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Electronic
media
searches
at
border
crossings
raise
worry
By
GILLIAN
FLACCUS
ap.org
PORTLAND,
Ore. -
Watchdog
groups
that
keep
tabs on
digital
privacy
rights
are
concerned
that
U.S.
Customs
and
Border
Protection
agents
are
searching
the
phones
and
other
digital
devices
of
international
travelers
at
border
checkpoints
in U.S.
airports.
The
issue
gained
attention
recently
after at
least
three
travelers,
including
a
Canadian
journalist,
spoke
out
publicly
about
their
experiences.
The
episodes
have
gained
notice
amid an
outcry
over
President
Donald
Trump's
travel
ban and
complaints
of
mistreatment
of
foreign
travelers,
but the
government
insists
there
has been
no
policy
change
in the
new
administration.
Border
Protection
says
searches
increased
fivefold
in the
final
fiscal
year of
the
Obama
presidency,
but
still
amounted
to less
than
one-hundredth
of 1
percent
of all
international
arrivals.
Here are
some
things
to know
about
the
searches
and your
privacy
rights.
----
WHAT
HAS
PROMPTED
THE
CONCERN?
The
American
Civil
Liberties
Union
and the
Electronic
Frontier
Foundation
both say
they
have
noticed
an
uptick
in
complaints
about
searches
of
digital
devices
by
border
agents.
The
increase
has
become
most
noticeable
in the
last
month,
said
Adam
Schwartz,
a senior
staff
lawyer
at the
Electronic
Frontier
Foundation.
"We are
concerned
that a
bad
practice
that has
existed
under
past
presidents
has
gotten
worse in
quantity
under
the new
president,"
Schwartz
said.
The
government
says
nothing
has
changed.
Customs
officials
also say
the
perceived
shift
can be
attributed
to a
jump in
the
number
of
electronic
devices
that
people
are
carrying
with
them and
shifting
tactics
as the
agency
adjusts
to the
amount
and
types of
information
that can
be
stored
on
today's
devices.
---
WHAT
SEARCH
AUTHORITY
DOES THE
BORDER
PROTECTION
HAVE?
Americans
have
protection
under
the
Fourth
Amendment
from
unreasonable
search
and
seizure.
A police
officer,
for
example,
must
obtain a
warrant
from a
judge
before
searching
a
suspect's
phone.
But the
U.S.
border
is a
legal
gray
zone.
Border
agents
have
long had
the
right to
search
travelers'
physical
luggage
without
a
warrant,
and that
interpretation
has been
expanded
to
include
digital
devices,
ACLU
staff
attorney
Nathan
Freed
Wessler
said.
In 2013,
the 9th
U.S.
Circuit
Court of
Appeals
ruled
that if
agents
want to
do a
forensic
search
they
need to
have a
reasonable
suspicion
of
wrongdoing,
he said.
But the
court
stopped
short of
requiring
agents
to
obtain a
search
warrant
beforehand,
he said.
And an
agent
can flip
through
a phone
in a
cursory
search
for any
reason.
The law
has not
kept up
with the
"incredible
volume
of
personal
data
that we
have in
our
pockets
now" -
and that
creates
tremendous
constitutional
questions,
said
Wessler.
"In some
ways, a
search
of your
phone is
more
invasive
than a
search
of your
house,"
he said.
A case
currently
headed
to
another
appeals
court
could
further
clarify
the law,
said
Schwartz.
---
WHAT
DOES THE
BORDER
PROTECTION
SAY?
Numbers
provided
by the
Border
Protection
show a
fivefold
increase
in
electronic
media
searches
in the
2016
fiscal
year
ending
on Sept.
30 over
the
previous
fiscal
year.
In 2016,
under
the
Obama
administration,
there
were
23,877
electronic
media
searches.
That
comes to
.0061
percent
of total
arrivals
into the
U.S. In
fiscal
year
2015,
there
were
4,764
electronic
media
searches.
A senior
CBP
official
briefed
reporters
on the
issue
Friday,
but the
agency
insisted
the
official
not be
identified.
"We see
it as an
article
that is
brought
into the
U.S., no
different
than a
booklet
of
materials,
no
different
than a
suitcase
with
items in
it," the
official
said.
"We've
uncovered
very
serious
and
significant
information
in these
types of
searches,
everything
from
national
security
concerns
to child
pornography
to
evidence
of
crimes
to
determinations
of
people's
admissibility
status
under
the
immigration
laws."
---
HOW
CAN YOU
PROTECT
YOUR
DIGITAL
PRIVACY
WHILE
TRAVELING?
Privacy
advocates
say
travelers
who are
concerned
should
leave
their
phones
and
laptops
at home
and buy
a cheap
phone
once
they
arrive
at their
destination.
The
Council
on
American-Islamic
Relations
is also
advising
its
members
to do
the
same.
Those
who
can't
leave
their
devices
behind
should
encrypt
them and
close
out of
all
social
media
applications
so they
aren't
accessible
without
a
password,
said
Schwartz.
But
those
steps
won't
matter
much if
a border
agent
asks a
traveler
to
unlock
the
phone or
provide
a
password,
said
Scwhartz.
And
travelers
should
also be
aware of
the
rules in
other
countries.
Israel
authorities
can
check
mobile
phones
at the
airport,
for
example.
---
WHAT
HAPPENS
IF YOU
REFUSE?
CBP
can't
bar a
U.S.
citizen
from
entry if
they
refuse
to
comply,
but
agents
can make
things
difficult.
Travelers
who
don't
unlock
their
phones
could be
questioned,
detained
temporarily
and have
their
phones
taken by
agents
for
days.
Travelers
who are
not U.S.
citizens
can be
denied
entry.
Hasaim
Elsharkawi,
a
self-employed
businessman
from
Anaheim,
California,
told the
AP that
he was
stopped
by
agents
in Los
Angeles
last
week as
he was
boarding
a plane
to Saudi
Arabia
to make
a
pilgrimage
to
Mecca.
They
asked
him to
unlock
his
phone
without
telling
him why.
Elsharkawi,
a
Muslim,
said he
refused
because
he
didn't
want the
male
agents
to see
photos
of his
wife
with her
head
uncovered.
When he
asked
for a
lawyer,
the
agents
detained
him,
handcuffed
him and
interrogated
him for
four
hours
before
he
agreed
to
unlock
the
device
for a
female
agent,
he said.
He was
then
released
and his
phone
was
returned
after
the
female
Homeland
Security
officer
checked
his
email,
photos
and eBay
and
Amazon
accounts.
Elsharkawi,
34, was
born in
Saudi
Arabia
to
Egyptian
parents.
He came
to the
U.S. in
2004 and
became a
U.S.
citizen
in 2012.
"I was
already
nervous
before
and
after
what has
happened
... I
don't
know
what to
expect
next,"
he said.
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