This post was originally published by the Asian Law Caucus and is based on documents obtained and analyzed by ALC. All references to “we” and “our” refer to ALC.
The routine is familiar. Your international flight lands in the United States. You are finally home. You grab your luggage and proceed through customs. “Where did you travel? Was it business or pleasure? Welcome home.” For the vast majority of travelers, that’s it. But over 5 million air travelers a year are sent to a “secondary inspection” where an officer may ask detailed questions about their travels and perform a thorough search of their bags.
We regularly advise the community that U.S. citizens have an absolute right to enter the United States. That means a customs officer must let U.S. citizens into the country once they have declared the goods they are carrying and the countries they have visited. During a secondary inspection, however, customs officers might ask intrusive questions about the people you saw abroad, the places you went, information about your relatives and their livelihoods, your life in the United States, or your religious and political views and associations. U.S. citizens are not obligated to answer such non-routine questions to enter to the United States. Aside from proving you are a U.S. citizen and filing a customs declaration with information about the countries you visited, you are not obligated to answer detailed questions about the things you did and the people you saw abroad. (For legal permanent residents and other non-citizens, the situation is more complicated and we recommend consulting an immigration attorney for personalized advice before traveling.)
When a secondary inspection veers away from routine questioning, customs officers are no longer investigating whether you and the contents of your luggage may lawfully enter the country. Instead, they could be conducting an open-ended intelligence-gathering operation. At that point, we recommend U.S. citizens politely assert their right to consult an attorney before answering any questions—the same way you should react if an FBI agent knocks on your door asking to speak with you. If you eventually decide to answer questions from law enforcement, it should be on your terms and with an attorney present to protect your interests.
Many people choose not to speak to an FBI agent without an attorney’s advice if they are visited at home or at work. The government, however, may be doing an end-run around that choice by confronting people at the border when they may feel most vulnerable. We recently obtained government documents proving that a customs officer conducting a secondary inspection might be working at an FBI agent’s behest—and the officer’s detailed notes about your personal life and reading habits may end up in an FBI intelligence file.
Several years ago one of our clients asked for help obtaining a copy of his FBI file under the Freedom of Information Act. He wanted to know why FBI agents kept contacting him to ask questions about the Muslim community in San Francisco. A few years after filing the request, the FBI finally released some records to the client, who has given us permission to publish some of the information to raise public awareness.
Here are some examples of the kind of information that ended up in our client’s FBI file after secondary inspection at San Francisco International Airport:
- Detailed information about the books in his bags, including descriptions of the authors based on information the customs officer apparently found on the Internet
- The name of the mosque he attends in the United States
- That his wife was 3 months pregnant and her address in a European country
- His employer’s name and information about his annual salary
- His plans to buy land in his country of origin
- Information about who he saw abroad, including details like how long they met for coffee and what they did together
- His roommates in the United States and their jobs, including information about the primary renter on the lease
- His educational aspirations and information about financial difficulty leading him to look for cheaper rent
- Notes from his passport, including information about his travel history
- His debit card number, found in his wallet
- His bank account number, taken from a check found in his luggage
Courts have held that customs officers have the right to search all your belongings when you enter the United States, whether or not you are a U.S. citizen. But it’s another thing to see detailed notes about the contents of your luggage in an FBI file, especially when there is nothing remotely criminal about them or your activities.
In our client’s case, the results are clearly intrusive. That you and your wife may be expecting a child is certainly none of the FBI’s business. And neither are your reading habits. The customs officer took meticulous notes about the books in our client’s baggage, commenting that they “related to Salafist ideology” and noting one author “has come out and condemned the United States as an infidel country.” These conclusions were apparently based on the officer’s “open source internet checks”—in other words, something like a Google search. All that information—based on error-prone Internet research—ended up in our client’s FBI file, which now includes potentially prejudicial information. What is not mentioned in the FBI file is that books by the same authors found in our client’s bags can also be found in the library at UC Berkeley and Stanford University—and, of course, that most people consider reading to be a form of education, not criminal activity.
When innocuous information about your intimate family life and your constitutionally-protected reading activities ends up in an FBI file, where it is open to mis-use or mis-interpretation, the importance of knowing your rights and exercising them becomes all the more clear. Exercising your right to counsel and your right to remain silent may not only protect your privacy, but also the privacy of your friends, family, and others. Had our client exercised his right to limit the scope of conversation or to request an attorney, the statements he made during the interview would not have ended up in law enforcement intelligence files.
Another important reason to exercise your rights and to limit the scope of conversation with law enforcement officers is that knowingly making a false statement to a federal law enforcement officer may be a felony. Think about how detailed our client’s customs interview became. It is not hard to see how an exhausted traveler might forget some details about a trip, including who they saw, how long, the name of a landmark they visited, and other information. Such mistakes might be construed as intentional misrepresentations and have the potential to lead to criminal charges. That possibility can be avoided by continuing a conversation only with the help of an attorney.
For more information, consult an FBI Know Your Rights pamphlet jointly published with CAIR-SF Bay Area and the ACLU of Northern California, or contact us to schedule a Know Your Rights presentation in your community.