Watchdogs worry about phone searches at border

No warrant needed to search electronic media

PORTLAND, Ore. — Watchdog groups that keep tabs on digital privacy rights are concerned that U.S. Customs and Border Protection agents are searching the phones and other digital devices of international travelers at border checkpoints in U.S. airports.

The issue gained attention recently after at least three travelers, including a Canadian journalist, spoke out publicly about their experiences.

The episodes have gained notice amid an outcry over President Donald Trump’s travel ban and complaints of mistreatment of foreign travelers, but the government insists there has been no policy change in the new administration.

Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency, but still amounted to less than one-hundredth of 1 percent of all international arrivals.

Here are some things to know about the searches and your privacy rights.

WHAT HAS PROMPTED THE CONCERN?

The American Civil Liberties Union and the Electronic Frontier Foundation both say they have noticed an uptick in complaints about searches of digital devices by border agents.

The increase has become most noticeable in the last month, said Adam Schwartz, a senior staff lawyer at the Electronic Frontier Foundation.

“We are concerned that a bad practice that has existed under past presidents has gotten worse in quantity under the new president,” Schwartz said.

The government says nothing has changed. Customs officials also say the perceived shift can be attributed to a jump in the number of electronic devices that people are carrying with them and shifting tactics as the agency adjusts to the amount and types of information that can be stored on today’s devices.

WHAT SEARCH AUTHORITY DOES THE BORDER PROTECTION HAVE?

Americans have protection under the Fourth Amendment from unreasonable search and seizure.

A police officer, for example, must obtain a warrant from a judge before searching a suspect’s phone.

But the U.S. border is a legal gray zone. Border agents have long had the right to search travelers’ physical luggage without a warrant, and that interpretation has been expanded to include digital devices, ACLU staff attorney Nathan Freed Wessler said.

In 2013, the 9th U.S. Circuit Court of Appeals ruled that if agents want to do a forensic search they need to have a reasonable suspicion of wrongdoing, he said. But the court stopped short of requiring agents to obtain a search warrant beforehand, he said.

And an agent can flip through a phone in a cursory search for any reason.

The law has not kept up with the “incredible volume of personal data that we have in our pockets now” — and that creates tremendous constitutional questions, Wessler said.

“In some ways, a search of your phone is more invasive than a search of your house,” he said.

A case currently headed to another appeals court could further clarify the law, Schwartz said.