Imagine returning to the U.S. from a long trip and having a customs agent demand your mobile phone password so he or she can inspect its contents. Sounds appalling, but it’s happening these days…
Anecdotal reports suggest that U.S. Customs & Border Protection is becoming more adamant about examining the cell phones of some arriving travelers – including U.S. citizens – and now the American Civil Liberties Union is challenging that practice. In April NPR reported that in 2016, “the number of people asked to hand over their cell phones and passwords by Customs and Border Protection agents increased almost threefold over the year before.”
The ACLU has taken up the case of a U.S. artist named Aaron Gach, who returned to the U.S. at San Francisco International from an exhibition in Europe, and was pulled aside by CBP officers and ordered to unlock his iPhone for a search of its contents. Gach resisted, but finally gave in when he was told that if he didn’t, CBP would keep his phone for an indefinite period.
Gach asked that the CBP officers conduct their search of his phone in his presence, but they refused and searched it in a private area.
The ACLU filed a formal complaint this week with CBP and Homeland Security officials, challenging the agencies’ right to examine phone data without a warrant.
“Even at the border, the search of an electronic device is governed by the Fourth Amendment,” the ACLU wrote. (The Fourth Amendment protects citizens against unlawful searches and seizures.) “…Any such search should be based on a warrant or, at a minimum, probable cause, and be limited in scope to that information relevant to the agency’s legitimate purpose in conducting the search. However, as the unconstitutional search of Mr. Gach’s phone illustrates, CBP’s policies do not in fact include the requirements necessary to guarantee the constitutionality of a device search.”
The organization noted that the Supreme Court has already held that “a search of an electronic device constitutes a significant intrusion on an individual’s Fourth Amendment privacy interest, and held that searching an electronic device required a warrant even when the search was conducted incident to a lawful arrest. This same principle applies at the border,” ACLU argued.
What’s more, the organization said that CBP itself had issued a directive to its officers that any search of an individual’s phone must be conducted in the person’s presence.
The search also likely violated Gach’s First Amendment rights, the ACLU said: “Given the dearth of rules limiting CBP officers’ discretion to inspect and read information contained on or accessible from electronic devices, travelers such as Mr. Gach may justifiably choose not to use their phone to communicate about controversial issues, take photos of artistic works, or maintain a list of professional contacts. In other words, the mere prospect that CBP officers may read information available on digital devices exerts a significant chilling effect on the expression of First Amendment rights.”
The ACLU has become much more active in trying to protect the rights of travelers during the Trump era. It was the ACLU that led the challenge to the Administration’s initial order barring travelers from certain Muslim-majority countries. That order, and a revised version, were blocked by the courts.
Readers: Have you or anyone you know had their phone searched by CBP officers during re-entry to the U.S.? How would you respond if you are ordered to unlock your phone?