TO SEARCH OR NOT TO SEARCH
June 14, 2019
Recently, there has been an increase in travel security at the borders. Not only have restrictions to travel been enacted but there have also been more searches, including searches of people’s phones. Unknown to most, Border Patrol and Customs agents have long had extensive powers to search when they have reasonable suspicions and often when they do not. But sometimes offering the okay to search is problematic, as with a NASA scientist whose phone contained sensitive work documents that he did not have approval to share. He ended up detained and his phone was seized until he finally provided his passcodes. Many people see this as going too far and violating basic Constitutional rights. So when can Customs or Border Patrol search your phone?
The Power of Customs Compels You
While probable cause is generally required pursuant to a search by police, Customs and border enforcement are a different story. Border security has the right to search anyone coming into the country, including their person, their belongings and their electronic devices, regardless of suspicion. In fact, Border Patrol can police areas as far as 100 miles inside the border and these patrols may be roving patrols. They can even enter private land (but not homes) within 25 miles of the border without warrants.
For more invasive searches, like body cavity searches, Customs does require reasonable suspicion of a crime. But how invasive is a phone search? The Ninth Circuit Court ruled that simple searches require no probable cause but deeper searches that utilize electronic forensics do require probable cause. However, the Ninth Circuit ruling only controls the 9 states in that circuit. The Supreme Court has made no ruling that controls Federal actions on this.
What is a Traveler to Do?
The current state of guidelines places travelers in a precarious position. If you give them your phone password, your personal privacy may be violated and you risk them finding something they deem suspicious. If you refuse to provide passwords, they may seize your device. In both scenarios you may be detained indefinitely, a terrible way to begin or end any travel. If you are a US citizen, they cannot prevent you from re-entry, but if you are not a citizen, even with appropriate paperwork, you can be denied entry. Since there are no laws or guidelines to stop Customs from asking for your password or fingerprint unlock, each person has to decide for themselves ahead of time what the best approach is, and whether they search your phone or seize it altogether, you need to protect your data.
The Electronic Frontier Foundation (EFF) recommends that you assess which devices you absolutely need and the content of your devices before your trip. If it is possible to travel without them or mail them ahead of time, you can avoid these searches altogether. Some people have suggested using a burner phone or removing all the data on your devices. However others argue that this itself would be considered unusual and could prompt a deeper search. EFF also warns that hiding data on your phone can also appear suspicious.
They recommended that you back up data in the cloud, keep cloud accounts locked down with very strong and complex passwords so they are not accessed from your device, and delete unneeded data on your phone, including pictures. If you are planning to not provide passwords, then also make sure that your information is encrypted (and be ready to be detained and/or have your phone seized). Where there are concerns about social media, remove the apps and clear log-in information that may be stored in your browsers. Customs may ask for your social media information regardless of the devices in your possession, so you should also review your privacy settings within those platforms and make them as private as possible. Any data on your device may be extracted with powerful electronic forensic tools and saved for further review.
As with other police encounters you may record what is happening if it does not interfere with the investigation. And while it is recommended you contact a lawyer if you are detained, note that Customs is not required to allow the attorney into the interrogation. You also have responsibilities. Always remain calm and polite. You should never lie to any law enforcement and you should not interfere with investigations of you or anyone else.If there are issues with how Customs is treating anyone or yourself, then be sure to document as much as possible about the encounter, including names of agents and badge numbers where possible.
If you decide it is easier to consent to a search, you should know that this will make it harder to lodge a legal complaint later. EFF recommends that you avoid direct or implied consent but instead comply with protest. In other words you say, I am complying with this order but not consenting. This may protect you if you choose to legally challenge the search later by preventing Customs from arguing that you consented so they did nothing wrong.
While we all understand the need for travel security, these searches create both legal and personal safety challenges. They are also a hassle. To avoid delays or increased travel stress, take the time to prepare and protect your privacy before you go anywhere.