I am travelling to the US soon. I go there regularly for work. Reason magazine has this article. Worth a read:
Border phone searches are in the news a lot lately. Last month, a French scientist was allegedly blocked from coming to a conference in Houston after U.S. Customs and Border Protection (CBP) found statements against President Donald Trump on his phone. A few days later, Brown University doctor Rasha Alawieh was turned away at the airport after CBP allegedly found pro-Hezbollah images on her phone.
How does CBP have the power to rummage through phones so easily? After all, ordinary police can’t just stop you on the street and search your phone without a warrant. But courts have recognized a border exemption to the Fourth Amendment, allowing the government to conduct routine anti-smuggling searches of travelers. Although some lower courts have weighed in on whether that exemption applies to personal electronic files, there’s no definitive ruling yet on phone searches at the border.
Until the Supreme Court rules on the issue, CBP officers are mostly limited by the agency’s own internal regulations. The regulations allow officers to conduct a “basic search” (flipping through the phone by hand) at their discretion, and require “reasonable suspicion” or a “national security concern” to conduct an “advanced search” with forensic phone hacking software such as Cellebrite. The regulations also restrict officers to searching what’s already on the phone, not downloading new data, so phone searches should be conducted in airplane mode or otherwise disconnected from the internet.
As the article notes, organisations such as the Electronic Frontier Foundation have put up advice on what to do. The EEF states this: “As of this writing, the federal government is considering requiring disclosure from certain foreign visitors of social media login credentials, allowing access to private postings and “friend” lists.”
For what it is worth, I haven’t ever been asked to show my phone to immigration authorities in places including Hong Kong, Singapore, Dubai, Switzerland, France, Germany, Malta, or for that matter, the US at airports in California, Boston, Miami, New York and Chicago. But that might change. Sadly, where the US “leads”, the rest of the world can follow. The US is land of the free, and all that. It does, or at least has, set the tone, even if performance was spotty in actual reality.
The Reason article makes the following points about the UK, Australia, New Zealand and Canada:
Another consideration is what happens on the other side of the journey. Canada, Britain, Australia, and New Zealand, which all share intelligence with the U.S. government under the Five Eyes program, have different border privacy policies. Under Australian law, travelers do not have to unlock their phones. Canadian authorities, like US authorities, say they will seize a phone if a traveler refuses to unlock it. New Zealand imposes a $5,000 fine for failing to unlock a phone, and Britain considers refusing to unlock a phone for police to be a counterterrorism offense.
Australia would seem to follow the correct policy on this – not forcing people to show the messages on their mobile telephones, unless there is a court order to do so.
After all a terrorist would not have incriminating stuff on their telephone – not someone who was actually planning
to murder the President of the United States or anything like that. Someone should not have their telephone confiscated just for refusing to show what they have been saying, or what other people have said to them, not without a court order.
As for the British policy of treating anyone who refuses to show the messages on their telephone as automatically a terrorist, that refusing to show what you have said or what other have said to you is in-its-self a “terrorism offense” – that is BARKING MAD.
Your last paragraph is of course correct. Here in the UK one can get charged under Schedule 7 of the Terrorism Act and subsequently imprisoned for failing to provide the police with the PIN for a mobile phone.
However which government has recently issued a “technical capability notice” under the Investigatory Powers Act 2016, compelling Apple to create a backdoor to its encrypted iCloud services. The demand requires Apple to grant access to end-to-end encrypted data, a step that could reshape global digital privacy standards and redefine corporate responsibilities in cybersecurity.
(Hint, it isn’t the USA).
Apparently, US Government workers are to be banned from Eastern Promise. So, they’re down on Madame Butterfly now (yeah, I know).
If I was a Chinese spook I’d exploit that because it opens up glorious opportunities for blackmail. I mean she might only have been a waitress in a dim-sum gaff but she’ll be able to extract more than a tip…
Demanding to see the messages on someone’s telephone is the same as demanding to see the contents of their letters – unless there is warrant from a court (a Common Law court – not a special “court”) issued on “probable cause”, it is a violation of the 4th Amendment.
However, the courts have long ruled that the Bill of Rights only applies to American citizens. And the 4th Amendment is not liked by the courts anyway. It is one of the Amendments that judges like to “interpret” (undermine).
Paul Marks wrote;
“However, the courts have long ruled that the Bill of Rights only applies to American citizens.”
Huh? Where on earth did you get this idea from? I don’t have the time, or the knowledge for a full exposition (bobby b., feel free to school us all) but will state that as a general rule, your assertion is 99.99875%-totally-incorrect. For example, how else do you suppose that illegal migrants to the US are challenging their deportations on due-process grounds (Fifth AND Fouteenth Amendment) and the courts are allowing them standing, unless they were universally agreed to possess those Constitutional rights? No offence, but this is a perfect example of the habit that many foreigners have of casually tossing out assertions about the US, which are more-or-less completely untrue, but which are confidently believed by both the speaker and the hearer, and never questioned.
llater,
llamas
I’m not losing sleep over a terrorist supporting shitbag who attended Nasrallah’s funeral having a visa denied for being a terrorist supporting shitbag.
Hopefully this is not too off topic, but what about US Citizens travelling to Great Britain or Europe? Is there any heightened risk for us? For example, will the British authorities search my phone when I land and find out I comment on this blog and thereby arrest me?
I was planning to go to Prague and Croatia this summer; that has fallen through but I still want to visit someplace in that part of the world. I’m 99% sure there is no increased risk but thought I’d ask this community.
Also, even though the risk may not have increased, how great is it? Are there any instances in the UK/EU of foreigners being detained or harassed for their online behavior? If not, why not…seems like an opportunity those authorities are missing (in their view)?
Wow, it seems terrorists are too stupid to travel with a special phone loaded only with positive statements about the US and Trump and governments are too stupid to know that terrorists can have multiple phones.
It’s a clown world we live in.
llamas – the Bill of Rights is not fully enforced even for American Citizens, or there would not be such things as Civil Asset Forfeiture. And there would not be the Double Jeopardy of someone being found innocent of, for example, murder – and then being tried again (Double Jeopardy) via the Civil Rights laws.
Nor would there be “Gun Control” laws in Washington D.C. and other cities. And most things the Federal Government does and spends taxpayer money on are, as you know, unconstitutional – but the Tenth Amendment is rarely enforced.
I am delighted to learn that, as a foreigner, the Bill of Rights fully covers me – perhaps one day it will cover American citizens as well.
I see – so if I visit the United States I do NOT have to show messages on my my mobile telephone (if I had such a thing) because the 4th Amendment covers foreigners like me. I am glad that has been cleared up.
It’s not off-topic at all. It is why I mentioned the situation in other Anglosphere countries.
I think you should be fine. If you travelling on any kind of visa make sure it is up to date.
I have not heard of our border force demanding to look at phones.
Paul Marks – well, without getting into a convoluted Con Law class, what you’re talking about now, is not quite the same as what you were talking about before – is it?
Civil Asset Forfeiture, as odious as it can be, does not conflict with the Fifth Amendment, which says that nobody (citizen or not) may ” . . . be deprived of life, liberty, or property, without due process of law;”. Unfortunately, CAF does generally take place within the ‘due process of law’, even though we may well agree that the laws used are manifestly unfair, arbitrary and capricious, and carefully administered in such a way as to render them facially unjust.
Your example of “Double Jeopardy” is, unfortunately, unfounded. While a person may be charged two different times for what appears to be the same thing, such is not the case. The first case would be for murder – NB, a state charge, nothing to do with Federal law. The second charge is for a Federal crime, typically, deprivation of civil rights. They may rely on many of the same facts and evidence, but are in fact completely-different charges.
“Gun Control” laws – same thing. You may not like these laws, and in fact, I cordially detest them also, but the fact is that the Supreme Court has decided that they do not constitute an ‘infringement’ of the right to keep and bear arms that the Second Amendment affirms. It might be well to note that the Supremes are taking a much-more-literal attitude to these sorts of laws these days, and tending to strike them down as being unconstitutional. We’re living in a time of well-recognized rights for gun owners not seen for a century or more.
As a foreigner – even as a foreigner who has entered the US illegally – the Bill of Rights (the first 10 amendments) protects your rights to just-about the same extent as it does every citizen or lawful resident, because (and this is what foreigners usually fail to grasp) it is not a list of what rights people have, but a list of what government may not do to infringe on the otherwise-unlimited rights of citizens.
llater,
llamas
Paul Marks wrote:
“I see – so if I visit the United States I do NOT have to show messages on my my mobile telephone (if I had such a thing) because the 4th Amendment covers foreigners like me. I am glad that has been cleared up.”
And then again – No. The Supremes have carved out an ‘administrative search’ exception to the Fourth Amendment at the border, which means that CBP have the right to confiscate electronic devices from anybody (citizen or not) and attempt to extract data from them. This only one of several exceptions to the Fourth Amendment which the Supremes have given to the CBP (such as the ‘checkpoint’ exception) which they in turn have found ways to use against everybody (not just citizens) in ways that the Supremes never contemplated. I cordially despise them all. But they are enforced against citizen and non-citizens alike.
llater,
llamas
Buy a burner phone for travel. Only have a phone directory, and only put white sheep in it. When I went to Thailand, I took the battery out while I was traveling because I hear the roaming fees can be enormous.
As for the Constitution, the Amendments and the Law – they are whatever the plod says they are. Maybe when you get to see a judge, he’ll correct the plod’s opinion. Maybe you’ll have to wait until you’re in court.
I’m really not seeing the problem here: when you visit a country of which you are not a citizen you are there on sufferance of good behaviour and have no right to enter that country.
“when you visit a country of which you are not a citizen you are there on sufferance of good behaviour and have no right to enter that country.” Agreed, but I’m not seeing how you get from there to “and the police have, or should have, the power to pry into every corner of your private life.”
You don’t need to use my phone to see what I’ve been posting on the internet, use your own damn computer.
Back in the era when the border laws were enforced – BB – Before Biden – if you were driving your RV or truck within about 80 miles of the US/Mexico border, you would commonly be pulled over and questioned by the Border Patrol, without probable cause, without a warrant. They were looking for both people and things.
If they didn’t feel comforted by your responses, they could empty out your entire vehicle on the side of the road – heck, they could haul your vehicle in for x-rays – and search though everything, and when they were done, and all of your stuff was lying about, they’d say thanks and drive away.
That’s the “border exception to the Constitution.” If you happen to set up camp for five months within that zone, you get to know the local BP people quickly, and they stop searching you after the first or second time.
(I will note that “the police” – the local guys who were NOT the federal Border Patrol – didn’t usually partake in the fun. They were still Constitution-observant. It was only the BP people who had the specific remit to guard the border that did this.)
Personally, I would not travel to the UK today were I an American citizen with a traceable presence on the internet critical of UK authorities, or muslims, or even pro-Tommy Robinson.
They seem entirely too eager to show that they can reach and punish those damned Americans for wrong-thought who dare to critique them.
I’m sort of chuckling that someone behind the curtain in the UK thinks the US is going overboard in this area. I’m trying to picture the Border Patrol guy at the window – “hey, you in the back seat – were you silently praying just now?! Step out!”
llamas – I was being sarcastic about being covered by the 4th Amendment (non citizens appealing to the Bill of Rights stand even less chance than Citizens), as sarcasm is the lowest form of wit perhaps you are correct to chastise me.
By the way – you are wrong about the Bill of Rights allowing Civil Asset Forfeiture, government officials stealing money and goods because they feel like it (which is what CAF actually is), – but the judges say it does – so the truth does not, in practice, matter.
bobby b – very wise.
David Wood, the anti Islam campaigner, recently lost a lot of money (pre booked hotels and so on) on a planned trip to Britain – he was not allowed in, no reason was given.
He was lucky – had he been British, not American, the authorities here would have been delighted to allow him in – and he would have been off to prison, the gangs who now control British prisons would also have been delighted to meet David Wood, and would have made his death a work of art.
Hah! I knew there was a good reason I still refuse to have a smart phone, and have never had any social media presence. Good luck to any border guard hoping to get much out of my trusty Samsung B2700……