Photo by Blake Patterson/Flickr
Last year, the Customs and Border Protection of the United States examined 30,200 electronic devices. That is more than 60 percent higher compared to the number of searches that its personnel conducted during the year before to the alarm of privacy advocates. Some also see the increase in searches as a product of the stance on immigration of the administration. “[I]t goes against the very thing the 4th Amendment was designed to protect against, which is arbitrary dragnet surveillance,” a law professor, Ryan Calo, of the University of Washington in Seattle informed the Los Angeles Times. The agency has reported those numbers during an announcement, along with some changes to its directives that could be considered as both good and bad news for travellers.
The good news is that agents of the customs will now be required to have “reasonable suspicion” in order to perform a thorough search of the phones. Normally, an advanced search on electronic devices in the airports means connecting the device to an external gizmo that can be able to analyse or copy their contents. Border guards can still search the gadget manually without a warrant, though, since the renewed directives currently state that the owner is “obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.” A possible interpretation for the directive is that the owner is expected to unlock the phone if an agent requests him/her to do so. It is not clear if the owner has the choice not to comply with the request since the officers can reasonably “detain” a device if they cannot complete an inspection.
While the owners can put their phones in airplane mode in order to prevent an agent from searching through notes, emails, files, and documents that are saved in the cloud, that is definitely not enough for the ACLU. The organization filed a lawsuit against Homeland Security because of this exact issue in 2017. In a statement, the agency said:
“It is positive that CBP’s policy would at least require officers to have some level of suspicion before copying and using electronic methods to search a traveller’s electronic device. However, this policy still falls far short of what the Constitution requires — a search warrant based on probable cause.
“The policy would still enable officers at the border to manually sift through a traveller’s photos, emails, documents, and other information stored on a device without individualised suspicion of any kind. Additionally, it fails to make clear that travellers should not be under any obligation to provide passcodes or other assistance to officers seeking to access their private information. Congress should continue to press CBP to improve its policy.”