The Department of Homeland Security has reported that searches of cellphones by border agents increased fivefold in just one year, and despite protections under the Fourth Amendment against unlawful search and seizure, the practice is completely legal.
Searches of cellphones increased from fewer than 5,000 in 2015 to nearly 25,000 in 2016, and according to NBC News, the practice, called “detaining” cellphones by CBP agents, began a decade ago during the George W. Bush administration, but at the time, it was highly focused on specific individuals.
Two senior intelligence officers told NBC that the more aggressive tactics of the last two years are a result of a string of domestic incidents in 2015 and 2016 in which the watch-list system and the FBI failed to stop American citizens from conducting attacks. New abilities make it easier to extract contact lists, travel patterns and other data very quickly from phones.
DHS has published more than two dozen reports detailing its extensive technological capability to forensically extract data from mobile devices, regardless of password protection on most Apple and Android phones. The reports document its proven ability to access deleted call logs, videos, photos, and emails to name a few, in addition to the Twitter, Facebook, and Instagram apps.
But the officials caution that rhetoric about a Muslim registry and ban during the presidential campaign also seems to have emboldened federal agents to act more forcefully.
“The shackles are off,” said Hugh Handeyside, a staff attorney with the ACLU’s National Security Project. “We see individual officers and perhaps supervisors as well pushing those limits, exceeding their authority and violating people’s rights.”
As NBC notes, although the Fourth Amendment says that law enforcement needs reasonable suspicion if it wants to search people or their possessions within the United States, that law does not apply at border crossings or airport terminals.
So, what, exactly, are border agents allowed to do?
According to federal statutes, regulations and court decisions, CBP officers have the authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. CBP can also question individuals about their citizenship or immigration status and ask for documents that prove admissibility into the country.
CBP refers to several statutes and regulations in justifying its authority to examine “computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.”
CBP says it can conduct these searches “with or without” specific suspicion that the person who possesses the items is involved in a crime.
There is hope that this policy will be done away with, or at least require a warrant before it is invoked. Engadget reports that Oregon Democratic Sen. Ron Wyden is preparing a bill that would require a warrant before border agents can search the devices of U.S. citizens and would forbid them from asking for passwords, which is another issue people who have had their phones searched have encountered.
Wyden’s bill would close a gap in civil rights for at least some of the population. CBP’s own policy hasn’t been updated since 2009, at a time when smartphones were only just becoming popular and data privacy wasn’t as paramount an issue as it is today.
Engadget notes that the new White House immigration policy is believed to have contributed to the spike, as if any of us didn’t suspect that already, but because of this, those who back the bill will have to convince Congress that warrant requirements will protect the privacy of U.S. citizens without undermining the security of the nation.