Privacy vs. Protection: Warrantless Phone Searches at the Border

Episode Notes

Transcript

Digital Detectives

Privacy vs. Protection: Warrantless Phone Searches at the Border

12/29/2017

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Intro: Welcome to Digital Detectives, reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches; not theory, but practical information that you can use in your law practice, right here on the Legal Talk Network.

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Sharon D. Nelson: Welcome to the 86th edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises.

John W. Simek: And I am John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is EFF and the ACLU Challenge of Government’s Warrantless Searches of Phone and Laptops at the Border.

Sharon D. Nelson: Before we get started, I would like to thank our sponsors. We would like to thank our sponsor SiteLock, the global leader in website security solutions. Learn more at HYPERLINK “http://www.sitelock.com/legal/digitaldetectives”sitelock.com/legal/digitaldetectives.

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John W. Simek: Our guest today is Sophia Cope, a Staff Attorney at the Electronic Frontier Foundation. The nonprofit advocacy organization works at the intersection of civil liberties and technologies. Thanks for being with us today, Sophia.

Sophia Cope: Thanks for having me.

Sharon D. Nelson: Sophia start us out at the beginning here, who are the plaintiffs in the Al-Asad v. Nielsen case and what is your role in this case?

Sophia Cope: Sure, well, I am one of the lawyers that represents the plaintiff. We are working along with the ACLU to represent 11 plaintiffs. 10 are American citizens and one is a lawful permanent resident or a Green Card holder, and they come from all over the country and from different backgrounds we have a couple of journalists, the NASA engineer and a former Army captain to name a few. And all have their mobile devices searched and confiscated by border agents when returning to the U.S. from overseas travel.

John W. Simek: So tell us a little more, Sophia, like why are they in this lawsuit and who actually are they suing?

Sophia Cope: Sure, well, I will take the second question first. We are suing the Department of Homeland Security as well as its component agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement, also known as ICE. So this case really is about challenging what we see as an agreed invasion of personal privacy. Technology has changed the way we live in unprecedented ways. We all carry smartphones, laptops and other mobile devices when we travel, and of course they contain our entire life. So all the e-mails, text messages, photos, apps, et cetera that we have on our devices reveal highly personal information about us, so that could be our financial status, our medical conditions, our romantic interests, even of course our political belief. So we want to make sure that the government can’t access this information without any court oversight.

Sharon D. Nelson: Well, lawsuits have a number of possible goals but what’s the particular goal of this one?

Sophia Cope: Well, in short, we are asking for a warrant. Specifically we are asking that the Massachusetts District Court, which is where we filed the lawsuit rule that the First and Fourth Amendment to the U.S. Constitution require border agents, so CBP or ICE agents to obtain a warrant from a judge based on our findings that there is probable causes to believe that a device contains evidence of a violation of an immigration or custom law before searching a traveler’s device.

John W. Simek: Well, Sophia, I was in a merchant marine many, many years ago and sailed around, so I’ve had customs search on the ships and all that stuff, but can you tell our listeners a little more about what the rules for searching an — device searching at the border and what guidelines the government is currently following anyway?

Sophia Cope: Sure. So CBP and ICE are operating under an old Supreme Court interpretation of the Fourth Amendment which basically says that border agents can search travelers and their belongings at the border. So the border includes the land borders with Canada and Mexico or the equivalent of the border which are basically international airports as the first point of connection to the United States. But they can search these travelers at the border without a court order or any suspicion of wrongdoing. So they can conduct completely random searches of travelers’ belongings and even actually their persons so that’s why sometimes people go through pat-downs.

And our position is that, that rule makes sense for things like suitcases. We have our toiletries and our clothes in there. We might have a couple personal items but by and large the privacy interests in things like suitcases and backpacks are pretty minimal, and so that rule makes sense, but our position is that it doesn’t make sense for things like smartphones and laptops that can and do contain an unprecedented amount of highly sensitive information about us.

(00:04:58)

John W. Simek: Just a little follow-up on that. Is there any sort of a distance limitation at all for these searches? In other words, if you are driving home, can they stop you?

Sophia Cope: No, I mean, this rule is limited to the moment the person is attempting to reenter the United States. Now, sometimes we do hear about this hundred mile sort of range that agents have, but that’s — the Supreme Court has limited that mainly for immigrations enforcement so basically to catch undocumented folks who have crossed the border but weren’t actually caught at the border, and then there are higher standards that agents must follow to actually effectuate those kinds of stops and searches. So basically it’s a different area. It’s related but different area of law.

Sharon D. Nelson: Got you.

John W. Simek: Another one of those same things, but different.

Sharon D. Nelson: Yes.

John W. Simek: Well, before we move onto our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today, our topic is EFF and the ACLU Challenge Government’s Warrantless Searches of Phones and Laptops at the Border. Our guest today is Sophia Cope, a Staff Attorney at the Electronic Frontier Foundation.

Sophia, how prevalent are the searches and seizures of digital devices at the border, I know lawyers in particular, worry about it, but how prevalent are they?

Sophia Cope: So CBP released statistics recently for Fiscal Year 2017, so that was from basically fall of 2016 through the summer of this year, border agents conducted over 30,000 device searches and that according to CBP’s own numbers is six times the number of searches that they conducted for Fiscal Year 2012.

So we have — I mean that we’ve seen the trend increased dramatically. I mean, it’s obvious from CBP’s own numbers and even from just anecdotally in press reports it does seem like this is happening more frequently.

John W. Simek: Well, I know since a lot — hopefully a lot of folks have PINs or passwords or something that they’re locking their devices to stop access, but can you refuse to unlock those devices if the agent asks you to because they want to search through these things. I’m sure they don’t have a good sense of humor when it comes to that. So what kind of consequences could you expect?

Sophia Cope: Usually not.

John W. Simek: Yeah, certainly. I’m sure those consequences if you tell them, there’s no way in hell I am going to unlock that phone.

Sophia Cope: Yeah, so there’s one point of clarification I do want to make. So agents do have a right to inspect what we often say are the physical aspects of a device. So if they want to see, for example, whether or not there are hidden drugs in the battery compartment of a laptop, they can ask you to hand over your device and then they can look at or they can open the laptop and look at the physical aspects of it. Or if maybe you have some sort of blade or something hidden in your phone case.

So in terms of refusing to actually just physically turn over your device, you can’t do that otherwise that’s really going to be problematic in the first instance, because they do have a right to check the physical parts of the device.

John W. Simek: Right, right.

Sophia Cope: But in terms of refusing to unlock your phone or hand over your PIN or password, you actually do have a right to refuse but you really do have to think about what the consequences are.

Now, if you are an American citizen or a legal permanent resident, agents can’t refuse entry to you. So they can confiscate your device but they can’t say, okay, we’re not going to let you in unless you unlock your device. But, if you are a visitor or a foreign national to United States, yes, of course, you can refuse to unlock your device or provide your password, but then that really can end up being a ground for just outright refusal of entry.

And so, we really do encourage people to think about basically what their risk tolerance is. But, like I said, I mean, at the end of the day you can refuse to do that, but there are consequences and the most common one is confiscation for an extended period of time, for weeks or months even, because agents typically want to see if they can frankly crack the password.

(00:09:55)

So one of our clients actually had one of his cell phones confiscated earlier this year, and just recently got it back and so that’s — I think it turns out that that’s about a 10 or 11 months detention of his device, so it can be pretty significant.

John W. Simek: Wow.

Sharon D. Nelson: Well, not to use forbidden words, but is there any factually based reason to think that the government is targeting persons of color or Muslims?

Sophia Cope: Yeah, that’s a good question, it’s a tough question. So, unfortunately, after President Trump’s first travel ban went into effect in January, we did see anecdotal evidence that Muslims were being targeted for device searches. We received a lot of inquiries directly at EFF, ACLU did it as well, and of course, there are lots of news reports to that effect.

And in fact, a few of our clients are Muslim, but we don’t have any solid statistics on this, and DHS doesn’t, as far as we know, keep statistics, but Senators Wyden and Senator Paul actually have a bill, it’s called Protecting Data at the Border Act and fundamentally, it would require a warrant for device searches, but also what it would do is that it would require DHS to keep statistics on the perceived race and ethnicity of travelers who are subjected to these device searches.

Sharon D. Nelson: Oh, that would be great.

John W. Simek: So, Sophia, why should we consider the information that’s on our digital devices to be private? I’m sure there’s somebody in the government somewhere that says, well, it’s not private and that’s why we have a right to go after it.

Sophia Cope: Yeah, so it basically goes back to what I said earlier is that really modern and mobile devices contain the most intimate aspects of our lives, and they contain a lot of information too, not just talking about sort of the type of information but just a lot of information and that information can go back, not just a few days or weeks, but for years and even decades, depending on how long you’ve had, let’s say, like an email account, for example.

And importantly, we’re not arguing that the government can’t ever access this information, we’re just saying that the Fourth Amendment requires the government to meet a higher burden. And not again, is that they need to have probable cause that the device contains evidence related to a violation of an immigration or customs law. And that they have to go to a judge and convince the judge that they’ve met that burden and the judge has to sign off on these kinds of searches.

John W. Simek: That means you’re going to be detained at the border longer than right, potentially?

Sophia Cope: Well, that’s a great logistical question and so actually — so there’s sort of — there’s two answers or two responses to that. One is that the sort of method of getting a warrant itself has been enhanced by technology so in the interior of the country, police often can call judges or email judges and share their basis for probable cause and judges very quickly can sign off on warrants.

The other aspect of our lawsuit is that we’re actually arguing that confiscation of devices can happen without a warrant. There just has to be the underlying probable cause to believe that there’s relevant data on the device. And so, then that would mean of course that the device can be held without a warrant and then that would give the border agents time to go to the judge and say, okay, now can we get the warrant to do the actual search?

John W. Simek: Got you. Okay, well, before we move on to our last segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today, our topic is EFF and the ACLU Challenge Government’s Warrantless Searches of Phones and Laptops at the Border. Our guest today is Sophia Cope, a Staff Attorney at the Electronic Frontier Foundation.

So, Sophia, if the government searches my digital devices at the border, what happens to the data that is collected in that search?

Sophia Cope: That’s a great question and unfortunately, it’s hard to know specifically for any different traveler, but we can look at CBP and ICE’s policies themselves, and they state very explicitly that the agencies can freely share this data with other federal state local law enforcement agencies.

So it is really concerning that the border agents themselves at the border can see all of our personal information, but it is more concerning if they in fact go ahead and copy this information and share it with other agencies.

(00:15:04)

John W. Simek: Well, I know, Sophia, we lecture a lot on security and those types of things and how to protect your computers and mobile devices and all that, but specifically, as we’re going across the border, what would you tell our listeners would be some of the best ways to keep your digital devices safe from these searches?

Sophia Cope: Sure, so the short answer is, minimize the data you carry across the border and for the data you do carry, protect it. So that’s typically done with strong passwords and encryption.

But, there’s a big caveat to this. This advice really isn’t a one-size-fits-all piece of advice. What you do really does depend on your goals for entering the United States, your immigration status as I mentioned before and frankly your risk tolerance. So we published a Travel Guide in March of this year, 2017, that explains all the factors people should consider and the pros and cons of various data protection strategies.

It’s called Digital Privacy at the U.S. Border and you can find it on the EFF website,  HYPERLINK “http://www.eff.org” eff.org. And one point of caution though, the key thing that we tell everyone is don’t ever lie to federal agents or try to hide information, that can get you into serious trouble.

John W. Simek: That’s why Sharon carries bail money when we travel for me.

Sharon D. Nelson: For him, yes, please make sure to point that out. I have actually read that document, Sophia, and it’s really good. So I recommend that often and I know I’ve blogged about it, it really is a nice little guide and it’s a nice companion piece to what the New York Times wrote on the same subject. And the advice of the two documents side by side, it’s pretty much the same.

I’d like to thank you, both of us, for joining us today, this is a really fascinating case and we certainly believe that it was a case that needed to be brought, and hope that we get a little bit more protections around some of this stuff. But, your expertise here was invaluable, so thanks for making time to be with us.

Sophia Cope: Thank you so much. I really appreciate it.

John W. Simek: Well, that does it for this edition of Digital Detectives. And remember, you can subscribe to all the editions of this podcast at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us on Apple Podcasts.

Sharon D. Nelson: And you can find out more about Sensei’s digital forensics, technology and cybersecurity services at  HYPERLINK “http://www.senseient.com” senseient.com.

We will see you next time on Digital Detectives.

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Outro: Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com and in iTunes.