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Call to UN to sort out travellers’ privacy issues

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letter, violation of rights, border searches, passcodes accessed, US border, letter to UN, IOMQuestioning and accessing passcodes violate United States’ human rights treaty obligations.

In a joint letter sent to High Commissioner for Human Rights Zeid Ra’ad Al Hussein, the High Commissioner for Refugees Filippo Grandi, William Lacy Swing, Director General of the International Organization for Migration (IOM), and several UN experts, a group of organisations have urged these authorities to investigate reports that the United States is demanding that visitors provide access to their electronic devices and passcodes to those devices and online accounts.

These practices persist in violation of the United States’ human rights treaty obligations, and action is needed to hold the US government accountable for the protection of human rights at US borders, which are not zones of exclusion or exception.

The signatories have asked the UN authorities to raise the issues communicated in this letter with the US government, in particular that it is failing to conform with its commitments to protect human rights by demanding access to electronic devices and social media accounts as a prerequisite for entry into the country.

The signatories also request that an inquiry be conducted to more comprehensively investigate these alarming incidents and policies, as well as a country visit to the US to observe and monitor the procedures at the border controls, to serve as the basis for that inquiry.

The letter runs:

Dear Commissioner Zeid Ra’ad Al Hussein, Commissioner Filippo Grandi​, Director General Amb. William Lacy Swing, and UN Experts,

We write to urge you to investigate reports that the United States is demanding visitors provide access to their electronic devices as well as passcodes to those devices and online accounts.

These practices persist in violation of the United States human rights treaty obligations and your action is needed to hold the government accountable for the protection of human rights at US borders, which are not zones of exclusion or exception.

The digital devices most people carry in their pockets or bags grant access to our social media accounts and contain a dizzying array of personal information.

Today, these devices multi-task as our primary means of voice and text communication, our cameras, fitness trackers, sleep monitors, banking portals, home shopping networks, and the source of the answers for any questions that may come up in casual conversation.

Despite, or possibly because of this, recent reports from media and civil society organizations detail incidents of US border agents demanding access to devices and social media accounts, harassing, or even denying entrance to individuals based, presumably, on the content found on those devices.

The Council on American-Islamic Relations (CAIR) Florida filed 10 complaints with the US Customs & Border Protection Agency (CBP), the Department of Homeland Security (DHS), and the Department of Justice (DOJ), “reporting the systematic targeting of American-Muslim citizens for enhanced screening by CBP,” including through “increased scrutiny of American-Muslim’s social media accounts and contents of their mobile phones along with invasive questions regarding their religious beliefs and political opinions about American Citizens.”

Authorities also have the capacity to install malware or other remote access software that would allow the continual monitoring of personal content. They should provide assurances that they are not doing so without explicit and individualized judicial authorization and close oversight.

Rather than an anomaly, these reports exemplify a trend toward US border enforcement without regard for human rights. In 2016, US Customs and Border Protection (CBP) within the Department of Homeland Security added a field for “social media identifiers” to certain immigration documents. The field was presumptively voluntary, but there was no indication that it would be marked as such.

Thousands wrote to CBP to explain that the broad collection of travelers’ so-called public information, including social media posts, interferes with the human right to privacy and chills the freedoms of opinion, expression, and association.

The collection went into effect despite the considerable opposition.

The actions at the border and beyond under the current administration have become only more heavy handed.

The Trump Administration has, in three weeks, targeted persons based on their national origin, religion, and ethnicity.

For example, an Executive Order issued on January 27 and criticized by several Special Rapporteurs infamously prohibited the entry by residents of seven Muslim-majority countries and allowed for the prioritization of refugees on the basis of religion.

Numerous reports indicated CBP agents were demanding access to travelers’ social media and electronic devices in enforcing the Executive Order.

Now the threat is that these more invasive practices will be institutionalized and expanded.

On Tuesday February 7, 2017, the Secretary for the US Department of Homeland Security, General John Kelly, said of people seeking visas to travel to the US, “[w]e want to get on their social media, with passwords: What do you do, what do you say? If they don’t want to cooperate then you don’t come in.”

It is a violation of human rights to obtain at the border or elsewhere, by force or coercion, suspicionless access to a person’s digital life, including the fundamental rights to privacy, the freedom of opinion, expression, religion, belief, movement, and association, and the right to freedom of the press.

Moreover, the selective enforcement of data collection requirements to target journalists, Muslims, and migrants at the border is particularly offensive, and violates the principle of non-discrimination and right to equal protection found in many international instruments, including the 1951 Refugee Convention.

States have the obligation to respect, promote and fulfill human rights wherever they exercise jurisdiction or effective control, including where they exercise authority or control extraterritorially.

The UN has stated that human rights apply online as they do offline, which holds true at borders as elsewhere.

The US has signed and ratified the International Covenant on Civil and Political Rights, which protects free flow of “information and ideas of all kinds, regardless of frontiers.”

As the OHCHR Recommended Principles and Guidelines on Human Rights at International Borders outline, border policies should be guided by the primacy of human rights, non-discrimination, and assistance and protection from harm.

Specifically, the right to privacy must be protected in border screening processes, and personal property, including mobile phones, “should only be confiscated by border authorities when duly authorized by law and in accordance with international human rights standards in clearly defined, limited circumstances.”

The incidents outlined in this letter indicate consistent and flagrant disregard for international norms.

Border controls unleashed without adherence to the rule of law restrict freedom of movement and further imperil marginalized and vulnerable communities seeking safety, family reunification, and economic opportunity.

Exposing individuals’ electronic devices and online accounts — containing their contact lists, sensitive communications, financial and health data, location histories, photos, prayers, and more — threatens not only individuals and families but entire communities, and deters travelers and migrants from enjoying the benefits of science and technology.

We ask that you raise the issues communicated in this letter with the US government, in particular that it is failing to conform with its commitments to protect human rights by demanding access to electronic devices and social media accounts as a prerequisite to entry into the country.

We also request that you conduct an inquiry to more comprehensively investigate these alarming incidents and policies. Finally we urge you to request a country visit to the US to observe and monitor the procedures at the border controls to serve as the basis for the inquiry.

These outrageous and invasive controls must not become the norm.

Yours sincerely,

Access Now; Advocacy for Principled Action in Government; American Civil Liberties Union; The American Society of Journalists and Authors; Asian Americans Advancing Justice | AAJC; Asian Americans Advancing Justice – Asian Law Caucus; Asian Americans Advancing Justice – LA; Association for Progressive Communications; Bill of Rights Defense Committee/ Defending Dissent Foundation; Brennan Center for Justice at NYU School of Law; CAIR-MN Center for Constitutional Rights; The Constitution Project; Council on American-Islamic Relations (CAIR); Cyber Privacy Project; Free Speech Coalition; Muslim Justice League; National Hispanic Media Coalition; National Coalition to Protect Civil Freedoms; National Immigration Law Center; National Immigration Project of the NLG; National Iranian American Council; National Network for Arab American Communities; PEN America; Restore The Fourth; and T’ruah: The Rabbinic Call for Human Rights.

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