There have been reports of Customs and Border Protection (CBP) agents asking people entering the U.S. to unlock their electronic device and inspect it. More often than not, a refusal to hand over the device and passcode could result in it being seized and the person could be kept in physical detention for refusing to comply.

According to a recent Washington Post article, Sidd Bikkannavar, a U.S. citizen, returned to the U.S. in Houston, then was allegedly detained by CBP and was held until her told them the passcode to his government-issued smartphone used for work. Bikkannavar was presented with a document titled “Inspection of Electronic Devices” explaining that the CBP had the right to search his phone. He did not want to hand over the device because it belonged to NASA’s Jet Propulsion Laboratory. Even though the JPL barcode on the phone was shown to CBP they insisted on asking for the phone and access to the PIN.  Bikkannavar says he told CBP that he was not permitted to give the passcode out, but they said they had the authority to search it. After being given a listed series of consequences for failure to provide information that would allow a copy of the contents of the device, Bikkannavar agreed to provide the passcode and device to CBP.

A similar situation arose in Los Angeles when Haisam Elsharkawi was travelling to Saudi Arabia. The New York Times reported that Elsharkawi, an American citizen, was pressured by CBP officers who repeatedly pressured him to unlock his phone so that they could access his contacts, photos, and social media accounts. Eventually, Elsharkawi gave a Homeland Security agent access to his device.

These situations beg the question: is being forced to provide an electronic device and passcode to authorities simply based on suspicion an infringement upon civil liberties? American border agents are within their rights to conduct searches at the U.S. border without a judge’s approval; permitting them to search bags for the purpose of immigration or security compliance. This has now been extended to electronic devices.

Activists say that the search of a device is extremely intrusive because of a possible compromise of anyone else the owner has communicated with. Nathan Freed Wessler of the ACLU contends that “before government agents should be able to go rifling through a trove of private data, they should have a very good reason based on individualized suspicion of illegal activity.” He goes on to say, “People’s most private details of their lives will be made bare without justification.”

The Border Search of Electronic Devices, which gives border agents the right to search and seize devices, was implemented under the Obama administration and came under fire. A customs agency spokesman said agents had inspected 4,444 cellphones and 320 other electronic devices in 2015; 0.0012 percent of the 383 million arrivals. The searches of electronic devices rose significantly to 23,000 in 2016.

Agents cannot force a person to unlock a phone or a laptop, but they can ask for voluntary compliance and resisting can result in having the device confiscated or possible detainment. The device could be kept for weeks before it is returned. Agents can also copy data that must be destroyed if it is not valuable.

ALI Staff

The American Law Institute

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