Customs officers are ordering some returning travelers to unlock their phones for data searches.(Image: Jim Glab)
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 ACLU is challenging CBP’s right to search phones without a warrant. (Image: Customs & Border Protection)
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.
Read more about this issue in this Pro-Publica report & Artnet
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?
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Spot on.
Were they to push this issue with me, I’d simply enter the password wrong 10 times. After I called my lawyer.
But if the detention was lawful and legal, then you’d have no case. And border and customs agents can detain you while they investigate further. If you don’t believe me, try walking straight through border control and customs without stopping – you’ll be looking down the barrel of a gun. Airports are the one place you really really do not want to play mister tough guy.
Yes, you cannot be denied eventual entry if you are a US citizen. There are some exceptions for naturalized aliens as their naturalization can be revoked under certain circumstances.
However, the fact that you will eventually be re-admitted into the US doesn’t mean you have some kind of immunity from prosecution or detention. So if for instance you are smuggling contraband into the US, you will be detained, searched, fined and have your contraband confiscated. If it is serious enough you will be transferred to a federal facility pending bail and arraignment.
Border and Customs officers have very broad powers and can certainly detain you temporarily for probably cause. Hiding a phone and refusing to co-operate would be probable cause.
But then they may cart you off from the airport to a US jail.
You can hide or encrypt stuff on your computer. But I don’t believe that’s a good thing to do. Then they really will get suspicious on what you have to hide.
I don’t lock my phone. I don’t subscribe to an internet cloud.
Then you can sue them for false imprisonment.
“There’s a risk you could be held, detained” Which would constitute false imprisonment, unlawful arrest, etc.
Exactly. They don’t need probable cause or a warrant if you give them permission to search it.
That’s what’s so great about the iphone. IT can be locked, completely wiped, etc.. remotely using icloud.
They can’t block a U.S. citizen from entering the USA if he or she refuses to hand over his or her phone.
Can do a complete wipe of the phone before going through TSA and then restore it from the cloud when on the other side of the border or back at home from the airport.
When I travel overseas, I don’t bring my cell phone and, if I *have* to bring a computer, I run a VM on it that disappears when the machine is shut down.
Remember that allowing them to “inspect” your phone (particularly if it’s not done in front of you), means that they could
1) make a copy of your entire phone contents for perusal at a later date
2) read all your emails if you have personal/work email accounts hooked to your phone
3) install tracking software on your phone, or install a root-kit
4) an overzealous or malicious person could even steal your identity or money from your bank. e.g. go into your email, find out what bank you use, go to your bank website, click ‘forgot password’, which usually sends a recovery link to your email, giving them full access. Many other services use SMS verification codes to your phone, which they now control.
So, allowing an agent access to your unlocked phone isn’t just allowing a ‘quick-peek’, it’s potentially handing over the keys to your entire digital life.
Hard to say that you have nothing to hide when you don’t know what they are looking for though or how they are going to bastardize something you said or take some piece of data completely out of context.
Given the amount of data on any smart phone and that amount of it that is incidental (e.g. you’ve likely got all kinds of stuff in cache, including stuff you didn’t directly ask for) that someone that is just looking to mess you up could take some bit out of the original context and now you’re in trouble.
The irony is, I seriously doubt these officers have computer forensics training, meaning anyone with a good OPSEC plan could go undetected.
Stop calling people “snowflake”. It really is stupid.
FYI. This authority was also under the Obama watch so educate yourself before making a stupid argument snowflake.
I’ll bet they have a willing Judge on speed-dial.
What do you do when you have conflicting law? CBP has the right to inspect and the passenger the right to privacy.
Under the CBP’s own written policies, a more invasive search like a body cavity search requires them to obtain a warrant.
Under their own stated policies, which may or may not be constitutional, they assert they have the power to seize a device for five days for inspection. But getting someone to potentially violate their Fifth Amendment rights by coughing up their passcode isn’t a power even they claim to lawfully possess. They can ask for it, of course, but law enforcement can ask for a lot of things you’re not actually obligated to give them or do for them.
Big tough guy on the internet; a pussy cat in front of authority, I suspect
Nah, I don’t sell my liberties so cheaply. But, like sheep following the herd, you do you buddy.
It would be interesting to find out what airline Mr. Gach arrived at SFO on. According to Mr. Gach statement in artnet news he was traveling from Belgium, and to the best of my knowledge there are no non-stop SFO-BRU flights. The article “Why Was Aaron Gach Detained?” in the publication that I named earlier, some hints were dropped why he might have been single out by DHS. The sad truth is that this could happen to any one of us.
In the spirit of free-wheeling discussion, without disrepect to anyone, I get frustrated by the attitudes of “it’s the law and we should follow it”, “I have nothing to hide so why not”, “worse things happen in other places”, “they are just doing their job”, and the like.
I read/hear these sorts of comments related to so many events concerning government agencies and their (deputized?) corporate partners. Wasn’t it just a couple of weeks ago that the United/Dao incident resulted in many insisting that he should have obeyed the law.
Perhaps it is that I am of a generation that recognized the responsibility we as citizens have to make our government, its policies, and its employees conform to the vision we have of the “good society”.
I have taught my kids “Don’t worry about how much higher you are than anyone else on the ladder, strive instead to climb higher, and try never ever to step down.”
I applaud the ACLU for taking the lead on this, and Chris for showing the courage to dedicate an update solely to this news.
Thanks to the other posters, irrespective of their position on this matter, for making the effort to not remain silent.
Legally, U.S. Customs (now CBP) as always been allowed to inspect property without the restrictions imposed elsewhere on U.S. law enforcement. For example, it need not obtain a warrant from a court by showing that it has compelling reason to do so.
Because after a long international flight, I am probably tired and hungry and just want to get home and have a shower, I would probably consent to the search as I have nothing to hide (if they want to see my achievements on Plants vs. Zombies let ’em), but I would be exceedingly angry about it, would indicate that I was not happy, and I would lodge a very strong complaint after it happened to anyone and every entity I could: CBP, my member of Congress, the Airport authority, maybe the local media.
We should expunge the line “land of the free” from our National Anthem.
And CBP officers should refuse to engage in gestapo-like tactics.
Hum, yes they can deny us citizens entry
They’d put you in a cell for a few hours and you’d soon be less high and mighty
They search you and your bags and, if it turns out that you lied, then you get the full treatment including cavity searches
It bothers me that CBP is doing this but then again I cross the border four times a year in a small airplane. The most intrusive thing they’ve ever done is ask me to open a rifle case,. They always go over the outside of the plane with a geiger counter.
I have nothing to hide since I’m now retired, but I think a search would turn up some information about what CBP is and is not allowed to do. Just make sure you know your rights and if necessary, have a copy of the policy with you to show the agent. And then if they become a pain, take their name and deal with them after you’ve exited the customs area.
what happens when you say “I don’t have a cell phone”?
Nope haven’t heard anyone.
I’ll refuse; they can’t deny us citizen’s entry. I’d rather miss my connection than have someone read my texts.