In March 2017, Zainab Merchant, a journalist at Harvard University, was arrested by US Customs staff at Toronto Airport when she tried to return home from a trip to visit her uncle. The Customs and Border Protection (CBP) took her laptop and asked her to unlock her cell phone. At first she refused and they were told that the equipment would be taken indefinitely. The dealer finally unlocked them and they were taken out of sight for more than an hour. The agents questioned Merchant about her trip, her religious belief, and an article she wrote about crossing the border. When CBP returned her phone, Merchant noticed that the Facebook app was open and showed her friends list. Surely her privacy had been compromised.
Stories like that of Mrs. Merchant are on the rise, says the American Civil Liberties Union (ACLU). In 201
Whether these tactics are legitimate or whether constitutional issues are a matter that has not yet been resolved in court. This leaves a lot of gray area for the traveler when it comes to privacy.
What are your personal rights?
According to ACLU this is complicated. The organization revealed new evidence this week that the Department of Homeland Security (DHS) is undoing protection for travelers' first and fourth changes by searching their smartphones and laptops at border crossings without permission. The information was obtained after the ACLU, together with the Electronic Frontier Foundation (EFF), had sued DHS on behalf of Merchant and other travelers.
"The evidence … shows that the scope of ICE and CBP border searches is unconstitutionally broad". said EFF Attorney General Adam Schwartz. "The ICE and CBP policies and practices allow for an unrestricted, guaranteed-free search of travelers' digital devices and empower officers to resist the Fourth Amendment by scouring very personal information on laptops and phones." Equipment? Can you say no?
Part of the problem is that the agencies are looking for devices for reasons other than the enforcement of immigration laws. According to the ACLU, CBP and ICE will search phones and laptops for "general law enforcement purposes". These include, for example, collecting information or investigating further investigations. This is considered a violation of privacy.
What happens if you do not want to unlock your devices? Can you say no?
Here's what you can do at the border
Whether you are coming by plane, boat or other border crossing into the country, CBP and possibly ICE meet. The US government has the power to search anything, including electronic devices, regardless of the legal status of the traveler as a resident or visitor, and whether or not there is a suspicion of a crime. This is still a controversial case.
You can tell CBP that you do not agree to a search, but that this does not prevent you from accepting your phone. In addition, you will probably end up spending hours in a small room as CBP escalates the search for your belongings.
What about your password? US citizens can not be denied entry into the country if they refuse to provide a password or unlock a device. In this case, however, it is likely that CBP will confiscate all equipment for an indefinite period. CBP is not required to return devices in a timely manner. Some travelers whose equipment has been confiscated waited weeks or months for their return.
Non-citizens (tourists and visa holders) may need to consider less appealing options. Refusing to enter a password may cause CBP to refuse entry. The government is trying to mandate that travelers not only unlock devices, but also provide passwords for social media and other accounts. This will be fought before courts.
If you have agreed to unlock your device, CBP agents may only give a "fugitive search" and give it back quickly. If the CBP chooses a "forensic search," it will be sent to a lab and held for at least five days. Forensic searches are thorough and can recover deleted messages and other data.
If you leave the airport without your device, you will receive a detailed receipt.
The ACLU recommends that people who agree to unlock their devices do so (manually)) instead of writing down the password for CBP. When you write down your password, it's probably saved by the government, and the ACLU says that you should change it as soon as possible.
If you leave the airport without your device, the ACLU will request a detailed receipt, in addition to the name and identification number of the CBP staff involved in the seizure. Devices that have undergone a forensic search should (possibly) be returned unless there are probable causes or indications of a crime. Although the government can download all data from the device, 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 impact of equipment seized and unlocked.
This may be difficult for many, but one suggestion is to take as few trips as possible. This means that you can manage as few devices as possible and with as little data as possible. If you are traveling for personal reasons, you can bring along a dedicated travel phone or laptop that has minimal data on board. All devices and accounts should be password protected and the devices should be encrypted. Use strong passwords and hold them out when crossing the border.
See also: Best Password Managers for Android
Your data should be stored in the cloud. Do not save locally to memory cards or hard disks that are also scanned. Make sure the apps on the device are not connected to the associated cloud accounts when they cross the border. Currently, CBP policies do not look for cloud data or other data that can only be accessed over the Internet. This means that email and social media content that is not physically present on the actual device is secure. Upload sensitive images as well before crossing the border. Make sure they are securely stored in the cloud.
Use airplane mode to your advantage. Because CBP searches are limited to what's on the device, leave it in airplane mode so the phone does not sync during a border search. This may allow you to unlock the device or provide a password to appease CBP agents, while complying with legal regulations and protecting your privacy.
If you need to travel with sensitive information, such as information about the lawyer and the client, the ACLU suggests that you alert the officers to the privileged material before granting access to the device. In these cases, CBP must comply with certain legal procedures.
Last but not least, stay calm, whatever you do. Do your best to have a balanced character and be courteous and friendly with CBP and ICE agents.
Enjoy your summer trips safely, safely and privately.