Agents au­tho­rized to de­mand pass­codes — with no prob­a­ble cause

Edmonton Journal - - NP - ALEXAN­DER PANETTA

WASH­ING­TON • In one of sev­eral testy ex­changes dur­ing a U.S. Se­nate hear­ing this week, the coun­try’s sec­re­tary of Home­land Se­cu­rity was pressed to ex­plain a new pol­icy that al­lows cus­toms agents to ex­am­ine the cell­phones of trav­ellers at the bor­der.

“I want to make sure I un­der­stand this. I live an hour’s drive from the Cana­dian bor­der,” said Ver­mont Sen. Pa­trick Leahy.

“If I go to Canada and visit some of my wife’s rel­a­tives, and I come back ... they (can) say, ‘We want your lap­top and your phone and your pass code.’ And I say, ‘Well, do you have any rea­son?’ They say, ‘We don’t need one.’ Is that cor­rect? They can do that?”

“Wel­come to Amer­ica,” Leahy added sar­cas­ti­cally.

Sec­re­tary Kirst­jen Nielsen ex­plained some of what the new pol­icy does and doesn’t do. Some key de­tails:

Back­ground: Searches of phones were sky­rock­et­ing. Bor­der agents in­spected 30,200 phones and other de­vices last year — an in­crease of nearly 60 per cent from 2016. U.S. of­fi­cials say it re­mains a mi­nus­cule per­cent­age of over­all trav­ellers — 0.007 per cent, or roughly one per 13,000. The Depart­ment of Home­land Se­cu­rity says it’s nec­es­sary to com­bat crimes like ter­ror­ism and child pornog­ra­phy.

Cus­toms agents have broad power: Im­mi­gra­tion lawyer Henry Chang notes that one of his own col­leagues once com­plained about a search, fear­ing a breach of at­tor­ney-client priv­i­lege: “The of­fi­cer said, ‘I don’t care,”’ Chang said. He said bor­der guards can eas­ily refuse some­one en­try: “There’s ways they can mess with you,” he said. “They can just de­clare you an im­mi­gra­tion risk ... de­tain you, turn you away un­til you co-op­er­ate ... That’s enough to scare peo­ple into co-op­er­at­ing.”

The new di­rec­tive: On Jan. 4, U.S. Cus­toms and Bor­der Pro­tec­tion is­sued a new di­rec­tive ti­tled “Bor­der Search of Elec­tronic De­vices.” It ac­tu­ally set new lim­its on agents, es­tab­lish­ing cri­te­ria for when they can con­duct ex­ten­sive searches — like down­load­ing doc­u­ments stored in the cloud, or up­load­ing files into a stor­age drive for anal­y­sis.

Your pass­code: Agents can de­mand a pass­code to open your phone without prob­a­ble cause, Nielsen con­firmed dur­ing the hear­ing.

The cloud: Here, there are new lim­its. Agents can’t just start down­load­ing old files from the cloud: “They can search the data that is ap­par­ent on the phone,” Nielsen said. “They can’t use the phone to ac­cess any­thing that might be stored re­motely.”


Air­plane mode: Of­fi­cers are sup­posed to ask trav­ellers to shut off their sig­nal. That’s to en­sure re­mote files don’t get down­loaded ac­ci­den­tally. If war­ranted by se­cu­rity con­cerns, the Jan. 4 di­rec­tive says of­fi­cers can them­selves per­form the task of shut­ting off con­nec­tiv­ity.

Ad­vanced search: An of­fi­cer may judge it nec­es­sary for na­tional se­cu­rity pur­poses, such as cases where the trav­eller is on a watch list, to con­nect a phone to a hard drive, to copy its con­tents for anal­y­sis. The di­rec­tive says this re­quires the ap­proval of a cer­tain rank of su­per­vi­sor.

De­ten­tion: If they can’t ac­cess a de­vice, of­fi­cers can de­tain it for a multi-day pe­riod. De­ten­tions beyond five days must be ap­proved by man­age­ment. To de­tain a de­vice, of­fi­cers must fill out a form.

Sen­si­tive info: Lawyers can claim at­tor­ney-client priv­i­lege, cit­ing which spe­cific files are sen­si­tive, and the of­fi­cer must con­sult with cus­toms le­gal coun­sel and the U.S. at­tor­ney’s of­fice to de­ter­mine which files should be iso­lated from the reg­u­lar search. Med­i­cal records, pro­pri­etary busi­ness in­for­ma­tion, and jour­nal­ists’ notes must be han­dled in ac­cor­dance with U.S. law, like pri­vacy and trade-se­crets leg­is­la­tion.

Ac­count­abil­ity: Trav­ellers can be present dur­ing a search, though they can’t ask to see the screen. Trav­ellers must be no­ti­fied of the pur­pose for a search. There are na­tional-se­cu­rity ex­cep­tions on those rights. But trav­ellers must be given in­for­ma­tion on where they can com­plain. Searches must be doc­u­mented, with sta­tis­tics kept and reg­u­larly pub­lished. Reg­u­lar au­dits must keep track of whether agents are fol­low­ing rules.

De­struc­tion of records: Any copies of in­for­ma­tion held by U.S. cus­toms must be de­stroyed, and any elec­tronic de­vice re­turned — un­less there’s a se­cu­rity threat and prob­a­ble cause for an ex­cep­tion.

So what to do: Chang of­fers three pieces of ad­vice — be­fore cross­ing the bor­der, delete pri­vate ma­te­rial or trans­fer it to the cloud; at the bor­der, turn on air­plane mode your­self; and, fi­nally, be pre­pared, un­less you have some re­ally com­pelling pri­vacy rea­son, to just turn over your phone.

“You’ve got to choose your bat­tles,” he said.


Be­fore cross­ing the U.S. bor­der, im­mi­gra­tion lawyer Henry Chang rec­om­mends delet­ing pri­vate ma­te­rial from your cell­phone or trans­fer­ring it to cloud stor­age.


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