Ismail B. Ajjawi, a Palestinian freshman admitted to Harvard College, arrived at Logan Airport in Boston last Friday, Lebanese passport and US student visa in hand.

But after Mr. Ajjawai complied with demands by US customs and immigration officers at the airport to unlock his cellphone and laptop, the officers read what his “friends” had posted on social media. Five hours later, after questioning Mr. Ajjawai about his religious beliefs and his friends’ political statements, the officers revoked Mr. Ajjawi’s visa on the spot, denied him entry to the US, and deported him back to Lebanon — at his own expense, of course, using the return ticket he was required to have before being allowed to board a flight to the US.

According to a report in the Harvard Crimson, which broke the story today:

“After the 5 hours ended, she called me into a room , and she started screaming at me. She said that she found people posting political points of view that oppose the US on my friend[s] list.” Ajjawi wrote that he told the officer he had not made any political posts and that he should not be held responsible for others’ posts. “I responded that I have no business with such posts and that I didn’t like, [s]hare or comment on them and told her that I shouldn’t be held responsible for what others post,” he wrote. “I have no single post on my timeline discussing politics.”

Harvard’s lawyers are working to get Mr. Ajjawi’s visa reinstated and get him admitted to the US. Most people turned away at US borders don’t have Harvard at their back, and are unlikely ever to be admitted to the US once they are branded as undesirable.

In a 2017 notice of intent to expand DHS surveillance of immigrants’ and visitors’ expressive activities on social media, the DHS claimed that “consular officers are directed not to request user passwords [and] not to violate or attempt to violate individual privacy settings or controls.” But that’s belied by what Mr. Ajjawi says happened to him at Logan Airport, according to the Crimson: “The … officer then asked him to unlock his phone and laptop, and left to search them for roughly five hours, Ajjawi alleges.”

It’s hard to imagine anyone from a place as politicized as Palestine (or Kashmir, or many other places) who doesn’t have any social-media “friends” who mention political opinions. The answer to social-media surveillance shouldn’t be that immigrants or visitors have to  try to isolate themselves from politics or ostracize their political associates.

Rather, the lessons reinforced by this incident are that:

1. Nothing good can come of consenting to any search by law enforcement officers, including searches of your digital devices. Border guards and customs and immigration officers are police, not your friends. Their job is to find reasons to suspect you or bar your entry. No matter how “innocent” you think you are, anything you or your “friends” say, or have ever said, can and will be used against you.
2. If government officials have access to social-media networks of “friends”, associations, and messages, they will use this information invidiously. The way to prevent misuse of information about how travelers exercise their First Amendment rights of expression and association is not to allow police access to this information in the first place. Just say no to requests for your passwords or data.

Following its most recent meeting on May 31, 2019, the Privacy and Civil Liberties Oversight Board (PCLOB) announced last week that “The Board has voted to conduct an oversight project related to the use of airline Passenger Name Records.”

We welcome this announcement by the PCLOB, and look forward to whatever opportunities may be presented to assist the PCLOB and its staff in this project.

Mass surveillance and permission-based predictive control of movement and travel, which in practice has relied on compelled identification of travelers and government access to PNR data (commercial airline reservations), was one of three issues we recommended as priorities for investigation by the PCLOB once enough members were appointed and confirmed for the Board to again have a quorum able to make decisions after a hiatus of several years.

PNR data is used to target searches and seizures and to make predictive decisions about who is, and who is not, “allowed” to exercise their right to travel by common carrier.

Government access to and use of PNR data needs to be recognized, and denounced, both as suspicionless, warrantless, and unconstitutional mass surveillance (through dragnet collection of personally identified travel metadata about the exercise of rights of freedom of movement and travel by common carrier) and as the most pervasive current program of unconstitutional predictive “pre-crime” control of the exercise of rights protected by the First Amendment (“the right of the people… peaceably to assemble”) and international human rights treaties.

The PCLOB is one of the most important advisory bodies within the Federal government. Although it lacks any enforcement power, the PCLOB has more autonomy and more ability to investigate and publicly criticize the practices of Federal agencies than agency “Privacy Officers” who serve at the pleasure of, take orders from, and whose public statements are subject to control by the heads of Federal agencies and by the President.

Members of the PCLOB are appointed by the President and confirmed by the Senate. Unlike most Federal advisory bodies, the PCLOB can set its own agenda and choose which issues to investigate. The PCLOB is considered an independent Federal agency. The PCLOB has the authority to review records of all Federal agencies, and to request that the Attorney General subpoena records held by third parties. But despite its name, the PCLOB has no “oversight” authority  other than the authority to issue reports that the President, Congress, Federal prosecutors, and Federal agencies are free to ignore.

Dr. Andreas Gal is the former CTO of the Mozilla Foundation, and the founder of a software company that was acquired by Apple Computer last year. He’s a naturalized US citizen and a frequent international business traveler.

Here’s part of Dr. Gal’s account  (in another part of which he links to some of our previous reporting on related issues) of what happened when he arrived at San Francisco International Airport after a trip to Europe last November:

I quickly found myself surrounded by three armed agents wearing bullet proof vests. They started to question me aggressively regarding my trip, my current employment, and my past work for Mozilla, a non-profit organization dedicated to open technology and online privacy.

The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop. This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.

Because I was uncertain about my legal responsibilities to my employer, I asked the agents if I could speak to my employer or an attorney before unlocking my devices. This request seemed to aggravate the customs officers. They informed me that I had no right to speak to an attorney at the border despite being a U.S. citizen, and threatened me that failure to immediately comply with their demand is a violation of federal criminal code 18 USC 111.

I declined to answer any further questions, and continued to ask to speak to an attorney instead. The interrogation and threats continued for some time, which I endured silently. Despite initial threats that they would keep my devices if I didn’t unlock them, I was eventually permitted to leave the customs area with my devices.

The ACLU of Northern California has complained to the Department of Homeland Security and its Customs and Border Protection component about the detention, search, and interrogation of Dr. Gal and the baseless threats of criminal prosecution made by CBP.

We share the concerns raised by the ACLU in their complaint on behalf of Dr. Gal.

But there are some additional aspects of this case worth noting:

1. The CBP agents were lying and making threats which they did not follow through on. When Dr. Gal persisted in not merely asserting but exercising his rights, the CBP agents allowed him to leave without being charged with any crime.  The takeaway is that law enforcement officers can and will  lie, that their goal is always to get you to “consent” to whatever they want to do or want you to do, and that you will never find out the actual limits of their legal authority unless you say no to any requests for consent.  In this case, Dr. Gal was allowed to leave with his electronic devices. His devices might have been kept longer by CBP, but if they had been, Dr. Dal would only have been able to contest their continued detention or any demand for him to unlock them or provide the passwords if he withheld his consent. If police ask you, “May I…?”, that means they know they need your permission. Just say, “No”.
2. There’s an additional law which Dr. Gal could have invoked, but of which he was probably unaware: the Privacy Protection Act,  Title 42 US Code, Section 2000aa. As a blogger and Twitterer, Dr. Gal is almost certainly protected by the Privacy Protection Act — as is anyone who posts publicly to social media. The Privacy Protection Act provides an important potential means of redress for searches and seizures of documents or electronic data at airports — but only if you know your rights and assert them when government agents threaten to violate them.
3. Dr. Gal’s account of what happened to him at SFO and the ACLU complaint letter address the likely basis for his detention and interrogation (as inferred from the questions he was asked about activities protected by the First Amendment). But they don’t address either the means by which he was targeted, or who was responsible. Given that Dr. Gal was surrounded by a special squad of armed goons before anyone had asked him any questions, he could only been targeted based on the data about him held by CBP, including records of his past and most recent travels (including mirror copies of airline reservations) and any TECS alerts set by law enforcement agencies. Records released by CBP in response to Privacy Act and FOIA requests by other travelers have shown how TECS alerts are used to target journalists and activists and trigger messages (based on ingestion of airline reservations) so that a “welcoming party” such as Dr. Gal can be waiting for them to search and question them and, in some cases, seize and image their electronic devices. We’ve assisted other travelers who have been able to use Privacy Act and FOIA requests for records of their travel to identify or get clues about when a TECS alert was set for them as a “person of interest”, by whom or by what agency, why, and with what handling instructions. Much information is always withheld, but clues sometimes get through.