Border Agents’ Searches of Travelers’ Phones Skyrocketed, Agency Says
by Foster LLP, on News
By Alicia A. Caldwell and Laura Meckler, The Wall Street Journal
WASHINGTON – The Customs and Border Protection agency searched a record number of cellphones and other devices at U.S. points of entry last year, the government said Friday, as more travelers carried phones and as the administration stepped up it hunt for national-security threats and smugglers.
In fiscal year 2017, which ended Sept. 30, the government searched the devices of 30,200 people, the vast majority leaving the country, up from 19,051 in fiscal year 2016. More than 80% of the devices belonged to foreigners or legal permanent residents, with less than one in five owned by the U.S. citizen.
“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said John Wagner, deputy executive assistant commissioner for the agency’s Office of Field Operations.
Also Friday, the agency released a new written policy outlining procedures for searching and seizing electronic devices at the border. The new guidance makes clear that agents can only examine information stored on the device, not additional data in “the cloud” that can be accessed.
The policy makes clear that while agents can ask for passwords to access a device, the passwords aren’t to be retained in any way.
And the policy sets forth standards for agents to do an “advanced search,” which involves connecting the device to a computer to retrieve and copy information. Under the rules, advanced searches are allowed only if there is “reasonable suspicion” and “articulable facts” to support it, and with the approval of a supervisor. The standards for more in-depth searches hadn’t been spelled out before. No such standard exists for basic searches.
The new policy also requires border agents to notify a traveler when his or her device is to be searched, unless telling the traveler would harm “national security, law enforcement, officer safety, or other operational interests.”
Stepped-up government searches of personal phones have long unsettled civil libertarians. Last year, the American Civil Liberties Union and the Electronic Frontier Foundation sued the administration on behalf of 10 U.S. citizens and one legal permanent resident whose devices were searched or seized at the border. The groups argue in their suit that the government should be required to have a warrant to look at a traveler’s electronic devices.
Among the plaintiffs is a NASA engineer who said he was forced to unlock his phone and give customs agents access to its contents when he returned to the U.S. from Chile on Jan. 31, in the midst of chaos at airports from the fallout of President Donald Trump’s original travel ban. Sidd Bikkannavar is an American-born engineer for NASA’s Jet Propulsion Laboratory in California.
Privacy advocates wanted more protections for travelers’ rights. “This policy still falls far short of what the Constitution requires – a search warrant based on probable cause,” said Neema Singh Guiliani, legislative counsel at the American Civil Liberties Union, in a statement.
Sen. Ron Wyden (D., Ore.), who with Republican Sen. Rand Paul of Kentucky has introduced a bill that would require officials to obtain warrants before such searches, suggested the policy didn’t go far enough to protect U.S. citizens’ rights.
“There’s more work to do here,” Mr. Wyden said. “Manually examining an individuals’ private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full constitutional rights, no matter where they are in the United States.”
Former Department of Homeland Security Secretary John Kelly, who left the agency last year to become Mr. Trump’s chief of staff, said during a June Senate hearing that such searches aren’t routine and conducted only when necessary.
The Trump administration has promised to step up vetting of foreigners asking for permission to come into the U.S. and to change security at U.S. borders, including airports. Mr. Kelly suggested last year that border agents may even ask travelers for their social-media passwords and access to their internet browsers.