US device searches at borders ignite resistance

Customs and Border Protections searches of smartphones and laptops have ballooned in the past two years, although only a small minority of travelers are affected

Aaron Gach wasn't expecting U.S. Customs and Border Protection agents to demand to search his smartphone when he returned to San Fransisco from Belgium in February.

The artist and magician, a U.S. citizen, had just attended an art event near Brussels and was targeted for advanced screening by CBP after his flight landed in the U.S. During a series of questions from CBP agents ("Did you pack your bag yourself?"), they repeatedly asked to search his smartphone, Gach said.

"Do you understand that if you choose not to unlock your phone we may need to detain your other personal effects?" one agent told him, according to a description of the encounter that Gach posted online.

Gach, who travels frequently, was shocked and surprised by the demand to search his device, he said in an interview. He initially resisted, saying a search would violate his privacy, but eventually relented by unlocking his phone for the agents, who then took the phone out of his sight for about 10 minutes.

Gach, working with the American Civil Liberties Union to protest the search, "felt pretty coerced" into turning over the phone, he said. "On the whole, I find that situation pretty upsetting."

Why resist the search? The Fourth Amendment of the U.S. Constitution, protecting residents against unreasonable searches and seizures is "pretty clear," he said. 

"Either you have rights, or you don’t have rights," Gach added. "Standing up for your rights is not an admission of guilt or innocence."

Gach's position is echoed by digital rights groups like the ACLU and the Electronic Frontier Foundation. Under current guidelines, CBP can search a device without "any suspicion" of a crime and with no court-ordered warrant, said Esha Bhandari, a staff attorney with the ACLU Speech, Privacy, and Technology Project.

"We think that's a Fourth Amendment violation," she said. "They can essentially conduct these searches in a suspicionless manner for no reason at all."

But CBP and the U.S. Supreme Court see fewer Fourth Amendment protections for people, including U.S. citizens, when they're crossing into the country. As the EFF notes, the Supreme Court allows for a "border search exception" to normal search warrant requirements because the government has an interest in protecting the "integrity of the border" by enforcing immigration and customs laws. 

CBP defends the device searches, saying the agency inspects the electronic devices of a tiny percentage of people coming into the U.S. every year. The device searches are just one piece of information the CBP uses to evaluate travelers, a CBP spokeswoman said.

"Keeping America safe and enforcing our nation's laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S.," the spokeswoman said by email. "CBP's electronic searches affect less than one hundredth of one percent of travelers."

Device searches often help to show travelers' intentions while they're in the U.S., she added. The searches "are critical to the detection of evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography," she said.

While CBP searches the devices of far less than 1 percent of travelers crossing the U.S. border, the number of searches has ballooned in the last two years.

In CBP's fiscal year 2015, the agency searched just 8,503 devices during 383.2 million border crossings. But in fiscal year 2016, the number of device searches jumped to 19,033, and in the first six months of FY2017, CBP searched 14,993 devices, putting the agency on pace to search nearly 30,000 devices during the year.

Separately, the U.S. Department of Homeland Security has talked about demanding social media passwords as part of President Donald Trump's plan for advanced security checks for visa applicants from some Muslim-majority countries. The Department of State is also considering a plan to ask some visa applicants for the social media user names, email addresses, and phone numbers (although not for social media passwords) that they've used for the past five years.

Some U.S. lawmakers have questioned the CBP's device searches. In April, a bipartisan group of four lawmakers introduced the Protecting Data at the Border Act, which would require the agency to get a court-ordered warrant to search the electronic devices of U.S. citizens and legal residents like green-card holders.

It's unclear, however, how a warrant process would work with travelers exiting an airplane or crossing the U.S. border in an automobile. But U.S. residents shouldn't give up their privacy when crossing the border, the sponsors said.

"Americans' Constitutional rights shouldn’t disappear at the border," said Senator Ron Wyden, an Oregon Democrat and sponsor of the bill. "By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data."

Gach, the artist whose smartphone was searched in February, supports legislation that would require a search warrant. "Right now, there’s just sort of a blanket authorization, and you have no idea what exactly they’re searching," he said.

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