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I crossed the border into the U.S. from Canada with my American wife in mid March. It seemed pretty normal, even given the extra paperwork we were doing: car import, dog import. I’m a green card holder and have gotten comfortable with the ease with which I’ve been able to cross the border. In the following days, though, there was news of people like me—permanent residents in the U.S., or resident alien as I was known when I first emigrated to the U.S. in the 1970s—being detained and deported. It has meant re-thinking the risk of leaving the country, in case I can’t return.
I have not reconsidered my move to the States despite recent events. This was a plan years in the making and not something that could be undone easily even if I wanted to. An immigrant visa of any kind, permanent or temporary, always carries some risk in any country. In the United States, the state security services responsible for immigration and border control have a 100-mile range of operation from the border. For my purposes, this is a zone that extends over about 2/3ds of southern Michigan, from Exit 108 past Battle Creek on I-94 and including cities like East Lansing or Toledo or Flint or Ann Arbor. Other security services can still stop you and ask you about your status, as these Canadian musicians found when driving through Ohio.
The state security services are themselves not aligned. Immigration enforcement is becoming a public relations issue for other parts of the security apparatus. Police departments are doing outreach to distinguish themselves. There is a concern that people will not call for help out of fear of who might show up. Just as with the detentions, it’s the uncertainty of what the law is now that creates a challenge for immigrants.
I lived within that zone for a good chunk of my life. It wasn’t until I lived in San Diego that I really understood how this border zone worked. Our eldest kid and I were driving out there, first when I was arriving in the city and then when we went out to the Salton Sea, and had to go through checkpoints. I’d never experienced that on the border at Michigan.
Keep It Clean
When I moved to Canada, I started doing regular presentations to lawyers about technology. This included, in 2007, discussing the USA PATRIOT Act, which had put a lot of fear in Canadian lawyers. What risk did they take when they crossed the US border with client data?
We talked a lot about traveling with clean devices. The Electronic Frontier Foundation has an excellent guide on preparing for border searches. To me, a clean device means taking a device that has no data on it when you arrive at the border. This seems more complicated than it is but most lawyers are not prepared to make the changes necessary. For one thing, you wouldn’t bring your primary phone to the border. It contains your contacts, your texts with clients, logged in credentials to your practice management tools and cloud storage for your case files and documents.
The same goes for your primary computer. A laptop can carry untold secrets that you would not want to divulge at the border. Anything that is governed by your professional obligations needs to be protected. Ideally, you would not bring a device with that information on it to the border. There is a procedure on searches that Customs and Border Patrol follows (§5.2.1), and that has a section on attorney-client privilege, but the lawyer must assert it and then submit to the process. This will take time, time that the lawyer may not have anticipated as part of their travel.
One of the benefits of the cloud is that you can leave your key information on remotely accessible servers. The device you carry does not need to have access to that data until you need it. One approach I discussed with lawyers was for them to travel with a Chromebook. It can be powerwashed after each use. That would mean that the device could be brought to the border clean, then, once across, the lawyer could log in and access email or documents via a web browser.
On the return (this is not just a U.S. issue), the device could be reset again after any client material was offloaded from the device. A Chromebook is also relatively inexpensive, so if it is taken by state security services, it isn’t a significant financial loss to a lawyer. If it’s not the lawyer’s primary computer, it should also not mean any interruption in that lawyer’s ability to provide ongoing services.
Risk Tolerance
Our house is for sale in Canada and, before it is sold, someone will need to return to it. There’s some tidying in the yard. There are some pieces of furniture that are being used for showing the house that then either need to be discarded or brought to the U.S. It won’t require a lot of work but it is something we need to do.
Normally, I would do it. I have more work flexibility and I can do a 9 hour drive without too much strain. But, in light of the U.S. immigration policy changes, should I risk it?
It seems like a lot of countries are asking this same question. It is so disorienting to watch countries flag the U.S. for travel risk. I’ve watched the State Department implement a Level 4 Travel Advisory on Russia, a country that has hollowed out its human rights. I take those travel advisories seriously.
It’s not at all clear to me what the risk increase is, other than the risk is now higher than it was. From 1% to 5%? More? Not that I would necessarily divulge it here, but I have not committed any crimes that would normally cause my visa to be cancelled. But that threshold doesn’t seem as clear any more. Where are we in relation to actual crimes being required and how far have we moved towards thought crimes?
If nothing else, I have decided to take my own advice while we wait and see how this all percolates out. It’s only been a week or so and there may be more clarity—whether from seeing more cases or seeing more legal challenges—on how much the risk has grown. I’m inclined to think the risk remains pretty low for me but it can’t hurt to take some precautions.
There is now an interactive but incomplete “United States Disappeared Tracker” which brings home how many people have now been detained. Most were Venezuelans who were flown out of the country but even after the courts became involved, arrests continue. The US government has indicated at least 300 visas have been cancelled.
Unlike previous trips, I won’t be traveling with a phone any longer. I have taken an old phone (I always keep my last one) and did a factory reset. When I logged in again, I created a burner account so that I can get software updates. But I have not logged into any of my personal accounts. I can do that once I’m across the border and then factory reset again before I reach the border.
This will limit what I can do to wi-fi enabled activities and a limited number of apps. No phone calls since I’ll have no SIM. But I use a password manager. I use multi-factor authentication. None of that is easy to replicate on a clean device and, frankly, I would be worried about leaving a remnant of a password file on a device, no matter how clean I think it is. I have switched to a password manager that I can access remotely, so even if I can’t access 2FA protected accounts, I can still get into some of my resources.
It is a device that I could do without if, for some reason, it had to be investigated or even retained by the state security services. Having this option makes the risk feel a bit more manageable. I do not want to refuse access to a device and risk my visa. I can feel comfortable giving up the PIN to access the phone and not worry about what they are able to access. I’ll leave all of my other technology (tablet, camera, primary phone) behind in the U.S. and, in theory, subject to Fourth Amendment protections that disappear at the border.
I’ve also started to wipe out social media profiles that I no longer use. The US government has indicated they’ll be collecting more social media on immigrants now. Did I say something that the state security services no longer would tolerate, like this scientist or these musicians? During my brother’s detention by Russia, I said some things that I’m sure weren’t supportive of the government. Are they enough to exclude me at the border? I don’t know. If there are services I’m not using any more, now is as good a time to delete them as any.
Most of the time I feel like I’m over-reacting. Then I hear from a family member that their friends asked about my cross border travel and were worried for me. It’s the uncertainty that gets you, isn’t it. I will look forward to making one last trip and then being able to hunker down for awhile.