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. The policies of both Democratic and Republican administrations over the last 15 years make this fact abundantly clear.
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 fiscal year 2017, border officials inspected more than 30,000 electronic devices. In 2018, the number rose to more than 33,000; in 2019, nearly 41,000.
During his campaign for president, Joe Biden promised “privacy protections at the border.” But it hasn’t exactly worked that way. In 2021, the CBP conducted 37,450 searches of travelers’ electronic devices. In 2022, the number of searches soared to 45,499.
Border searches are conducted under the “border search exception” to the Fourth Amendment. Essentially, the border is effectively a constitution-free zone. In most legal challenges to this practice, federal courts have rubber-stamped these policies.
Here’s how it works, according to a client we’ll call John who was subjected to one of these searches. John, who has lived outside the United States for more than 30 years, acquired a second citizenship with our help and then gave up his US citizenship. In 2011, he applied for and was granted a 10-year multiple-entry visa to visit the United States for up to three months at a time.
John made his first trip back to the “land of the free” 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 passport and visitor’s visa to a CBP official, he was diverted into “secondary inspection.” This is a higher level of review than is normally required before allowing a person cross a US border.
A CBP officer in secondary inspection insisted that John 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.
The threat that John would not be admitted if he didn’t consent to a search of his electronic devices wasn’t 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 with a search of their electronic devices, a CBP official may conclude they aren’t admissible and send them back.
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 we 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, you might still be asked 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.
The “tear sheet” that CBP gives to individuals “selected” for an electronic device search promises that, “if there is no probable cause to seize the information after review, CBP will not retain any copies of the information.” But in about 10,000 searches per year, the CBP admits that it forensically examines and then saves data – including text messages, call logs, contact lists, photos and other sensitive data – in a massive database. CBP personnel can search this database any time, for any reason, without a warrant. The data is held for as long as 15 years.
The “border” is also a lot larger than you might think. The CBP has given itself the authority to conduct border searches not only at a physical border but also within 100 miles of any border crossing. New York City, Boston, Chicago, San Francisco, Los Angeles, Detroit, Miami, and dozens of other major metropolitan areas are effectively constitution-free zones with respect to the CBP searches. Indeed, close to 200 million people live within 100 miles of a US border crossing.
Most CBP searches within the 100-mile zone relate to immigration enforcement or narcotics trafficking and occur on buses and trains operating in border regions. But in 2014, a federal judge ruled that Uncle Sam can also search travelers’ electronic devices within this 100-mile zone.
We don’t want to overstate the problem, because the more than 45,000 device searches annually represent only about 0.01% of arriving international travelers. But if you’re the one targeted, these odds are meaningless.
How should you protect yourself from Big Brother at the border? The most important precaution is not to take any electronic devices across any international border (not just the US border) unless you’re willing to have customs officials go over them with a fine-tooth comb. Transfer data you want to access while you’re traveling to secure cloud storage and then uninstall the cloud application on your electronic devices. You can reinstall it later. Just be sure to remember your passwords.
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 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.