There have been reports recently of people coming into the United States from abroad, and being asked to unlock their phones or give their passwords to border agents.
Is that legal? If that happens to you, do you have to comply?
Here & Now‘s Meghna Chakrabarti talks with Orin Kerr ( @orinkerr), a law professor at George Washington University who specializes in computer crime law and digital evidence investigation, about rights to privacy at the border when it comes to devices.
Interview Highlights
On whether it’s legal for Border Patrol to ask you to unlock your phone
“It’s legal for them to ask, the real question is what happens if somebody says, ‘No.’”
“You probably don’t have to comply. There are no court cases that have actually tested this, so we really don’t know what the legal limits are on the government getting people to unlock their phones.”
On relevant case law
“They don’t even need a warrant. It’s clear the government does not need a warrant to search the phone based on a constitutional law, a set of cases called the Border Search Exceptions. So, ordinary rule, if the government wants to search your phone, they would need a search warrant, they’d need to go to a judge and say, ‘Hey judge, there’s probable cause to believe there’s evidence on this phone.’ They don’t need that at the border because of a long-standing exception to the constitutional doctrine under the Fourth Amendment that says, at the border, the government has special powers to search and seize. They basically… the government needs to know what’s coming into the country to look for things that are being smuggled in, or even what’s leaving the country. So some courts have said the government can search a computer without any suspicion. Other courts have said the government needs what’s called ‘reasonable suspicion.’ It’s basically the same cause that the government would need to stop somebody and question them on the street. And if they have that reasonable suspicion, it’s clear the government can conduct a search, even a very invasive forensic search of the phone. That doesn’t necessarily mean they can get someone’s help to do it, though. It just means they can search it if they can figure out a way to search the phone.”
On “reasonable suspicion”
“Yeah, ‘reasonable suspicion’ is not a very high standard, and you as the traveler won’t know if the government has that suspicion. So, they may have ‘reasonable suspicion’ when you don’t know it, and that means that you’re kind of not fully aware of what the government thinks at the time they’re searching a phone.”
On government justification for their right to open phones
“So the big counter argument is based on a Supreme Court case from 2014 called Riley v. California, in which the Supreme Court said that searching a cell phone is just different from searching a physical item. And in that case, the Supreme Court required a warrant to search a cell phone when somebody’s arrested, even though the traditional laws that when somebody’s arrested, the government is free to search their pockets, search their wallet, search through books that they may have on them. And the Supreme Court said computer searches are different, and the real question here is, how different are computer searches in the border search context? Some courts say, ‘Well, that requires extra suspicion to search a phone.’ Other courts say, ‘No, it’s actually the same thing.’ There’s just a lot of disagreement in the lower courts, and the Supreme Court has not yet taken this issue.”
On border patrol asking for passcodes to phones
“It’s actually, historically, been very uncommon for the Border Patrol to search phones or search computers. Many, many people cross the U.S. border all the time, every day, millions of people. And these sorts of searches are very rare, so that’s an important context. Whether that’s changing today with the Trump administration, we don’t really know. It’s really tough to go from these anecdotal reports to real data and knowing what’s actually changing.”
On a recent story involving a NASA scientist
“So there’s a bunch of different issues here, and let me take the lawyers’ approach and break them down. The first issue is, can they search the phone? And the answer is probably, if they can figure it out on their own, they can search the phone. The second question is, can they detain you until you hand over your passcode? They probably have some power to detain you for a little bit — maybe for an hour or two — not forever. They can’t hold at the border and say, ‘Alright, you’re living here until you hand over your passcode.’ And the question that’s uncertain is whether the law requires you to answer the question. There is a law that might apply and might require you to answer the question, but it’s not at all clear it applies in these situations. And even then, you’d be able to say, ‘Hey, I assert the Fifth Amendment privilege, I feel like I have a constitutional right not to answer,’ and that would then have to go before a judge to figure out whether that’s right. So, the government is asserting this power, we think, but it’s not clear how widely it’s being asserted, and the rules here are just really unclear.”
“You know it’s hard to give people legal advice over the radio. But this isn’t happening all that often and we don’t know, importantly, exactly what the government’s position is. We’re getting reports from individuals about conversations they had, and we’re getting one or two reports here and there. What I think we really need to know is, what is the actual policy the government is following? Once we know what that policy really is, then we can start talking about what are responses different people can take.”
Array
On how this applies to people who are not U.S. citizens
“If you’re a U.S. citizen or a legal permanent resident, the rules are the same, in terms of your constitutional rights. It’s an extra uncertainty if you’re, say, visiting from abroad. Ordinarily, we’d say the Constitution only gives constitutional rights to people that are legal citizens or permanent resident aliens. Except once they’ve landed in the United States, they may then have Fourth Amendment rights because they then have voluntary contacts with the United States. So, it may be that the government has more power in that context, but it may be that the rules are the same — we really don’t entirely know.”
On what steps are necessary to protect data
“It’s, I think, hard to say, you know, should people take the following steps, because you’d have to ask yourself, against what threat? The fear is that we’ve got a rogue government that’s violating all the constitutional rules and is searching people unfairly, is targeting political dissenters. Those are the anxieties. So, people might say, ‘Well, that’s how I see myself and so I will take these steps.’ The premise of the question is not yet clear, so I think it’s too early to say, you know, ‘We have to stop this.’ And to go back to the example of the NASA scientist. It may be that actually there have been anonymous reports about this NASA scientist and what he’s actually carrying on his phone. And maybe those reports are completely wrong, maybe they’re right, we don’t know. But this may actually be good government law enforcement steps rather than kind of a crazy situation. We just don’t know because we only get the one side of the story. So, it’s really hard to say from one case that this is the new world we’re in and this is how you should respond.”
On how the issue is decided
“The way things work out in the legal system is somebody would refuse to hand over their passcode. They might sue the government, or the government might bring an enforcement action against them. And then a court can figure out — ‘OK, let me work through how the law applies here.’ And so what happens is, the law gets clarified when the courts start saying, ‘Here’s something that happened, here’s how the law applies.’ We just don’t have those cases yet because these policies are new and encryption on iPhones is pretty new. And so we’re just starting to get these problems, and it takes the legal system a couple years for all the lawyers to get together and a lawsuit to be filed and a judge to make one decision and then the losing party is going to appeal. And it works it’s way up to the Supreme Court, and then five or ten years later the Supreme Court says, ‘OK, here’s the rule, here’s the law.’ And so, we just have a natural period of uncertainty until that happens.”
On what he would do if asked to unlock his phone at the border
“I teach constitutional criminal procedures, so I think I’m obligated to assert my Fifth Amendment rights and see what happens.”
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