Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

Vulnerability Is Not The Same As Failure

We borrow those words from this smart essay on national security that was written in the wake of the terrorist attacks in Brussels this spring.

The author is a former assistant secretary at the Department of Homeland Security and a current member of the Department’s Homeland Security Advisory Council. The Advisory Council consists of top leaders from the worlds of business, government, and academia who provide the Department with real-world, independent advice on homeland security. So the author knows something of what she speaks.

And her essay is worth a read. In it, she answers some of the earnest questions she’s been asked over the years by friends and family.

  • Should I buy a gun? “Only with training and safety measures at home, and certainly not to combat Islamic terrorists.”
  • Is Times Square safe on New Year’s Eve? “Like every crowd scene, you have to stay alert, but security is high at events like that.”
  • Is my family safe? “No, not entirely.”

What she means is that the government simply cannot reduce our vulnerabilities to zero, and even if it could, we wouldn’t want it to. Doing so would destroy the country we love and believe in and derail its great experiment with freedom. That experiment—for all its flaws and growing pains—was ahead of its time in the beginning, and it continues to serve as a model for the world today. The risks we tolerate, then, are not bad bargains just because an enemy can exploit them, and even as we try to minimize those risks and maximize our defenses, we must maintain our spirit.

But you should read her words for yourself.

 

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