Increased security at U.S. airports has a lot of people worried about the security of their mobile devices. We keep a lot of personal, sensitive information on our phones, from banking apps to photos, and the idea of someone rifling through all of those things is rather uncomfortable.
But what can security agencies, like the Transportation Security Administration (TSA) or Customs and Border Protection (CBP), actually do with your phone? Can they take it away? Can they even look through it? Knowing what’s allowed and what’s not is key to being informed. Here are six things you need to know.
1. TSA Won’t Take Your Phone, But CBP Might
First, let’s talk about who might be looking at your phone. TSA protects transportation systems: they scan your luggage, ensure your ticket is valid, and provide airport security. The only reason they might be interested in your phone is if it looks suspicious and they’re not sure it should be allowed on a plane.
(Just to be clear, that’s not a legal opinion. Can TSA take your phone? Yes. But it’s very unlikely.)
CBP, on the other hand, is a different story. This organization exists to “safeguard America’s borders thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”
In short, they want to keep terrorists out, as well as enforce agricultural laws and similar statutes that limit what people can bring into the country. And they’re going to be much more interested in your phone.
2. CBP Is Interested in Your Intentions
So why is CBP interested in your phone? Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner, puts it simply: “Electronic device searches are integral in some cases to determining an individual’s intentions upon entering the United States.”
The CBP says these types of searches have been crucial in supporting investigations of national security, child pornography, human trafficking, visa fraud, export violations, and intellectual property rights violations. In short, they work.
What sorts of things will the CBP look at if they decide to search your phone? Contacts, messages, social media accounts, photos, and apps are fair game. If a border agent suspects you might be coming into the country with ill intentions, they’re going to use any means they can to determine whether that suspicion is well-founded.
Exactly what contacts, messages, or apps might warrant further investigation isn’t clear. It’s up to the border agent to decide whether you should be detained or denied entry.
3. Phone Searches and Seizures Are Rare
CBP recently released some statistics on the number of electronic devices they search. In fiscal year 2015, 8,503 international travelers had their devices searched. In 2016, it was just over 19,000. That sounds like a lot, but it’s less than one-hundredth of a percent in both cases.
In the first six months of fiscal year 2017, they searched just under 15,000, so searches are getting more common. That’s still less than 0.01 percent, though. Not accounting for factors like travel destination, ethnicity, behavior, and anything else that might affect your chances of being searched, you’re not very likely to have your phone seized.
Of course, there are many stories of people seemingly targeted for their ethnicity or home country for unreasonable searches.
4. What CBP Can Do Is Unclear
Exactly what Customs and Border Protection can do with your phone isn’t always clear. They can, for example, search it, and they can also copy the data to be perused later. They can’t keep the data for very long, and they’re required to delete it if it’s not related to a legal investigation.
In some states, agents need to have a reasonable suspicion of criminal wrongdoing to run a full forensic search on your phone, but not to quickly flip through your photos, messages, and so forth.
CBP also reserves the right to detain your phone for up to five days, though that limit can be extended. There are reports of some devices being seized for weeks or months.
The legal rights of CBP are often contested and sometimes ill-defined. In general, though, they can look through your phone, hold it for closer inspection, and send it off for a full forensic examination. That examination could come up with things you’ve deleted or didn’t know were on your phone.
5. Unlocking Your Phone Isn’t Required, But Helpful
The extent of your rights when subject to search and seizure is hotly debated. There are Constitutional protections in place that prohibit unreasonable searches, but they’re often loosely interpreted at the border. Whether — and to what extent — they apply to non-citizens is also sometimes debated.
However, there are a few things that are certain. First of all, if you’re a U.S. citizen, you can’t be denied entry into the country for refusing to unlock your phone. That doesn’t mean you can’t be detained, though. You might find yourself facing a great deal of inconvenience if you don’t unlock your phone. Whether it’s worth it is up to you.
Non-citizens won’t find the same protection. You can be denied entry into the country if you don’t unlock your phone. And it certainly can happen. And you don’t need to hail from a country considered hostile. A Canadian reporter was denied entry in November 2016 when he refused to unlock his phone to protect confidential sources.
This brings up an interesting point: can you refuse to unlock your device on the grounds that you have confidential information that’s legally privileged? Journalists, doctors, and lawyers all might consider this question. Unfortunately, there’s no clear answer. CBP says it will tread carefully in these situations. Other organizations aren’t so happy with how that’s been put into practice.
You can always tell the agent that you have confidential, privileged information. But it might not get you anywhere.
The other legal option you have is to call a lawyer. It’s important to note that, while groups like the ACLU often recommend this, it’s going to immediately make the border agent suspicious. You’re likely to spend a lot longer at the border, and it’s going to be an unpleasant fight. You also have to pay for that lawyer, as the government isn’t required to provide one like they are in a courtroom situation.
6. Protecting Yourself Is Good, But May Raise Suspicions
There are a few things you can do if you’re nervous about CBP searching your phone when you enter the country. As we discussed in the previous section, however, it’s important to note that taking these actions might raise the suspicions of border agents. You might be doing these things on principle, but think of it from their point of view — it definitely looks like you have something to hide.
That being said, if you want to keep their eyes off of your data, it’s a good idea to not have much data on your phone when you travel. Switching your SIM over to a burner phone is easy, and keeps all of your private information elsewhere. You can also backup and wipe your phone before you travel. Fully encrypting your device will make copies less useful, and keeping sensitive documents and photos in the cloud instead of on your device makes them harder to get to.
Again, remember that these actions might raise the suspicions of border agents. And that could cause you a lot of inconvenience. That doesn’t mean it isn’t worth doing — just remember that you’re making a trade-off.
A Simple Answer and a Complicated One
Can TSA take your phone? Not unless they think it endangers the transportation system. CBP, on the other hand, is a different story. They have extensive rights that are, frankly, important for protecting the United States and its citizens. That doesn’t mean they always use them in ethical ways — but it does mean they’re unlikely to lose those rights anytime soon.
So it’s best to prepare yourself. Keep as little data as possible on your phone, encrypt it, and consider traveling with a burner. Expect to raise border agents’ suspicions, but know that you can’t be denied entry into the country if you’re a citizen. Whether the inconvenience — and potential denial of entry, for non-citizens — is worth it depends largely on your views, tolerance for discomfort, and the importance of your entry.
It’s a tough one.
Have you had your phone searched by Customs and Border Protection? Do you protect your data before you travel? Share your thoughts and experiences in the comments below!
Image Credit: iyd39 via Shutterstock.com