them the password. They basically are allowed to lie to you about it. You must hold firm, they can not make you.
Franklin Bynum:
As an immigration lawyer and a member of the Tor community, I would like to give you all a crash course in crossing the U.S. border.
If you want more detail: https://www.eff.org/wp/digital-privacy-us-border-2017 https://www.eff.org/files/2017/03/10/digital-privacy-border-2017-guide3.10.1...
On Fri, Mar 17, 2017 at 01:35:30PM -0500, Franklin Bynum wrote:
== If you are a U.S. citizen == The government has to let you in. They can, however, detain you for questioning and search you and your property.
If you want one person's account of what that's like, I (a U.S. citizen) wrote about my experience being detained at the border in 2013 for not answering questions. I was in secondary for around seven hours and in a cell for most of that time.
On 17 March 2017 at 15:05, David Fifield david@bamsoftware.com wrote:
On Fri, Mar 17, 2017 at 01:35:30PM -0500, Franklin Bynum wrote:
== If you are a U.S. citizen == The government has to let you in. They can, however, detain you for questioning and search you and your property.
If you want one person's account of what that's like, I (a U.S. citizen) wrote about my experience being detained at the border in 2013 for not answering questions. I was in secondary for around seven hours and in a cell for most of that time.
I have a couple of questions:
At BH EU 2012 (http://www.blackhat.com/html/bh-eu-12/bh-eu-12-archives.html ) I asked Marcia and Seth about the "If you're a citizen they have to let you in" because they explicitly didn't mention it in their talk. They said they used to believe that, but they had recently reviewed the case law and found that what they thought it was based off was not as strong as they thought (something about Puerto Rico...) Now I see they have reversed and are stating that confidently again in their 2017 guide. Do you happen to know anything about this, why they may have changed their mind? Any new case law or something? (bcc Seth in case he wants to weigh in public or privately...)
Secondly: In David's account he talks about being threatened with the remarks on his profile and so on, as well as being told he must answer the questions. At what point (in the actual event or hypothetically) would he get standing for Bivens claim? Would he have standing for being lied to and tricked/threatened into talking? If not, would he have standing if they marked his file and it resulted in detainment upon a subsequent reentry a) if he didn't cooperate or b) if he did?
-tom
On Fri, Mar 17, 2017 at 2:35 PM, Franklin Bynum franklin@bynumlaw.net wrote: [...]
If you are stopped and your device is searched or you are asked for passwords, contact me.
At what stage would one be able to contact an attorney?
Nick Mathewson wrote:
At what stage would one be able to contact an attorney?
Great question, and the answer illustrates a central idea to all this.
You would contact an attorney after it is all over. All of your remedies in this situation are retrospective.
You can have a friend keep track of you in case you disappear for a few hours. You can also have an attorney standing by to file a federal habeas application in the nearest federal district court, but immigration officials will usually release you before the federal court has an opportunity to act.
Your remedies afterward include what's called a "Bivens" claim, named after the federal case creating a cause of action against federal officials for civil rights violations. The relief available is limited and presents great procedural obstacles. Still, anyone stopped and held for hours and searched should talk to a lawyer afterward.
On 3/17/17 16:47, Franklin Bynum wrote:
You can have a friend keep track of you in case you disappear for a few hours. You can also have an attorney standing by to file a federal habeas application in the nearest federal district court, but immigration officials will usually release you before the federal court has an opportunity to act.
Hi there!
As someone who is sent to secondary when entering the US 90% of the time, I can share a tip of how I make sure people are keeping track I don't disappear.
As soon as the airplane land I text 3 people (who already know I will be doing that) normally a friend, family member and a lawyer. They all know if I don't text again in around 3 hours, that they should start making noise and look for me.
You can't use your phone once you are out of the airplane and in the immigration area and not at all while you are in secondary. The longest I have stayed in secondary has been 3 hours (that is why I use the 3 hours mark). That is why I text them when the airplane land before I am even out of it.
have a safe travel everyone!
Isabela
isabela:
On 3/17/17 16:47, Franklin Bynum wrote:
You can have a friend keep track of you in case you disappear for a few hours. You can also have an attorney standing by to file a federal habeas application in the nearest federal district court, but immigration officials will usually release you before the federal court has an opportunity to act.
Hi there!
As someone who is sent to secondary when entering the US 90% of the time, I can share a tip of how I make sure people are keeping track I don't disappear.
As soon as the airplane land I text 3 people (who already know I will be doing that) normally a friend, family member and a lawyer. They all know if I don't text again in around 3 hours, that they should start making noise and look for me.
You can't use your phone once you are out of the airplane and in the immigration area and not at all while you are in secondary. The longest I have stayed in secondary has been 3 hours (that is why I use the 3 hours mark). That is why I text them when the airplane land before I am even out of it.
have a safe travel everyone!
Isabela
That is extremely good advice.
+1 --have a great meeting, everyone!
-Katie
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