Digital Privacy at the U.S. Border

The Customs and Border Patrol (CBP) agency as the authority to inspect and confiscate electronic devices of any traveler entering the United States, including that of Unite States citizens.  The government has asserted a broad authority to inspect an individual’s electronic devices, including cell phones, laptops, and e-Readers.  This sometimes leads to CBP officials to request that a person provide their personal device PIN numbers and/or passwords, however, they do not need the person’s consent to view the contents of the device or confiscate (detain) it.  If CBP asserts a reasonable suspicion they may detain your personal property for further inspection.  Even if a person were to refuse to unlock their device, CBP can detain the device, and potentially have the contents of the device searched and copied.  This is particularly concerning for people who have very personal items on their devices and/or sensitive work information.  For example, I had a potential client who is a music producer, and much of his work is kept on his laptop, much of which is not just his own music, but also that of his clients that he is producing.  CBPs ability to detain, and/or copy the contents of such a device seemingly violates the privacy rights of my client, and potentially that of his clients.  Others, such as journalists, and lawyers, or anyone in positions that require them to carry sensitive or confidential information on their devices, could potentially be subject to their devices being searched and/or detained.

CBP has the statutory authority to “inspect and examine all individuals and merchandise entering or departing the United States, including all types of personal property such as electronic devices.”  This search of electronic devices is in order to determine the devices admissibility in to the United States and that it does not contain contraband (such as child pornography), information indicating inadmissibility, or information that could present a threat to national security (such as terrorism).  The Supreme Court has found that CBP does have the authority to conduct such searches at the border, and that the Fourth Amendment warrant and probable cause requirements do not apply.  (See United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004)).  However, this is in conflict with the Supreme Court’s decision in 2014, where they unanimously recognized 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. (See Riley v. California, 134 S. Ct. 2473 (2014)).  In other words, the search must, at the very least, be accompanied by some reasonable suspicion or probable cause.  It can also be argued that your personal devices can access cloud-based data but the information does not travel across the border like contraband, and therefore should not be subject to search by CBP at the border.

From Octobers 2008 to June 2010, there were over 6,500 people, over half of which, who had their electronic devices searched at the border according to government data the ACLU received through a Freedom of Information Act request.  Over the past couple of years, these searches have dramatically increased. In all of 2015, there were only 4,764 searches.  However, in 2016, there were 23,877, and so far in the first six months of 2017, there have been 14,993 arriving international travelers subjected to their electronic devices being searched.  The government argues that this happens to a very small percentage of travelers that enter the country everyday, however, there has been such a huge increase in the use of the authority that it is affecting more and more U.S. citizens with no probable cause for suspicion, and is of concern when the government detains devices for “further inspection.”  In fact, a person themselves can be detained and held for an indefinite amount of time for refusing to provide a password or unlock their device though they can not be refused admittance to the U.S. Adam Gach, a U.S. citizen, artist, and professor at California College of the Arts, was detained and forced to unlock his device.  CBP also interrogated him about his artwork, where he had travelled, how often he traveled, and about his contacts, all with no probable cause or reasonable suspicion of any crime having been committed, or that they suspected him of not being admissible to the United States.

The CBP made statement in response to questions by Senator Ron Wyden (see Wyden Letter link below) who is cosponsoring a bipartisan bill intended to protect Americans privacy rights from suspicionless and indiscriminate searches of their electronic devices. (Sponsors include: Senator Rand Paul, Representatives Jared Polis, and Blake Farenthold).  Senator Rand Paul stated “…innovation does not render the Fourth Amendment obsolete.  Americans should not be asked to surrender their rights or privacy at the border, and our bill will put an end to the government’s intrusive practices.”  Representative Polis stated, “The government should have the right to access your personal electronic devices without probable cause.  Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location.”  Representative Farenthold stated, “Just because you cross the border doesn’t mean the government has a right to everything on your computer.”

The ACLU has been active in challenging the government in these cases, and provided some precautions that you can take prior to traveling overseas.  These precautions include traveling with as little data and devices as possible; encrypting devices with strong and unique passwords; shutting down the devices when crossing the border; storing sensitive data in a secure cloud-storage account; uploading sensitive photos to a cloud-storage account; turning your phone on airplane mode before crossing a border checkpoint.; and as always, you have the right to ask for a lawyer.  The Customs and Border Patrol agency stated in June 2017 that its policy regarding searches and accessing electronic devices does not permit searches of cloud-storage data that is accessible from your electronic devices through the Internet.  Therefore, some of these precautions will help ensure that the government holds to that policy.  You do have the right to challenge and petition the government for the return of your electronic devices, especially if you get a notice that the government intends on keeping your property.  A petition is a written means of either remitting or mitigating any charged penalty, liquidating damages, or requesting that your property be returned.  If you receive a notice of seizure from the government, you can also file a claim with the agency that gave the notice to contest the seizure of your property.  Hopefully, the bipartisan bill discussed above will get passed to prevent further violations of U.S. citizen’s Fourth Amendment rights.

 

Resources:

Filing a Claim: https://www.forfeiture.gov/FilingClaim.htm

Filing a Petition: https://www.forfeiture.gov/FilingPetition.htm

https://www.justice.gov/sites/default/files/usao/legacy/2014/11/14/usab6206.pdf

https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf

Wyden Letter: http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/170712-cpb-wyden-letter.pdf

https://www.eff.org/wp/digital-privacy-us-border-2017#footnote1_8hqfnbt

Full Bill: https://www.wyden.senate.gov/download/?id=9CDE0A37-24DD-4D05-B199-C7E160CAA088&download=1

Sources:

http://www.nbcnews.com/news/us-news/american-citizens-u-s-border-agents-can-search-your-cellphone-n732746

https://www.aclu.org/blog/free-future/can-border-agents-search-your-electronic-devices-its-complicated

https://www.aclu.org/government-data-about-searches-international-travelers-laptops-and-personal-electronic-devices

http://bigstore.ap.org/article/6851e00bafad45ee9c312a3ea2e4fb2c/electronic-media-searches-border-crossings-raise-worry

https://www.wyden.senate.gov/news/press-releases/wyden-paul-polis-and-farenthold-bill-requires-warrants-to-search-americans-digital-devices-at-the-border