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ACLU Lawyer Esha Bhandari on Your Rights If Border Agents Try to Seize Your Cellphone at the Border

StoryMarch 16, 2017
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Esha Bhandari

staff attorney with the ACLU Speech, Privacy, and Technology Project. Her recent article on ACLU.org is titled "Can Border Agents Search Your Electronic Devices? It’s Complicated."

Border agents are increasingly seizing cellphones and demanding passwords of travelers, including U.S. citizens. The number of searches skyrocketed under President Obama, reaching 25,000 last year. But the number is expected to be far higher this year. According to NBC News, more than 5,000 devices were searched in February alone—that’s more than the entire number searched in all of 2015. For more, we speak with Esha Bhandari, staff attorney with the ACLU Speech, Privacy, and Technology Project. Her recent article is headlined "Can Border Agents Search Your Electronic Devices? It’s Complicated."


TRANSCRIPT
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn right now to look at another change at our nation’s borders. Border agents are increasingly seizing cellphones and demanding passwords of travelers, including U.S. citizens. The number of searches skyrocketed under President Obama, reaching 25,000 last year. But the number is expected to be far higher this year. According to NBC News, more than 5,000 devices were searched in February alone. That’s more than the entire number searched in all of 2015.

NERMEEN SHAIKH: Well, joining us now is Esha Bhandari, staff attorney, ACLU’s Speech, Privacy and Technology Project. She recently wrote an article titled "Can Border Agents Search Your Electronic Devices? It’s Complicated."

Welcome, Esha. So, could you explain? Why is it complicated? What exactly can border agents do?

ESHA BHANDARI: Sure. Thank you very much. This is an area where Customs and Border Protection has policies and asserts wide authority to search and seize devices at the border, and where courts have not really had the opportunity to fully test the limits of that authority. The legal question is unsettled. At the moment, CBP does claim the authority to search devices without any individualized suspicion—essentially, for no reason tied to that individual at all—and potentially to seize the device, you know, keep your smartphone for days or weeks on end, and, at that stage, has the ability to forensically search the device—again, without a warrant, without probable cause. And a forensic search is very invasive. It means they can gather not only the metadata on your device, all of the files, but even files you have deleted. So this obviously has huge privacy impacts, not only for travelers and immigrants to the United States, but every citizen who crosses our borders.

NERMEEN SHAIKH: But how different is—how different is this from what was happening under the Obama administration?

ESHA BHANDARI: Well, it’s very interesting that the last year of the Obama administration saw a fivefold increase in device searches. In 2015, there were around 4,000, 5,000 device searches; in 2016, nearly 24,000 device searches. And we haven’t gotten any clear answers on why. Has there been a shift in policy? What’s the reason that CBP is doing this at an ever greater number? Now, what’s interesting is, some of the courts who have looked at this and who haven’t required a higher standard under the Fourth Amendment for a search have said one of the practical protections is that CPB doesn’t have time to search everyone’s devices and to go through all their emails and their files. But obviously the huge increase that we saw in 2016 calls that into question, because device searches can be very quick.

AMY GOODMAN: What are your rights? If they say, "I want your passport," do you have to give it to—"your password," do you have to give it to them?

ESHA BHANDARI: Your rights depend very much on your immigration status, which I know is not a comforting response. But for citizens, citizens can certainly refuse to give their password. They have a right to re-enter the country. If they do, they face the risk that they will be detained for longer, maybe up to several hours, and that their device is seized, and they may not see it for days or weeks. So that’s a decision that everyone—you know, any U.S. citizen at the border has to take. Would they rather hand over their password, or would they rather refuse and face the risk that they lose their device?

AMY GOODMAN: What about cloud data?

ESHA BHANDARI: Well, with cloud data, I think the justification is even more attenuated from the sort of customs and immigration—the justification that CBP gives, because cloud data isn’t, in any meaningful sense, being transported across the border. There’s no importation of contraband, right? It’s just that your device connects to the internet, and you can connect to your social media account. So, you know, this is untested by the courts. But I really hope that the courts will see that demanding passwords to cloud data has no connection to customs and immigration at all. And it’s just an end run around domestic protections that require law enforcement to go through certain steps before they can get the contents of your emails or your cloud data.

AMY GOODMAN: And have you found it’s religious or racial profiling, who is getting their phones taken, though it’s a massive number?

ESHA BHANDARI: Well, we’ve certainly seen anecdotal accounts that it seems to be targeted on the basis of religion. We’ve heard a lot about Muslim Americans having their devices searched. But, unfortunately, without further detail on why these 24,000 devices were searched and who was searched, what nationality they had, it’s hard to know what the systematic issue is. And hopefully there will be more transparency about that.

AMY GOODMAN: Well, Esha Bhandari, we want to thank you for being with us, staff attorney for the ACLU’s Speech, Privacy and Technology Project. We will link to your article, "Can Border Agents Search Your Electronic Devices? It’s Complicated."

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we head to The Hague. Stay with us.

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