WE’VE ALL HAD that invasive moment when, after handing our cellphone to someone to share a photo, they start swiping through our entire camera roll. Now imagine an airport customs agent doing the same thing — through your entire phone.
In recent weeks, some airline passengers have shared stories of being pressured by United States Customs and Border Protection (CBP) officials to reveal passcodes for their cellphones. One man, traveling to Saudi Arabia from Los Angeles, was questioned, detained for three hours, and forced to unlock his phone. In Houston, a NASA engineer returning from Chile had to hand over the PIN number for his work-issued phone, exposing potentially sensitive information. In both cases, refusal to comply could have led to the phones being confiscated.
US Senator Ron Wyden wants this to stop. He plans to introduce legislation preventing agents from forcing passengers to reveal cellphone passcodes or online account passwords without a warrant. Such searches, the Oregon Democrat said in a Feb. 20 letter to Department of Homeland Security Secretary John F. Kelly, “weaken our national and economic security” and “distract CBP from its core mission and needlessly divert agency resources away from those who truly threaten our nation.” Wyden also asks how many similar searches occurred between 2012 and 2016, compared with those carried out since Jan. 20, 2017, when Donald Trump was sworn in as president of the United States.
It may surprise many that digital device searches at our borders did not begin with the Trump administration. In 2009, when President Obama was less than a year into his first term, DHS issued a 51-page report, “Privacy Impact Assessment for the Border Searches of Electronic Devices,” which states that devices carried by travelers crossing the US border are subject to searches. Yet DHS now wants to up the ante by giving customs and border agents the right to demand specific access to social media passwords and accounts.
For better or worse, our lives are in our phones. They are diaries, photo albums, appointment books, bank records, and verbatim conversations we have with spouses, friends, or co-workers. Diving into someone’s cellphone isn’t equal to searching a briefcase; given the amount of available information, it is more akin to a home search. That’s doubly true when it comes to scanning someone’s Facebook page or Twitter feed.
“With those passwords, CBP may then be able to log in to accounts and access data that they would otherwise only be able to get from Internet companies with a warrant,” Wyden says in his letter to Kelly.
Everyone is concerned about terrorism and public safety, but this should never be misconstrued by the Trump administration as an invitation to circumvent the Fourth Amendment, which protects against unreasonable search and seizure. In a 2014 case hailed by digital privacy advocates for its potentially broader applications, the Supreme Court ruled that police must have a warrant before searching a suspect’s cellphone. Writing for the majority, Chief Justice John Roberts said that while technology permits people to carry in their pockets what he called “the privacies of life,” it does not mean such information is “any less worthy of the protection for which the Founders fought.”
That’s something this administration should keep in mind. Wyden’s proposal should be a slam-dunk — no one wants to be forced to reveal the contents of their cellphone or social media musings. Yet nothing is ever easy with a Congress that would rather obstruct than legislate. What’s at stake is our right to privacy and its constitutional protections. And that should never be a partisan issue.