"It’s totally legal for a US Customs and Border Patrol officer to ask you to unlock your phone and hand it over to them. And they can detain you indefinitely if you don’t. Even if you’re a American citizen. [...] Barring the use of “excessive force,” agents can do whatever they want to you."
and
"[I]t’s illegal in most countries to profile individual travelers"
I don't think any of these things is accurate. Although courts have been extraordinarily deferential to customs authorities, they've also ruled that many things done in the name of border enforcement were unreasonable!
Fortunately I'm working with some lawyers on a new version of a border search guide, so hopefully we can get some informed legal information out there.
Here's the problem with after-the-fact rulings, or even with trying to call that out if you get stopped like this..
Most people who cross a border are on their way somewhere and have a limited window of time to spend at the border until the delay incurs a very unreasonable financial or scheduling hardship..
Either missing a flight, or hotel, or vacation booking, or business meeting, etc..
So while you may be within your rights to argue and resist these unreasonable searches, they come at a price that border control knows/expects most people will not be prepared to pay.
It's not that I don't believe you but there are numerous examples of Canadians who have been denied entry to the United States because they refused to allow CBP to access digital devices or they allowed it but had 'incriminating evidence' like Muslim prayer videos or photos taken from areas in conflict as part of photojournalist work.
Also afaik, the ACLU has lost cases pertaining to defending liberties at the border
The border situation is very difficult. (If you do have "numerous examples" of that, please let me know, because it's relevant to our writing and legal analysis. I care a lot about this, but I don't want anyone to get the wrong intuition about how frequent or infrequent a particular scenario or, as the lawyers say, fact pattern is. Maybe in the second case you're thinking specifically of Laura Poitras's experiences, or do you have some other cases in mind?)
I also agree that some border and immigration challenges are lost in court and that it's a legally difficult context in which to defend individual rights, and I was responding to the article's claim that the only court-recognized limit is "excessive force", which is unnecessarily pessimistic.
But whether it's legal or not, a traveler has no power over a border agent. By the time you've gotten any help, whatever your itinerary was is already wrecked.
> This may upset Customs and Border Patrol agents, who are probably smart enough to realize that 85% of Americans now have smart phones, and probably 100% of the Americans who travel internationally have smart phones. They may choose to detain you anyway, and force you to give them passwords to various accounts manually. But there’s no easy way for them to know which services you use and which services you don’t use, or whether you have multiple accounts.
You can be damn sure the government has a list of possible email addresses associated to individuals. That'd be be the first thing any modern SIGINT program would compose so as to link accounts. Assuming they have that (which again I'm assuming they do) it's trivially easy for them to go from "John Q. Citizen / SSN: 123-45-6789 / Podunk, USA" to a set of emails to cross reference against service providers.
Add five minutes in a dark room with piece of hose and... well you know the rest.
>You can be damn sure the government has a list of possible email addresses associated to individuals.
things the government knows, and things that a CBP agent knows, are not the same thing. They NSA doesn't just provide their database to all the hundreds of thousands of front-line law enforcement agents. If you're being specifically targeted for some reason, enforcement agencies might be provided with a history of your social media activity, but it's unlikely that they can just pull it up when they type in your drivers license number.
When you say parent is wrong, you're saying that the 100k border patrol grunts can access NSA data easily, which is not the case. So you are the wrong one.
This doesn't give other agencies the ability to just grab any NSA data. It just means the NSA doesn't have to filter data before passing it on.
Could you imagine if it were that easy to get info on any citizen? What's to stop a spy/traitor from becoming a border patrol guard, downloading all the info and selling it?
You can always claim that you don't know the password because you use an offline password manager that you don't have with you. Also, use 2 factor authentication of course.
It is so easy for the 'bad guys' to carry a burner phone with fake google, Facebook, twitter, etc, accounts and log into them when requested. That way they don't have to refuse anything and there is nothing suspicious. This policy harms law abiding citizens and travelers but is completely ineffective when it comes to stopping criminals.
The majority of "criminals" CBP deals with each day are people coming in on the wrong visa. Saying tourist but having no plans to leave, or planning to work, for example. This system will be very effective there: Turn on phone, see text "baby can't wait for you, we're finally gonna be living together", question why their boyfriend is writing them that and why they didn't mention it, deny entry.
I don't think anyone really believes it'll catch a ton of "good to have you here, the bomb is ready"- or "whew so nervous carrying these 50 pounds of contraband!"-bad guys.
Also I'd slightly question the ease of creating burner accounts. Facebook will show your sign up date, and something too recent will be suspicious. Other things like "why don't you have pictures of your FB friends on your phone" and on and on could be clues to a fake account. Not saying it's really hard, but it's not something you'll whip together a week before your trip.
How many of the 40 million should we put off traveling here to catch a fraction of the 500,000? What ratio of turned away violators to hassled travelers is "very effective"?
> You can be damn sure the government has a list of possible email addresses
Hell, I've already gotten more email from the current administration than I ever got from Obama, Clinton & Sanders combined, and I'm a confirmed lefty.
... really? Can you expand on that? In my country, the government is not in the habit of sending out emails, largely so that they can tell people to disregard any email that claims to be from the government, as it's usually a scammer.
Not sure how I feel about that. It sounds fucked up, like propaganda, but it can be interpreted positively as well. They're keeping in touch with the electorate and keeping them informed. Dunno.
I'm thinking not bringing the phone or deleting all apps before landing won't help much if they ask you to login into your accounts on a computer (or stay detained for hours if you refuse or claim that you don't use facebook/email, your pick).
All these cases always seem to boil down to what should be a very old precedent: is an officer of the law allowed to demand that you contact an associate to which you've entrusted a possession, and tell them to send it to you?
Assuming that the law has no legal power to compel the associate to co-operate, is it then legal for said officer of the law to detain you if said associate—just of their own accord—decides not to cooperate?
(For example: I put all my money in a Russian bank. An IRS officer demands that I retrieve it so they can tax it. The Russian bank says that its policies prevent it from sending money to people who are making requests under duress, and so nothing I could say or do at that point would ever make them send the money. The US has no treaty enabling them to go through diplomatic channels to put pressure on the Russian bank. What happens?)
Can they even ask you to do that? My understanding was searching your phone is allowed because that's treated similarly to searching your luggage. But you're not carrying your facebook or email accounts with you, so I don't see why they'd have any right whatsoever to demand to "search" your facebook/email.
Or is this something they've already started doing? And if so, what makes it legal?
This is a whole other level though, because at that point you're no longer talking about inspecting physical property, and I think this kind of situation would be more precarious and much more likely to set unfavourable precedent should the affected traveler decide to sue.
I wonder how possible it would be to create a jailed environment on Android or iOS that can not access any of the data on your phone and could be entered by putting in a false password. That would allow you to enter your "password" on-demand and then only present a jailed process to those seeking to violate your privacy. It could appear to be a full experience, but not actually contain any personal data, or contain false data.
I imagine it would be illegal, but there may be a market for it.
A big flaw of deniable encryption software is that it's only used by people who use the deniable part, so its use strongly suggests the existence of such hidden data. Whether or not that's sufficient to detain someone and demand that they produce the additional password will vary depending on various jurisdictions' laws, but I personally wouldn't tempt fate with it.
Yes, we need this as a feature of iOS and Android. Type one password - decrypt a clean version of your phone. Type another password or use a different fingerprint - decrypt another version of your phone. They'd have to make it so you can't tell the difference between a phone with a deniable section versus one that does.
it's the same with a phone that underwent factory reset during the walk from the plane to the first customs officer... you're suspect either way. similar with not having a phone at all - pretty much everybody who can afford to fly halfway across the world should be able to afford a phone. don't have one? suspect.
In the Android world there exists a system called MultiROM, it allows you to have multiple ROMs installed on your phone with separate data partitions.
You could theoretically load one ROM up with all your personal data (and have it encrypted) then have another for customs usage, just boot it up before you reach the agent. Remember to load it with plausible data to prevent any suspicions and you should be good to go.
The odds of the border agent messing around in your recovery to boot the other ROM... I'd say fairly low.
This may be a practical solution today for people who want privacy at the border.
I don't think border security agents are dumping your entire flash - they're mostly just say, thumbing through messages to make sure you're not attempting to work illegally while on a vacation visa.
Dumping your entire flash would take a serious amount of time and would be so varied from device to device that it'd likely be impossible in practice.
Why would it be illegal? They told you to put in your password, and you put in one of your passwords. If they want to fuck with technology and they're too stupid to understand it, that's their loss.
It's illegal because the primary function of the modern legal system is to protect the status quo powers. It's hard to outsmart a system when its whole purpose is to mitigate cleverness!
The best you can do is make the process as frictionless as possible for the border thugs, to get them to mislead themselves. For instance, imagine encrypted steganographic storage that seamlessly unlocks with a key retrieved from a remote server. If a GPS fix says you're in a dangerous area (eg border crossing), the server only unlocks the uninteresting bits [0]. A connection from your home network and/or designated third party is then required to switch the server's mode back to supplying full functionality.
And this needs to become the default mode of operation for a sizable chunk of phones, so that the "intent" bullshit becomes inapplicable. This is how the legal system works - you can only obtain safety through technical means en masse. Yes, we have a long hill to climb.
[0] Obviously this is trusting the phone and could be spoofed, but this isn't the threat model. The point is to make the behavior change passively.
Well, most likely because things like "obstruction of justice" are crimes.
I don't really get the notion that the law works like Airbud, where the rules have to be specific and anything not banned is permitted. It's totally possible to criminalize subjective things like "trying to trick us" which apply even if the means used are novel and not banned.
They aren't all too stupid to understand it, which would be why it would eventually be illegal to use such technology to deceive border patrol or other agents of the lawful government.
The Blackphone is supposed to have profiles that are separated from each other so that data isn't accessible across profiles at the hardware level. If that were obfuscated, then that might help. Of course, just having a Blackphone will probably get you targeted anyway and they will already know about its capabilities.
So sad that the best answer we have currently is to take the same technology that aids us in navigating unfamiliar cities, helps us translate other languages and connects us to our family, friends and colleagues in a myriad of ways, and just leave it at home.
He mentioned other countries moving towards this kind of thing, and if you look around then that wouldn't be surprising for places like the UK as well.
Canada also makes it illegal to import various pornographic materials depicting drawings of fictional characters, and certain sex dolls. An American had his laptop searched at ths Canadian border, and was detained, for example.
The UK has has their citizens to unlock devices and provide encryption keys upon demand for years, it's not limited to airports and they're not allowed to tell anyone it happened.
We're really talking about access to accounts (e.g. gmail), not the devices themselves (or the former is of more interest, anyway). What's to stop these agents from simply demanding you turn over your email/facebook/whatever credentials, regardless of whether you're carrying electronics on your person?
IIRC they're actually already demanding Facebook credentials from certain travelers.
Unless you literally have no internet accounts, or what you do use is obscure enough to give you plausible deniability, it seems like you're fucked either way.
Well, you've stated the solution. Don't have a gmail account. Don't have a facebook account. Don't use centralized services. It's not that hard once you start.
Can someone clarify how if I can be compelled to unlock my password protected phone, they can't do the same with my social media, email, and other accounts? I feel like this author advocates for a stop-gap that may not even help in the long-run.
Sorry, my question was can they do that for my account information as well? Could they setup kiosks for me to sign into Facebook? The author in the post advocated uploading my data into the cloud and factory resetting my phone, though I don't believe this will work if they can just ask me for my Facebook.
The author is arguing that they wouldn't know the usernames or even the services themselves of your accounts and as such could not ask for them. I call bullshit on that (see my top level comment on this).
If you have 2FA then some of those accounts may not be accessible without your phone. For instance, if I didn't bring my phone with me (which I use to authenticate) I wouldn't even be able to log in to my email.
Or, taken a little further, I don't even know my email password anyways. Its locked in a password manager which requires 2FA. I would myself be locked out of almost all of my accounts if I didn't bring my phone.
This is addressed a bit in the article. You can just tell them "I don't have a Facebook account", and there's really no easy way for them to verify this. If you're extra paranoid, you can create secondary accounts without much info and innocent posts/messages. There's no way for them to know you're logging into your border patrol FB account and not your "real" account.
Supposing all this is true, and you leave your phone/laptop at home, what stops the the border control agent from demanding that you log in to your email and social media accounts on a device they provide before allowing entry?
It looks like it is going to be a new norm in the name of "security" - across the globe, not just US (or UK, or Canada...). Doesn't it point to something much more troublesome than what it seems? Thinking about the real motive, the root cause of all this kind of stuff (mass surveillance, security issues, privacy wars, encryption need, etc.), I could see no other reason than a flawed nature of human - the greed of power and sustaining it. You can do many kinds of tricks like wiping your devices, using multiple (fake) accounts, leaving your electronic devices at home while travelling and etc. But what if the using a smart phone, having a FB account become a mandatory thing by law in a couple years? That doesn't sound irrelevant now. It's a passing game between security forces, government(s) and wealthy people - they watch for each other's interests. I don't know if it sounds senseful to you. If it is, how do we fight that?
You most likely will need your phone when you're traveling, an easier solution is to remove all apps and data on the phone and then reinstall when you get to where you want.
I suppose an interesting form of DoS protest would be to have a large group of people refuse to unlock their phones and take up all of the space in the customs holding cells.
Good luck with that, since most people crossing the border aren't asked to unlock their phones in the first place.
If you have any doubts about that, you should visit a US-Canada border crossing. The overwhelming majority of travelers are not subjected to through inspection.
To a free country? The US has lost so many cogs of its democracy... How far is the day when some US citizen (journalists, intellectuals) start begging for political asylum in countries that don't pride themselves for being free (like Russia, Iran, Thailand or just even Europe)?
Really? Seems like a pretty silly conclusion. If you have important stuff on your phone, you should back it up. If you back it up it's not a deal to wipe it.
Wipe it, restore after crossing the border, it's not really a big deal.
Wouldn't it be equally weird to not have a phone on you on a flight or an international flight? Meaning merely suggesting that you don't have a phone with you I think would cause more/similar trouble.
There is a lot of misinformation and jumping to conclusions in the article. The US border is not outside of US jurisdiction. A search warrant is not needed to search either a citizen or non citizen from entering the US. They can take your phone, but they cannot deny entry to a US citizen for refusing to unlock a phone. They can deny entry to a non US citizen for any reason at all, including failing to unlock a phone or provide a password.
>"The border is technically outside of US jurisdiction"
IANAL but reading other articles on this topic I don't think this is true - I think it's just that the 4th amendment rights that all searches and seizes have to be with done with warrant or probable cause are suspended at border due to doctrine of "border search exception".
"They may choose to detain you anyway, and force you to give them passwords to various accounts manually. But there’s no easy way for them to know which services you use and which services you don’t use, or whether you have multiple accounts."
Hah, I do, and I'm actually going up to Canada tomorrow with both phone and camera. I've never had an issue at the border where they've gone through my digital devices, however.
Am I the only one who assumes that they have access to all this stuff anyway. I guessed that they just want to tie the imei to you to make tracking easier.
> But before we do, take a moment to think about all the apps you have on your phone. Email? Facebook? Dropbox? Your browser? Signal? The history of everything you’ve ever done — everything you’ve ever searched, and everything you’ve ever said to anyone — is right there in those apps.
If you personally do not care about your privacy, why should someone else care?
Your particular risk model may or may not include CBP, both others' might. Immigration lawyers (for whom attorney-client privilege should hold), immigration NGO workers (for whom it almost certainly doesn't), journalists, asylees, among others.
The protections which apply to you also apply to them, and aren't granted conditionally. Which is why, if you believe in civil liberties, liberal democracy, and freedom, you should fight like motherfucking hell for them.
I mean, this whole thing sucks, but I can't think of any apps that I'd actually go through the inconvenience of uninstalling just so someone at border patrol can't see them, including "treasure troves" like Gmail/Drive. I'll just unlock my phone, let them look for whatever they're looking for, and carry on with my life.
It's an invasion of privacy (to what extent is debatable, but I'd rather not make a stance there), but so is going through my luggage, x-rays, etc. I understand why they're there, and I have a tiny twinge of "what if they find something weird" every time I go through the airport, but I also trust the system (again, to some extent) and recognize why these processes exist.
Fun fact: I've accidentally tried to go through security post-9/11 with a half-dozen hunting knives in my carry-on (after a camping trip) and they were very concerned at first, but just asked some questions, told me to throw them out, and let me through.
Saying "if you've got nothing to hide, why worry?" is a trope by now, but I'm clearly not the person they're looking for and I'm not too worried about a mild, temporary inconvenience if they mistake me for a Bad Guy.
Very interesting read. Shocking how G+ moves from "hey, you don't need to manage 100 logins" to "Hey shady people, come siphon data from people that don't understand privacy".
The Android ecosystem had already gone down that rabbit hole years ago. I think we're at the stage where it doesn't seem like a commercial identity provider is going to look out for our privacy at all. Definitely a challenging space, but one where we can wrestle back a lot of privacy we've lost.
