In the age of Donald Trump's travel bans and the fallout of Edward Snowden's leaks, many travelers are fearful that crossing the U.S. border—either on the way home or to visit—will result in a loss of personal privacy. But is this justified? Can officers search and seize your possessions? Can they scroll through your phone?
To get the answer to these questions and to find out what you—the law-abiding traveler—can do to protect your privacy, I spoke with Raj Rathour, a lawyer with a passion for travel.
Among jet-setting adventurers and fleeing refugees alike, simply crossing a border may prove the realization of a dream, a lifetime in the making. Whether arbitrary or in the shape of two kissing dinosaurs, borders can divide, protect, and win elections – depending on who you ask.
In the United States, the protectionist battle cry of securing our borders has emerged to captivate the public discourse and shape international diplomacy. In airports and checkpoints throughout the country, this campaign promise has taken the form of enhanced searches of person and property. It seems that anyone, even NASA engineers, may be subject to the seemingly ambiguous level of authority that border agents possess to search and seize one’s belongings.
What exactly can border agents do?
Custom and Border Protection (“CPB”) agents operate with broad authority to search citizens and visitors alike. Unlike a regular police search, CPB is not required to meet a certain level of suspicion or seek judicial approval prior to the search.
Derived from a variety of federal statutes, these blanket powers allow for warrantless searches, interrogations and requests for production of travel documents. Specifically, 8 U.S.C. §1357(c) provides:
“Search without warrant: Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.”
Electronics, which may include anything from your brand new Nikon to a USB flash drive, are most definitely subject to these types of searches, and have been since the Bush administration (to see what this looks like in practice, check out this guy’s record of CPB seizing $2,000 worth his electronics).
With a catch-all directive of detecting terrorism, transmission of child pornography, financial crimes, and copyright export violations, CPB claims authority to search all electronic devices “with or without individualized suspicion”.
Yes, this means that border officials can ask you to turn on your laptop or phone and search through your devices on the spot (otherwise known as a “cursory search”). Do you have to comply? No. However, non-compliance may subject your devices to seizure and your body to temporary detainment. The risk greatly increases for non-citizens, who may be simply turned away at the border.
If you or your devices are seized, you will probably be given a sheet that looks like this. At the end of the day, the choice to unlock or hand over your device depends on you and how you feel about that particular encounter (and your immigration status).
What about my Fourth Amendment protections that protect me from unreasonable searches and seizures? Those protections are weakened at the border, as the competing interests between the government protecting the borders and your expectation of privacy are heavily tipped in the government’s favor.
How can I protect my privacy at the U.S. Border?
Know that although cursory searches of person and property are allowed, anything more invasive does require a higher level of suspicion. For example, reasonable suspicion of criminal activity is required for CPB to perform a forensic analysis of your external hard drive, just as probable cause is required to keep any copies of call logs made from your seized iPhone. Likewise, CPB cannot take you to a local medical facility, subject you to X-rays and cavity probes to find non-existent drugs, and bill you for said procedures.
For those apprehensive of any future travel plans or the truly paranoid, a new bill requiring probable cause warrants for electronic searches at the border may be the answer. However, until the proposed bill becomes law, you can follow these tips to help protect your privacy:
-Travel light. Either leave your laptop or camera at home or consider buying a travel-only device (Note: this may also arouse suspicion). You probably don’t want to pay for roaming anyways.
-Disable Touch ID. You may be compelled to use your finger to unlock a device, but cannot be forced to hand over your passcode.
-Encrypt your data and use a STRONG password. If you absolutely must travel with your iPhone (do it for the 'gram), set your passcode to at least 6 digits and encrypt any device, like an external hard drive, that isn’t already encrypted (iPhones are encrypted by default).
-Store your data in the Cloud. Services such as Apple's iCloud, which store your content on private servers, will not only will you free up space on your devices, but eliminate your need to carry data with you.
-Turn off your electronics. Before you show up, completely shut off all your devices. This is when encryption works best. Also turn off Siri from the lock screen so she can’t betray you.
-Don’t lie. As with any contact with law enforcement, do not lie. Not only will your pants be on fire, but you may also be prosecuted for obstructing justice.
