Inspection or Detention

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border-searches.jpg.size.custom.crop.1086x724

By: Eleanor Faust,

 

Reports have surfaced that in the days preceding President Trump’s executive order effectuating an immigration ban, the Center for American-Islamic Relations (CAIR) filed legal complaints concerning hostile interrogations by Customs and Border Patrol agents.[1] The complaints allege that the agents demanded the travelers unlock their phones and provide them with social media account names and passwords.[2] Courts have held that customs agents have the authority to manually search devices at the border as long as the searches are not made solely on the basis of race or national origin.[3] This does not mean that travelers are required to unlock their phones but if they refuse, they run the risk of being detained for hours for not complying with the agent’s request.[4]

When returning home from a trip abroad, you expect to feel welcomed upon arrival but that has not been the case for many recently. When Sidd Bikkannavar got off the plane in Houston from a personal trip to South America, he was detained by the U.S. Customs and Border Patrol.[5] Bikkannavar is not a foreign traveler visiting the United States. He is a natural born U.S. citizen who works at NASA’s Jet Propulsion Laboratory. He has also undergone a background check and is enrolled in Global Entry to allow expedited entry into the United States.[6] While he was detained the customs agents demanded his phone and access PIN without giving him any information as to why he was being questioned.[7] A major concern is that Bikkannavar had a NASA issued phone that very well could have contained sensitive information that should not have been shared.[8] For a number of different professionals, these types of border searches compromise the confidentiality of information.[9] For example, searching the phone of a doctor or lawyer can reveal private doctor-patient or attorney-client information.[10]

Although there is no legal mechanism to make individuals unlock their phone, the customs agent’s have broad authority to detain travelers which can often be intimidating enough to make a person unlock their phone to avoid being in trouble.[11] Homeland Security Secretary John Kelly is looking to expand customs agent’s authority and is pushing to be able to obtain all international visitor’s social media passwords and financial records upon their arrival into the country.[12] At a meeting with Congress, Kelly told the House Homeland Security Committee, “We want to get on their social media, with passwords: What do you do, what do you say? If they don’t want to cooperate then you don’t come in.”[13] In the meantime, Hassan Shibly, the director of CAIR’s FL branch, advises American citizens to remember that, “you must be allowed entrance to the country. Absolutely don’t unlock the phone, don’t provide social media accounts, and don’t answer questions about your political or religious beliefs. It’s not helpful and it’s not legal.”[14]

 

 

 

[1] See Russell Brandom, Trump’s executive order spurs Facebook and Twitter checks at the border, Verge (Jan. 30, 2017, 9:55 AM), http://www.theverge.com/2017/1/30/14438280/trump-border-agents-search-social-media-instagram.

[2] See id.

[3] See Loren Grush, A US-born NASA scientist was detained at the border until he unlocked his phone, Verge (Feb. 12, 2017, 12:37 PM), http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban.

[4] See id.

[5] See id.

[6] See id.

[7] See Seth Schoen, Marcia Hofmann, and Rowan Reynolds, Defending Privacy at the US Border: A Guide for Travelers Carrying Digital Devices, Electronic Frontier Foundation (Dec. 2011), https://www.eff.org/wp/defending-privacy-us-border-guide-travelers-carrying-digital-devices.

[8] Id.

[9] See id.

[10] See id.

[11] See Brandom, supra note 1.

[12] See Alexander Smith, US Visitors May Have to Hand Over Social Media Passwords: DHS, NBC News (Feb. 8, 2017, 7:51 AM), http://www.nbcnews.com/news/us-news/us-visitors-may-have-hand-over-social-media-passwords-kelly-n718216.

[13] See id.

[14] See Grush, supra note 3.

Image Source: https://www.thestar.com/content/dam/thestar/news/canada/2017/02/18/are-us-border-agents-allowed-to-search-phones-and-other-devices/border-searches.jpg.size.custom.crop.1086×724.jpg.