In March 2017, Zainab Merchant, a graduate student in journalism at Harvard University, was stopped by US customs officers at Toronto Airport when she tried to return home from a trip to visit her uncle. Customs and Border Protection (CBP) took their laptop and asked her to unlock their phone. At first she refused and was told that the units would be taken indefinitely. The merchant eventually locked himself and they were taken out of sight for more than an hour. The agents questioned the Merchant about her journey, her religious belief, and an article she wrote about crossing the border. When CBP returned its phone, the Merchant Facebook app was open and showed its friend list. Certainly her integrity was compromised.
Stories like Ms. Merchant's are on the way, says the American Civil Liberties Union (ACLU). In 2018, CBP conducted approximately 33,000 non-performing electronic device searches – four times the number from 2015. CBP and Immigration & Customs Enforcement (ICE) policies allow authorities to manually look at devices even if there are no suspected errors. Forensic searches require the officers to have "reasonable suspicion" that something is unfamiliar.
Whether these tactics are legal or constitutional is an issue that has not yet been completely settled by the courts. This leaves a very gray area for travelers to worry about in terms of privacy.
What is your personal information?
It's complicated, according to the ACLU. The organization this week revealed new evidence that the Home Office (DHS) junk travelers first and fourth change protection by searching their smartphones and laptops at border crossings without delay. The information was obtained after the ACLU, together with the Electronic Frontier Foundation (EFF), sued DHS on behalf of sellers and other travelers.
"The proof … shows that the scale of border searches between ICE and CBP is unconstitutional wide," said lawyer at EFF official Adam Schwartz. "ICE and CBP's policies and practices enable unlimited, independent searches of travelers' digital devices and allow masters to avoid the fourth amendment when they review much personal information available on laptops and phones."
What happens if you refuse to unlock your devices? Can you say no?
Part of the question is that the agencies are looking for units for reasons other than the Act on Immigration being implemented. ACLU says CBP and ICE will search for "general law enforcement purposes" phones and laptops. These can include learning of information, or to increase other surveys. This is seen as a crime against privacy.
What happens if you refuse to unlock your devices? Can you say no?
Here's what to do at the border
Whether you enter the country by air, boat or other border crossing, you will come across CBP and possibly ICE . The US government says it has the power to seek everything, including electronic devices, regardless of the traveler's legal status as a resident or visitor, and whether there is suspicion of a crime. This is still a disputed legal issue.
You can tell CBP that you do not approve a search, but it will not stop it from taking the phone. In addition, this will likely land you in a small room for hours, as CBP escalates its search of your belongings.
How about your password? US citizens cannot be denied entry to the country if they refuse to give a password or unlock a device. In this case, however, CBP is likely to confiscate all units and hold them indefinitely. CBP does not need to return units in time. Some travelers who have got their units confiscated have waited weeks or months to get them back.
Non-citizens (tourists and visa holders) may need to weigh less attractive options. Refusing to deliver a password can lead to CBP denying entry, simple and simple. The government is trying to make it compulsory for travelers not only to unlock devices, but to provide passwords for social media and other accounts.
If you have agreed to unlock your device, CBP agents can only give it a "clear search" and return it quickly. If CBP chooses a "forensic search", it is sent to a laboratory and held for at least five days. Forensic searches are thorough and can recover deleted messages and other information.
If you leave the airport without your unit, get a detailed receipt.
ACLU suggests that people who agree to unlock their devices do it themselves (write it manually), instead of writing the password for CBP. If you write your password down, it will probably be stored by the government and ACLU says you should change it as soon as possible.
If you leave the airport without your unit, the ACLU says that you will receive a detailed receipt, besides the name and brand number of CBP personnel involved in seizure. Devices that have been driven through a forensic search must be returned (eventually) as long as there is no probable cause or evidence of a crime. The government can download all data from the device, but it says that the information will be destroyed within three weeks.
How do I protect my privacy?
There are steps that travelers can take to minimize the effects of having units seized and unlocked.
This can be difficult for many, but a suggestion is to carry as little with you as possible while traveling. It means as few units as you can handle, and with as little data as possible. If you are traveling for personal reasons, consider bringing a dedicated phone or laptop that has minimal data on board. All devices and accounts must be password protected and devices must be encrypted. Use strong passwords and keep them away when crossing the border.
See also: The best password managers for Android
Leave your data in the cloud. Do not store anything locally on memory cards or hard drives – which, incidentally, are also subject to search. Make sure apps on the device are disconnected from associated cloud accounts as you cross the border. Currently, CBP's policy states that it will not seek cloud data or other data that is only available via the Internet. This means that email and social media content that is not physically present on the current device is secure. Similarly, upload sensitive images from cameras and mobile devices before crossing the border. Make sure they are stored securely in the cloud.
Use the aircraft mode to your advantage. Because CBP searches are limited to what is on the device, leave it in flight mode so that the phone is not synchronized at any border search. This can let you unlock the device, or give a password to address CBP agents, while following the law and protecting your data.
If you absolutely have to travel with sensitive data, eg. lawyer-client information, ACLU suggests you the warrants to the privileged material before accessing the device. In these cases, CBP must adhere to certain legal proceedings.
Last but not least, whatever you do, remain calm. Do your best to keep an even temperament and handle CBP and ICE agents in a polite and friendly manner.
Enjoy your summer trips safely, securely and privately.