Question: I've been confused by various articles about a policy whereby the authorities are demanding travelers provide them with their passwords so they can check the contents of their smart phones and/or laptops. What is happening and is this legal?
Albert J. Milo
Answer: Concerns about requests for electronic devices heightened after Sidd Bikkannavar, a NASA engineer, was recently detained in Houston, where Customs and Border Protection asked for the PIN number for his employer-issued phone.
Bikkannavar, born in the United States, was returning from South America when he was detained, according to news reports. He was reluctant to give Customs the PIN because the phone contained employer-related information. He ended up doing so.
If you are faced with the same situation, should you allow your electronic devices to be searched?
The answer depends on your tolerance for inconvenience, your sensitivities about your privacy, and whether you agree with the reason for the searches.
Before wandering down those paths, your first question may be about legality, given the 4th Amendment: “The 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.”
In 2014 the Supreme Court ruled unanimously that law enforcement may not search a phone without a warrant. In an article about the decision, David Savage of the Los Angeles Times wrote, “The decision is the court's most sweeping and surprising criminal-law opinion in years, and it is likely to put a significant check on the government's ability to routinely search other types of electronic devices, including laptops and tablets.”
Maybe. But Title 19 of the U.S. Code, Section 507 says, “Every customs officer shall … have the authority to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by Customs officers, if such assistance may be necessary…. If a person, without reasonable excuse, neglects or refuses to assist a Customs officer upon proper demand … such person is guilty of a misdemeanor and subject to a fine of not more than $1,000.”
Just what in the ho-hum do you do if you’re asked to give up your phone?
As with most things travel-related, the key may be planning for the worst, hoping for the best.
“It's important for everyone to think through the scenario in advance and decide what makes the most sense for them,” Emma Llansó, director, Free Expression Project of the Center for Democracy & Technology, said in an email.
As you consider that, note too that there is a legal answer and there is a practical answer, and they may not be the same, said Nathan Wessler, a staff attorney with the American Civil Liberty Union’s Speech, Privacy and Technology Project.
Here are some of the issues to consider:
Is privacy important to you?
Chief Justice John Roberts wrote in that 2014 Supreme Court decision, “Modern cellphones are not just another technological device. With all they contain and all they may reveal, they hold for many Americans the ‘privacies of life.’”
Wessler expanded on that thought: “Our cellphones and laptops and small electronic devices carry an unprecedented variety of personal and sensitive information … years worth of emails … perhaps intimate photos and more. That is why there are very strong rules that apply to domestic law enforcement … requiring a search warrant. Those same privacy concerns apply at the border.”
Point to ponder: You may have nothing to hide. Maybe your friends and family have nothing to hide either, in which case you may feel comfortable turning over your phone.
But letting someone roam through your digital life may give you the same disquieting feeling you have about a home burglary: You still have all your underwear, but you can tell that your stuff has been touched by someone who is not you.
How much time do you have?
“If you're a U.S. citizen, border officials cannot force you to unlock your phone, but they may detain you for a limited time if you refuse,” Llansó said. “They can't detain you indefinitely or deport you if you're a citizen.”
How inconvenienced could you be? Depends on the situation, but, Wessler said, “We’re talking hours, not days.”
Point to ponder: Are you in a hurry to get home or to catch your connecting flight?
Can you be without your device?
A forensic examination of your phone, laptop or tablet means you could “lose access to the device for weeks or even months,” Wessler said.
Point to ponder: Are your files backed up in the cloud or saved on, perhaps, a hard drive at home? Or maybe you have an old-fashioned Rolodex that holds all the phone numbers you no longer must remember because your phone does that for you.
There are other ways to mitigate damage or inconvenience. “Travelers who are concerned about being detained or having their private communications scrutinized by border officials should consider minimizing the amount of personal information on their digital devices,” Llansó said.
“It might be safest to leave those devices at home.”
“Unfortunately, we’re starting to hear from business travelers who are now making some of the same decisions about traveling to the U.S. [as they do] before traveling to China or Russia,” Wessler said. They may have a dedicated travel laptop or phone for those trips because they have sensitive or proprietary information they cannot afford to lose or disclose, he said.
Assuming you have everything backed up in the cloud, you could delete everything from your phone, enter only the info you’ll need when you travel, then restore your phone when you get home, said Sebastian Harrison, founder of Cellular Abroad, which helps travelers with their cellular/data needs in foreign lands.
Or you could take an unlocked (that is, you don’t owe money on it and are no longer tethered to any provider) phone, buy a SIM card for the country you’re visiting, use it, then get rid of the SIM, Harrison said.
How much trouble you want to endure depends on how concerned you are about these issues.
As my friends and family know, I often carry an extra phone abroad, not because I worry about privacy but because I worry about loss, given that my digital hygiene (I’m sloppy about backing things up) is imperfect. And now of course I have a digital fingerprint on my phone of a call to the ACLU.
What you do depends on your concerns and your needs. Your solution may be different from your neighbor’s or your sibling’s. The point is, as Llansó said, the time to think about this is now, not when you’re in the hot seat. Calm and cool, whether it’s finding out you’re going to miss your airline connection or your digital connection, will always win the day. That’s the beauty of a game plan you may never need.
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