Protecting Data and Privacy at the Border

The question of what the right balance is between personal privacy and national security is not a new one. But over the past few months, it has become a louder question drawing more attention not just from lawyers and politicians but from the media and the public as well, especially in border states like Arizona.

Recently, several accounts of American citizens having their cellphones searched when they reenter the U.S. through a border crossing or at an airport have made the news.

Advocacy groups and news outlets have drawn attention to the fact Customs and Border Patrol (“CPB”) agents can, in many cases, lawfully search an individual’s cellphone or another electronic device. CPB agents, unlike law enforcement agents elsewhere in the U.S., often can ask to search phones and other devices with no warrant or even reasonable suspicion.

Several articles offer suggestions and considerations for handling a request to turn over a cellphone to border agents or a demand to unlock the device or enter a password even though, according to one NBC News story (citing Department of Homeland Security statistics), “fewer than 0.01 percent of travelers have their phone or computer searched, and only some of them are American citizens.”

Whether a traveler can be forced to turn over an electronic device and what the risks are for refusing depend on several factors including the traveler’s citizenship status, proximity to a border, type of travel undertaken, and more. But how often are searches happening, how many individuals are affected, and what types of policies are in place to protect individual privacy?

One recent lawsuit is looking for answers to those questions.

At the end of March 2017, the Knight First Amendment Institute at Columbia University sued the U.S. Department of Homeland Security (“DHS”) and US Immigrations and Customs Enforcement (“ICE”) seeking the “disclosure of records concerning suspicionless searches of individuals’ electronic devices at the nation’s border.”

The lawsuit, Case 1:17-cv-00548 filed in the U.S. District Court for the District of Columbia, claims such searches have “risen sharply since 2015, with a marked increase in the first quarter of 2017.” The lawsuit alleges “reports of suspicionless searches…at U.S. borders and international airports have abounded” and that some reports “detail instances in which [Customs and Border Patrol] officers exerted pressure or outright force to obtain electronic devices and passcodes.”

The Knight Institute says it is seeking “information necessary for the public to fully understand the government’s policies and practices relating to searches of electronic devices at the border” including information on the number of searches actually conducted, the reasons for each search, and policy documents such as those that might identify “policies, practices, or procedures concerning how [Customs and Border Patrol] officers handle ‘privileged or other sensitive materials.’”

The information is critical, the Knight Institute argues, in part because of how people use their cellphones and other devices today, not just for phone calls but to “store their most intimate information on their electronic devices, reflecting their thoughts, explorations, activities, and associations.” “Subjecting that information to unfettered scrutiny,” the Knight Institute reasoned, “invades the core of individual privacy and threatens free inquiry and expression.”

Such concerns also have made their way into a bill introduced in Congress this week: the “Protecting Data at the Border Act.” The bill, sponsored by a mix of House and Senate Democrats and Republicans, aims to “ensure the digital contents of electronic equipment and online accounts belonging to or in possession of United States persons entering or exiting the United States are adequately protected at the border.”

The bill would prohibit searches of U.S. residents’ “electronic equipment,” including cellphones, tablets, and computers, without first establishing probable cause. According to Representative Jared Polis, “The bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents don’t continue to violate essential privacy safeguards.” Although it seems unlikely to pass even with support from Democrats and Republicans, the bill draws attention to and gives some voice to the growing concerns and anxieties over personal privacy in an age of an increased reliance on technology and increased focus on national security.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2017. All rights reserved.

This entry was posted in Civil Rights, Privacy and tagged . Bookmark the permalink.