Border Agents Searching Mobile Telephones: Unreasonable?

“T he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Border Agents Searching Mobile Telephones: Unreasonable?

The first paragraph of this article is a verbatim quote of the Fourth Amendment of the Constitution of the United States, which was created at Independence Hall in Philadelphia on Monday, September 17, 1787 — but the historic document mentions nothing about checkpoints at airports and at national borders, where agents of the Customs and Border Protection of the United States can reportedly force anyone to surrender his or her mobile telephone without permission or a warrant and without citing any reasons, according to this article written by Cynthia McFadden, , William and  for NBC News.

The following video from the aforementioned article illustrates the experience of Akram Shibly — whose parents are from Syria — and Kelly McCormick from Buffalo returned to the United States from a trip to Toronto on Sunday, January 1, 2017, they were detained for approximately two hours by agents of Customs and Border Protection, who confiscated their mobile telephones and demanded their passwords:

Shibly and McCormick are American citizens; but 23 of the 25 cases examined by personnel of NBC News involved people who are Muslim, according to the aforementioned article, from which this excerpt came…

“That’s shocking,” said Mary Ellen Callahan, former chief privacy officer at the Department of Homeland Security. She wrote the rules and restrictions on how CBP should conduct electronic searches back in 2009. “That [increase] was clearly a conscious strategy, that’s not happenstance.”

..and the following excerpt contains quotes from Hugh Handeyside, who is a staff attorney in the National Security Project of the American Civil Liberties Union

Under the Fourth Amendment, law enforcement needs at least reasonable suspicion if they want to search people or their possessions within the United States. But not at border crossings, and not at airport terminals.

“The Fourth Amendment, even for U.S. citizens, doesn’t apply at the border,” said Callahan. “That’s under case law that goes back 150 years.”

The ACLU’s Handeyside noted that while the Fourth Amendment’s warrant requirement doesn’t apply at the border, its “general reasonableness” requirement still does, and is supposed to protect against unreasonable searches and seizures. “That may seem nuanced, but it’s a critical distinction,” said Handeyside. “We don’t surrender our constitutional rights at the border.”

Customs and Border officers can search travelers without any level of suspicion. They have the legal authority to go through any object crossing the border within 100 miles, including smartphones and laptops. They have the right to take devices away from travelers for five days without providing justification. In the absence of probable cause, however, they have to give the devices back.

CBP also searches people on behalf of other federal law enforcement agencies, sending its findings back to partners in the DEA, FBI, Treasury and the National Counterterrorism Center, among others.

Callahan thinks that CBP’s spike in searches means it is exploiting the loophole “in order to get information they otherwise might hot have been able to.”

Summary

Are agents of agents of Customs and Border Protection doing their utmost to protect citizens and visitors of the United States — or are they overstepping their bounds?

If they are overstepping their bounds, then why are they doing so?

As with the Transportation Security Administration, Customs and Border Protection needs to balance security with simultaneously protecting the rights of people who cross the borders into this country. Although confiscating mobile telephones is apparently not unlawful, is it unreasonable?

One way to think about that question is: while the chance of an agent demanding that you relinquish your mobile telephone is remote, would you comply without resistance?

If you are indeed concerned about your mobile telephone being searched, you may want to consider transferring sensitive information to another device at another site from which you can access remotely. Many manufacturers of mobile telephones offer what are known as “cloud” services — they can be free of charge or be available for a fee, depending on how much storage space you may require — where you can temporarily store your sensitive information until after you cross the border…

…or if you are very concerned about the security of your information and do not need it with you when you travel, consider temporarily storing that information on a secure hard disc drive at your home.

Other than telephone numbers, I have no sensitive information on my mobile telephone — unless the music to which I enjoy listening when I travel is considered sensitive information — but as the seizure of my mobile telephone has not yet happened to me, I am unsure as to how I would react.

I suppose my reaction would depend on the situation itself…

Photograph ©2013 by Brian Cohen.

4 thoughts on “Border Agents Searching Mobile Telephones: Unreasonable?”

  1. Eduardo Snowden says:

    Note that while the 4th amendment does not apply, the 5th amendment still does. You do NOT have to unlock it for them. You can encrypt it, turn it off and it is up to them to figure out your password.

    1. Brian Cohen says:

      While that may be true, Eduardo Snowden — interesting twist on the name, by the way — the article from NBC News states:

      “DHS has published more than two dozen reports detailing its extensive technological capability to forensically extract data from mobile devices, regardless of password protection on most Apple and Android phones.”

  2. Nick says:

    I have Global Entry and i don’t interact with any border agents. I like that.

  3. GUWonder says:

    GE members using GE have had their phones subjected to search and even the locked devices subjected to information extraction tools.

    Here’s an example of extraction tools that have been used by CBP, some of which have been used on devices owned by past or current GE members.

    https://www.dhs.gov/publication/mobile-device-acquisition

    Just because you think a phone is free of potentially incriminating information doesn’t mean it is, even if you’ve never violated a law. For example, the phone’s positioning info and call logs can give rise to circumstancial evidence of being associated with or even a perpetrator of criminal activity despite not actually having committed any crime. And that can lead to real hassles for passengers in a world where “guilt by association” has real consequences at border crossings too.

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