Warrantless phone searches by US border agents are on the rise and expected to reach unprecedented numbers by the end of 2017 after skyrocketing throughout three years under President Donald Trump, new government data shows. And the acceleration indicates that device inspections are, lawyers say, increasingly a routine part of crossing into the country, despite continued legal and civil liberties debates.
New border device search numbers and their implications
Officers performed 14,876 “basic” device exams in the final quarter of the fiscal year, along with another 1,297 “advanced” searches that allow authorities to go through a phone after connecting it to what Wired has described as forensic tools for extracting data; those figures were first reported by multiple outlets including Wired and based on newly released Customs and Border Protection data. On a year-over-year basis, those quarterly tallies were up 29.3 percent for basic inspections and 12.4 percent for advanced ones. For the full fiscal year, CBP said device searches rose 18.1 percent.
CBP notes that these checks remain a small portion of travelers—less than 0.01% according to its tally. But at modern levels of passenger volumes, even a hundredth of 1 percent translates to tens of thousands of people whose communications, photos and location history can be teased apart, copied and stored.
Basic versus advanced device searches explained
There are two tiers under CBP policy. A primary search is turning off the device to manually look at the device. A more sophisticated search requires specialist software to access, copy and examine data. Pursuant to CBP’s 2018 directive, the secondary searches are supposed to be reserved for cases involving reasonable suspicion and have supervisory approval, and the devices are supposed to be in airplane mode so they can’t be accessed from afar. The point is – once imaged, data can go well beyond the inspection booth.
Lawmakers and watchdogs have scrutinized the what’s next. In a Senate oversight letter written in recent years, it was disclosed that some of the extracted data could also be kept within government systems for as long as 15 years and tested or queried by thousands of authorized personnel. The Department of Homeland Security’s inspector general has also criticized inconsistent auditing and documentation around digital searches. Those are the types of issues that can turn a temporary stop into a long-tail privacy risk.
The Legal Landscape And Tension With Privacy
The border has its own set of legal rules. Courts have established a “border search” exception that allows officers more leeway than interior police. Smartphones complicate that framework. The Supreme Court in its landmark Riley decision held that the “immense storage capacity” of a phone justifies enhanced privacy at home, but it has not squarely applied that reasoning to the border.
Lower courts are split. The First Circuit has affirmed suspicionless basic searches, and the Ninth Circuit had proposed constraints based on particular contraband. Civil liberties organizations including the A.C.L.U. and Electronic Frontier Foundation contend that warrantless digital dragnets defy what modern American privacy should look like. Until the Supreme Court or Congress draws clearer lines, policy will be formed piecemeal by agency directives and regional rulings.
Why border device searches are rising in the United States
CBP credits a combination of factors: criminal investigations, export control enforcement, human trafficking probes and intelligence-driven targeting. Periodic spikes in travel and broader use of analytics can also bump the numbers. On the technology front, it is far easier now for law enforcement to do so, thanks not only to Cellebrite but also to other mobile forensics vendors like Grayshift; advanced extraction has become not just faster but within reach as an operational matter in running deep exams.
But the more capability an item has, the greater the pressure to use it. In the absence of consistent external supervision, agencies can develop a habit for invasive practices that were once exceptional — particularly under headline metrics that reward activity and not restraint.
The Nitty-Gritty For Cross-Border Adventuring
Security experts and privacy activists are coming together around one central piece of advice: Don’t travel with data you cannot bear to lose. The safest way is to bring as minimal a device as possible, or “clean,” and then restore what you need from clean backups after you arrive. For business travelers, loaner phones and laptops are commonplace even at many businesses.
Before travel, turn off devices completely, sign out of sensitive accounts and switch off biometric unlock in favor of a strong passcode. Know your rights: In general, US citizens have the right to refuse to disclose a passcode when arriving in the US and not be denied entry; however, their devices can still be detained and they may face delays. Non-citizens may face harsher consequences. For those instances when a device is seized, ask for a receipt and write down information about the officer; an attorney afterwards can challenge whether something was copied or retained.
What to watch next in border device search policy
Look for new pressure in Congress to define rules for warrants, suspicion thresholds and the retention of data, as well as a push for transparency on how many searches lead to actionable results. Watchdogs will pressure DHS and CBP to beef up auditing and access controls. And so long as the courts do not intervene with a decisive decision, the trend lines — now rising at double-digit rates — are likely to continue to rise.