Increased security at US airports has people worried about the security of their mobile devices. But can the Transportation Security Administration (TSA) take and search your phone?
Let’s explore if airport security can search your phone, and what to expect if they can.
Don’t Fear the TSA—Fear the CPB
First, let’s talk about who might be looking at your phone. TSA protects transportation systems: they scan your luggage, ensure your ticket is valid, and provide airport security. The only reason they might be interested in your phone is if it looks suspicious.
The US Customs and Border Protection (CBP), on the other hand, is a different story. This organization exists to “safeguard America’s borders, thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”
In short, they want to keep terrorists out, as well as enforce agricultural laws and similar statutes that limit what people can bring into the country. As such, they’re going to be interested in your phone.
CBP Is Interested in Your Intentions
So why is CBP interested in your phone? Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner, puts it simply: “Electronic device searches are integral in some cases to determining an individual’s intentions upon entering the United States.”
The CBP says searching cell phones going through airport security is crucial in supporting investigations of national security. This includes child pornography, human trafficking, visa fraud, export violations, and intellectual property rights violations.
What sorts of things will the CBP look at if they decide to search your phone? Contacts, messages, social media accounts, photos, and apps are fair game. If a border agent suspects you might be coming into the country with ill intentions, they’re going to use any means they can to determine whether that suspicion is well-founded.
Exactly what contacts, messages, or apps might warrant a further investigation isn’t clear. It’s up to the border agent to decide whether you should be detained or denied entry.
Phone Searches and Seizures Are Rare
The most recent statistics on phone seizures come from the CBP website. They reported the searches they performed in 2016 and 2017, which includes 186 million and 189 million arrivals, respectively.
As we can see, the number of searches did almost double in the space of a year. Compared to the total amount of arrivals, however, this is still a minuscule amount of people and shows how rare these searches are.
Of course, there are many stories of people seemingly targeted for their ethnicity or home country for unreasonable searches. While rare, people that fit specific stereotypes can go through searches more often than others.
What CBP Can Do Isn’t Wholly Understood
Exactly what Customs and Border Protection can do with your phone isn’t always clear-cut. They can, for example, search it, and they can also copy the data for later perusal. They can’t keep the data for very long, and they’re required to delete it if it’s not related to a legal investigation.
In some states, agents need to have a reasonable suspicion of criminal wrongdoing to run a full forensic search on your phone, but not to quickly flip through your photos, messages, and so forth.
CBP also reserves the right to detain your phone for up to five days, though they can extend this duration. There are reports of some seizures lasting for weeks or months.
The legal rights of CBP are often contested and sometimes ill-defined. In general, though, they can look through your phone, hold it for closer inspection, and send it off for a full forensic examination. That examination could come up with things you’ve deleted or didn’t know were on your phone.
Unlocking Your Phone Isn’t Required, but Helpful
The extent of your rights when subject to search and seizure sees a lot of debate. There are Constitutional protections in place that prohibit unreasonable searches, but they’re often loosely interpreted at the border.
However, there are a few certain things. First of all, if you’re a U.S. citizen, you can’t be denied entry into the country for refusing to unlock your phone. That doesn’t mean they can’t detain you, though. You might find yourself facing a great deal of inconvenience if you don’t unlock your phone. Whether it’s worth it is up to you.
Non-citizens won’t find the same protection. The CBP can deny you entry if you don’t unlock your phone, and you don’t need to hail from a country considered hostile. A Canadian reporter was denied entry in November 2016 when he refused to unlock his phone to protect confidential sources.
This brings up an interesting point: can you refuse to unlock your device because you have legally privileged and confidential information? Journalists, doctors, and lawyers might consider this question.
Unfortunately, there’s no clear answer. CBP says it will tread carefully in these situations. Other organizations aren’t so happy with its implementation. You can always tell the agent that you have confidential, privileged information. But it might not get you anywhere.
The other legal option you have is to call a lawyer. It’s important to note that, while groups like the ACLU often recommend this, it’s going to make the border agent suspicious immediately.
You’re likely to spend a lot longer at the border, and it’s going to be an unpleasant fight. You also have to pay for that lawyer, as the government isn’t required to provide one like they are in a courtroom situation.
Protecting Yourself Is Good, but May Raise Suspicions
There are ways to defend your privacy at the border if you’re nervous about CBP searching your phone. However, these actions might raise the suspicions of border agents.
If you think of it from the CBP’s point of view, being a privacy advocate looks like you have something to hide. The motto “nothing to hide, nothing to fear” plays a role in surveillance, and the CBP may get interested as to why you’re keeping your information secret.
That said, if you want to keep their eyes off of your data, it’s a good idea not to have much data on your phone when you travel. Switching your SIM over to a burner phone is easy, and keeps all of your private information elsewhere.
You can also backup and wipe your phone before you travel. That way, CBP will only see a blank slate and can’t invade your privacy. When you come home, load the backup onto your phone and enjoy it as normal.
Fully encrypting your device will make copies less useful, and keeping sensitive documents and photos in the cloud instead of on your device makes them harder to get to.
Again, remember that these actions might raise the suspicions of border agents. That doesn’t mean it isn’t worth doing—just remember that you’re making a trade-off.
Keeping Yourself Safe From Surveillance
So, can the TSA go through your phone? No, not unless they think it endangers the transportation system.
CBP, on the other hand, is a different story. They have extensive rights that are important for protecting the United States and its citizens. That doesn’t mean they always use them in ethical ways—but it does mean they’re unlikely to lose those rights anytime soon.
So it’s best to prepare yourself. Keep as little data as possible on your phone, encrypt it, and consider traveling with a burner. Expect to raise border agents’ suspicions, but know that they can’t deny you entry if you’re a citizen.
When you’re ready to protect yourself from surveillance fully, be sure to read about how to protect yourself from unethical and illegal spying.