Feds Go on Rampage with Border Searches of Electronic Devices
Privacy is one of the few topics that Democrats and Republicans largely agree on. Their conclusion is that you shouldn’t have any.
That’s especially true when it comes to searches at US borders.
One of the first initiatives taken by the Democratic Obama administration was to adopt policies expanding the ability of border agents to seize and analyze the content of electronic devices. No arrest, warrant, or probable cause required – just “gimme.”
According to data from the Customs & Border Protection (CBP) agency, about 6,700 travelers were subject to electronic media border searches between October 2008 and May 2010. In 2015, CBP officials searched 8,500 such devices. In 2016, the last year of the Obama administration, the number of border searches of electronic devices soared to 19,000.
The Republican Trump administration doubled down on this practice. In 2017, border officials inspected more than 30,000 electronic devices.
Border searches are conducted under the “border search exception” to the Fourth Amendment to the US Constitution. Essentially, the border is effectively a constitution-free zone.
The “border” is also a lot larger than you might think. In 2008, the Department of Homeland Security (DHS) announced that it could conduct border searches not only at a physical border but also within 100 miles of any border crossing. In all, almost 200 million people live within 100 miles of a US border crossing.
Here’s how it works, according to a client I’ll call John who was subjected to one of these searches. John, who has lived outside the US for more than 30 years, acquired a second citizenship with our help and then expatriated. In 2011, he applied for and was granted a 10-year visa to visit the US for up to three months at a time.
John made his first trip back to the US as a non-citizen shortly after receiving his visitor’s visa. But the reception he received wasn’t what he expected. When he presented his St. Kitts passport and visitor’s visa to a border official, he was diverted into “secondary inspection.” This is a higher level of review than is normally required before allowing a person crossing a US border into the US.
John told me the CBP personnel in the secondary inspection insisted that he turn over his iPhone and laptop to them and disclose the passwords to his email accounts. When John asked what would happen if he said “no,” he was told he would not be allowed to enter the country. With friends and family waiting just a few hundred feet away, John complied. After about 20 minutes, a CBP official returned the devices, thanked John for his cooperation, and told him to enjoy his visit to the US.
The threat John received that he would not be admitted if he didn’t consent to a search of his electronic devices was not an idle one. Individuals who are neither citizens nor green card holders must demonstrate to a border official they are "clearly and beyond a doubt" admissible. If they refuse to cooperate, CBP can conclude they aren’t admissible and send them back home.
If you’re a US citizen or green card holder, you have more latitude. You generally can’t be denied re-entry into your own country (although you can in a “temporary security emergency”). However, you could be held for hours in secondary inspection. And CBP can seize your electronic devices and hold them indefinitely, although you’re generally supposed to get them back in five days or less. But I know of cases where an individual’s devices have been held for months.
If you qualify for the TSA’s Global Entry program, you might think there’s less chance you’ll be targeted. While that might be true, it’s not impossible that you’ll have to submit to a search. And if you don’t comply, you’ve committed a “customs violation,” so you’ll likely lose your Global Entry status.
I don’t want to overstate the problem, because the more than 30,000 such searches annually represent only about 0.007% of arriving international travelers. But if you’re the one targeted, these odds are meaningless.
In January, the CBP introduced new procedures which require border officials to have reasonable suspicion of wrongdoing before conducting a “forensic search” of the electronic devices of someone crossing a US border. A basic search – where a border agent simply turns on the device and manually reviews the information on it – doesn’t require reasonable suspicion. And procedures are in place to supposedly protect privileged data on the devices of lawyers or other professionals whose electronic devices contain privileged information.
However, a court case decided in May could upend these procedures. The 11th Circuit Court of Appeals declared that reasonable suspicion isn’t required for a forensic border search. That means within the states comprising the 11t h Circuit (Alabama, Florida, and Georgia), this burden no longer applies. Since several other federal circuit appeals courts have ruled that reasonable suspicion is required, it’s likely that either Congress (or more likely, the Supreme Court) will eventually be called upon to make the final determination.
How can you protect yourself? I’m reminded of a statement I sometimes made to my ex-wife when she went shopping. “Don’t leave home with it,” I jokingly said, referring to her American Express credit card.
The same could be said of your electronic devices, except it’s no joke. Don’t take any electronic device across any international border (not just the US) that you’re not willing to have border officials go over with a fine-tooth comb. Transfer data you want to access while you’re traveling to cloud storage and then uninstall the cloud application on your electronic devices. You can reinstall it later. Just be sure to remember your password. Delete all e-mail apps from your smartphone and all desktop icons from your laptop.
Next, sanitize your device to delete anything even remotely incriminating. For laptops, Privazer is a great choice. It’s a bit more complicated for smartphones. The procedure to sanitize Android phones is at this link. For iPhones, follow this link.
Keep in mind, though, that a tech-savvy border agent may ask for your login to iTunes, iCloud or other cloud backup service. So the best practice is to travel internationally with a “burner” phone with no data on it and a disposable SIM card you throw away before you reach a border crossing.
Above all, don’t count on border officials to protect your right to privacy. As with other matters relating to privacy, you can only rely on yourself.
Protecting your assets (and yourself) against any threat - from the government, the IRS or a frivolous lawsuit - is something The Nestmann Group has helped more than 15,000 Americans do over the last 30 years.
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