Once upon a time, the Fourth Amendment to the Constitution made it unarguably clear how the government and subsequent police entities were expected to conduct “searches and seizures” of our personal effects. It reads:
But the framers of our most esteemed document could in no way have predicted an internet age or imagined the power of something as ubiquitous as the smart phone or Facebook. With so much business conducted online, from social media, pictures, video, email, texts, and general internet activity, we no longer leave the paper trails the Constitution protects.
So what if you’re returning home from abroad and a U.S. customs or border security official asks to access your cell phone? Do you consent? Does he or she even have the right to ask for access? For what exactly might the officer be looking, and is he or she required to first produce a warrant, as is delineated in the Fourth Amendment? In this hyper-surveillance culture, it’s important to know where we stand.
According to a piece in Truthout, border security officials have authority to search within 100 air miles inland from any external U.S. boundary. In other words, border agents can detain and question people at checkpoints miles from U.S. borders. They can also stop motorists suspected of crimes as part of “roving” border security patrol operations. Fourth Amendment protections aren’t as strong when one arrives in the country through international airport terminals, other entry ports, or locations within 100 air miles of an external U.S. boundary.
According to federal statutes, regulations and court decisions, Customs and Border Patrol (CBP) officers have the authority to conduct warrantless inspections of anyone trying to enter the country. This includes belongings. CBP can also question individuals about citizenship or immigration status and order documents that attest to someone’s right to enter the country.
CBP has the authority to cursorily examine:
“computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.”
According to CBP policy, a supervisor must be present during these searches, and searches are to be conducted before the person being questioned “unless there are national security, law enforcement, or other operational considerations” that take priority. This can be legally done “with or without” suspicion that the person who possesses the items is involved in a crime.
There are limits to CBP’s search authority, however. A 2013 U.S. Court of Appeals decision states that although cursory searches of electronic devices without suspicion of crime are permitted, “forensic examination” of devices, such as using “computer software to analyze a hard drive,” requires more than a hunch. Border security officials must have “reasonable suspicion” of criminal activity as these more intrusive, thorough searches could provide access to deleted files and search histories, password-protected and private information.
The court’s decision states:
“Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives. It is little comfort to assume that the government — for now — does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome.”
You may have read recent suggestions about locking devices with passwords. This is wise in a time of internet privacy and security breaches. If detained by CBP, you may be asked to unlock your phone for inspection. Some CBP officials have even demanded Facebook passwords to review travelers’ social media activity.
Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, says:
“Until it becomes clear that it’s illegal to do that, they’re going to continue to ask.”
This is possibly a Fifth Amendment matter. That provision in the Constitution states no one is required to be “a witness against himself” in a criminal case. Lower courts, however, have delivered various decisions regarding how this applies to handing over electronic device passwords.
Nathan Wessler, a staff attorney with the ACLU’s Speech, Privacy and Technology Project, says:
“People need to think about their own risks when they are deciding what to do. US citizens may be comfortable doing things that non-citizens aren’t, because of how CBP may react.”
So, does this mean we are at CBP’s tender mercies? Is there nothing we can do? Although not ideal–and perhaps laws will be less vague in the near future–there are some precautions we can take. First, consider taking along only devices you actually need. Despite officials having the dubious authority to ask you to unlock your phone–and possibly detain you longer–a strong password and encryption is still advisable in protecting data. A third option is to leave devices behind and carry a “travel-only” phone devoid of personal information, such as a disposable phone. This, though, also invites suspicion. According to Sophia Cope, a staff attorney at the Electronic Frontier Foundation (EFF):
“We also flag the reality that if you go to extreme measures to protect your data at the border, that itself may raise suspicion with border agents. It’s so hard to tell what a single border agent is going to do.”
A guide from EFF about data protection options is here.
Border and Customs officials hold enormous power, and that’s not necessarily bad. We can only expect to be confronted by respectful, empathetic professionals who view their jobs as a vital part of keeping our country safe and not as a opportunity to exert undo influence over people’s vulnerabilities. Knowing what to expect is important, though, as laws change to accommodate the times.
Featured image from YouTube video.