Wednesday, February 22, 2017 The Nugget Newspaper, Sisters, Oregon
25
Electronic media searches at border crossings raise worry
By Gillian Flaccus
Associated Press
PORTLAND (AP) —
Watchdog groups that keep
tabs on digital privacy
rights are concerned that
U.S. Customs and Border
Protection agents are search-
ing the phones and other digi-
tal 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 govern-
ment 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.
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 law-
yer at the Electronic Frontier
Foundation.
“We are concerned that a
bad practice that has existed
under past presidents has got-
ten worse in quantity under
the new president,” Schwartz
said.
The government says noth-
ing has changed. Customs
officials also say the per-
ceived 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.
Americans have protection
under the Fourth Amendment
from unreasonable search and
seizure.
A police officer, for exam-
ple, 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 lug-
gage 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 requir-
ing 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 constitu-
tional questions, said Wessler.
“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, said
Schwartz.
Numbers provided by the
Border Protection show a
fivefold increase in electronic
media searches in the 2016
fiscal year ending on Sept. 30
over the previous fiscal year.
In 2016, under the Obama
administration, there were
23,877 electronic media
searches. That comes to .0061
percent of total arrivals into
the U.S. In fiscal year 2015,
there were 4,764 electronic
media searches.
A senior CBP official
briefed reporters on the issue
Friday, but the agency insisted
the official not be identified.
“We see it as an article
that is brought into the U.S.,
no different than a booklet of
materials, no different than a
suitcase with items in it,” the
official said.
“We’ve uncovered very
serious and significant infor-
mation in these types of
searches, everything from
national security concerns to
child pornography to evidence
of crimes to determinations of
people’s admissibility status
under the immigration laws.”
Privacy advocates say
travelers who are concerned
should leave their phones and
laptops at home and buy a
cheap phone once they arrive
at their destination.
The Council on American-
Islamic Relations is also
advising its members to do the
same.
Those who can’t leave their
devices behind should encrypt
them and close out of all
social media applications so
they aren’t accessible without
a password, said Schwartz.
But those steps won’t
matter much if a border agent
asks a traveler to unlock the
phone or provide a password,
said Scwhartz.
And travelers should also
be aware of the rules in other
countries. Israel authorities
can check mobile phones at
the airport, for example.
CBP can’t bar a U.S. citi-
zen from entry if they refuse
to comply, but agents can
make things difficult.
Travelers who don’t unlock
their phones could be ques-
tioned, detained temporarily
and have their phones taken
by agents for days.
Travelers who are not U.S.
citizens can be denied entry.
Hasaim Elsharkawi, told
the AP that he was stopped
by agents in Los Angeles last
week as he was boarding a
plane to Saudi Arabia to make
a pilgrimage to Mecca. They
asked him to unlock his phone
without telling him why.
Elsharkawi, a Muslim, said
he refused because he didn’t
want the male agents to see
photos of his wife with her
head uncovered.
When he asked for a law-
yer, the agents detained him,
handcuffed him and inter-
rogated him for four hours
before he agreed to unlock the
device for a female agent, he
said.
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