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

B.C. Green Party pushes for wild salmon commissioner

The role would serve as a unifying force in the provincial government

BC Ferries confirms Northern Sea Wolf will not sail until mid-July

BC Ferries had hoped to get the vessel in September of last year, but it didn’t arrive until December

UPDATED: Horgan says B.C. defending its interests in Trans Mountain pipeline

Canadian finance minister’s update comes the same day Kinder Morgan shareholders plan to meet

5 things to know about B.C. Floods 2018

Snowpacks continue to melt causing thousands to be displaced, dozens of local states of emergency

VIDEO: Canadian Forces help flood-ravaged Grand Forks residents heal

Sgt. Bradley Lowes says the military is used to dealing with traumatic times

Chilliwack Chiefs make history with first RBC Cup win

In front of a huge and noisy crowd, the Chiefs claimed their first-ever national junior A title.

UPDATED: Majority of flood evacuees in Kootenay-Boundary allowed to return home

Officials hope to have all 3,000 people back in their homes by Monday night

B.C. Lions bring back 6-time all-star offensive lineman Jovan Olafioye

He was acquired by the Montreal Alouettes last year.

Whitecaps rally for 2-2 draw with FC Dallas

Vancouver climbed out of a two-nil hole to tie FC Dallas 2-2

B.C. VIEWS: Making sense of climate policy

Flood and fire predictions have poor track record so far

Chilliwack Chiefs moving on to RBC Cup final after thrilling win over Ottawa

Kaden Pickering scored the winning goal in the 3rd period as Chilliwack won their semi-final 3-2.

VIDEO: As floodwaters recede, crews assess the damage to Grand Forks’ downtown

More than four dozen firefighters and building inspectors came out to help

Wellington Dukes pull off epic upset of Wenatchee at RBC Cup

The Dukes are off to the championship game after downing the Wild 2-1 Saturday at Prospera Centre.

Most Read