Can U.S. border guards search your phone? Yes, and here’s how

Secretary of homeland security explains a new policy that let’s border guards check phones

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.

Alexander Panetta, The Canadian Press

Like us on Facebook and follow us on Twitter.

Just Posted

Bowser residents protest marine sewage outfall plan

Veenhof and staff endures harsh criticisms at public information meeting

Qualicum Beach society goes to bat for insect eaters

Two bat houses built to monitor population in Heritage Forest

Parksville reopens portion of wetland

City undertakes review, remediation of liability concerns

Is Steve Nash Vancouver Island’s best athlete of all-time?

As Captain Canada gets ready to enter basketball’s Hall of Fame it’s time to debate his legacy

Who is Vancouver Island’s greatest athlete ever?

We want to know, you get to choose in a 64-athlete tournament bracket

VIDEO: After the floods, comes the cleanup as Grand Forks rebuilds

Business owners in downtown wonder how long it will take for things to go back to normal

Rachel Notley to skip premiers conference to focus on pipeline deal

Kinder Morgan has ceased all non-essential spending on the Trans Mountain pipeline project until it receives assurances

B.C. tech company will power Uber Elevate

Moli and Uber announce research and development partnership.

Olympian sues USA Swimming, saying it failed to protect her

Ariana Kukors Smith alleges her former coach Sean Hutchison began grooming her for sexual abuse at the age of 13

Defence minister thanks troops for B.C. flood relief work

Harjit Sajjan says not only was military response quick, support from locals has been ‘tremendous’

Still no sign of missing father in Cowichan Valley

Search group for Ben Kilmer now stands 40 SAR volunteers and another 100 friends and concerned community members

Couple survives being buried in mudslide on B.C. highway

The couple, from Saskatchewan, were en route to Nelson when a tree fell in their path

‘So grateful:’ Injured Bronco hockey player glad he’s alive, works on recovery

Ryan Straschnitzki was badly hurt in the accident: a spinal injury, broken ribs, a broken collar bone, and punctured lung

UPDATE: Woman dies in ocean accident near Tofino hours before daughter’s wedding

“We are so thankful to everyone who helped our mom.”

Most Read