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Practical Techie: Can the government take away my cellphone?

Legal questions abound on how much authority US customs agents have to seize and dig into a traveler’s smartphone, laptop, and tablets at airports, seaports, or border zones.

As we shall examine in this chronology, judicial rulings tend to move back and forward on how much leeway the agents may have when reviewing a traveler’s data.

Not all frisked travelers are suspect contrabandists. Journalists, political activists, lawyers, and people in certain religious and ethnic groups have reported being told to hand over their devices, thus confiscated for weeks or months.

For most people, it’s a question of privacy as intimate details fall into the hands of the US government.

2019 — For years, the US Department of Homeland Security (DHS) agents were allowed to search devices without a warrant. In 2018, the agency searched more than 33,000 devices, compared to 30,200 searches in 2017 and just 4,764 searches in 2015.

Civil rights advocates have argued against this kind of surveillance, saying it violates people’s privacy rights. A federal court found the practice unconstitutional in November 2019. Judge Casper of the US District Court for the District of Massachusetts held that suspicionless searches violate the Fourth Amendment.

2020 — That year, the US Department of Homeland Security released a report about how much data border patrol agents can legally pull from phones and computers. The DHS detailed its so-called “Patrol Digital Forensics” program in a Privacy Impact Assessment, specificying which data can be pulled from electronic devices.

The report highlights that agents can create an exact copy of data on devices to include call logs, IP addresses, calendar events, GPS locations, and emails. Also, social media information, cell sites culled from the device’s use, the phone numbers in the contact list, videos, and images. User names and aliases, text or chat messages, and data on financial accounts and transactions are not left out. A hefty fare.

According to the report, the outstanding policy is that the DHS can retain the acquired information for 75 years. Specifically in the agency’s digital forensics network, and transferred to PenLink PLX, a surveillance software that helps manage metadata taken from devices.

2021 — Now, according to a 9th Circuit Court in San Francisco, a confiscation scenario is not only possible but completely legal. This ruling was sustained in 2021 by the 1st US Circuit Court of Appeals in Boston, which includes Puerto Rico in its jurisdiction. Allowed data searches are classified as “basic” and “advanced” when there is a reasonable suspicion of a crime.  

Lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation argue that such practices contradict the Fourth Amendment against unreasonable searches and seizures and their First Amendment’s free speech rights.

2022 – Critics say that the policy is too broad to protect against terrorism. They say that federal agents can search electronic devices for evidence of any suspícion at all.

Civil rights activists seek to limit warrantless searches in border zones. That is, narrow the ability of border officers to conduct warrantless searches of cellphones carried by international travelers. The goal is to stem the kind of fishing expeditions for intelligence or evidence of a crime — past or future — whether border-related or not.

According to The Washington Post, several international businesses are changing their policies on international travel. They are urging executives to avoid storing confidential business information on laptops when traveling to the United States in the fear that it will compromise critical, proprietary information.

SIDESTEPS — While attempting to hide information from border agents can complicate matters, experts advise some practical or technical measures to get around the system.

One is leaving your electronics at home when you leave and return to the country. Store private information on a separate device like a smart card or flash drive and keep it on your person when arriving. Also, partitioning your hard drive using two levels of encryption.

Otherwise, wipe your electronics clean and store all sensitive information on a virtual private network or the cloud.

Author Details
Author Rafael Matos is a veteran journalist, a professor of digital narratives and university mentor. He may be contacted at cccrafael@gmail.com.

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