When border patrol demands your phone: Our view

In January, New York couple Akram Shibly and Kelly McCormick entered the U.S. through Niagara Falls after a short getaway to Canada. It was their second trip back across the border in several days, and for the second time, U.S. Customs and Border Protection officers demanded their cellphones and passwords.

Shibly — a 23-year-old filmmaker, New York native and the son of Syrian immigrants — had already given up his cellphone and password for an unwarranted search a few days prior while re-entering the USA. This time, he refused. Within seconds, Shibly was surrounded by officers who grabbed his legs, placed him in a chokehold and physically removed his cellphone, according to an NBC News report. Watching this, McCormick dutifully complied when asked to surrender her phone.

"I was not about to get tackled," she said.

The incident sheds light on something many Americans might not know: When you travel abroad and re-enter the United States, customs officers can seize your laptop or smartphone, demand the access code or password, pore through what it contains and even download those contents.

Courts for decades dating to the nation's earliest day have carved out an exception to the constitutional guarantee against unreasonable searches when it comes to the border and what you carry across — luggage, handbags and so on — on the grounds that the U.S. must protect itself. Your smartphone is just another "container."

DHS: Device searches improve safety

But the technology of what Americans now carry on laptops and iPhones has changed so rapidly that the law desperately needs to catch up when it comes to these border searches. Randomly picking through a traveler's purse is not the same as accessing a device that contains anything from a trove of intimate emails and photos to personal medical files, tax information, financial data or a reporter's notes.

"A search of a laptop is essentially a strip-search of someone's personal private life," says Nathan Wessler, a staff attorney for the ACLU's Speech, Privacy and Technology Project.

With much of that information now stored in the "cloud" — the shared computer processing network that physically exists in giant servers in the USA — that information doesn't "enter" the country with you. It's already in the country. Where does that leave the argument that the nation is acting under the guise of preventing danger from crossing its borders?

Customs and Border Protection says electronic-device searches occur among only one-hundredth of 1% of travelers. But given the volume, that's not peanuts. Last year alone, that was 23,800 devices. And if the pattern of the customs seizures in 2008-10 — uncovered by the ACLU through Freedom of Information requests — still holds, half of those devices belonged to U.S. citizens.

The examination of peoples' private smartphone contents without any reasonable suspicion of wrongdoing is growing. Customs data show that 4,700 devices were searched in 2015 compared with 23,800 the next year. There were 2,300 searched in February, the first full month of the Trump administration.

The courts are beginning to understand this risk of government intrusion. In a 2014 Supreme Court decision requiring that police obtain a warrant to search cellphones seized within the U.S., Chief Justice John Roberts said comparing a cellphone to other physical items is "like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together."

Most travelers entering America choose not to challenge customs officers who demand their phones. They risk losing the device for days. No one can say how long it will be before federal courts finally weigh in on the constitutionality of this practice. In the meantime, Sen. Ron Wyden, D-Ore., says he plans to introduce legislation extending 4th Amendment rights to travelers entering the USA.

It's a good idea. "Modern cellphones are not another technological convenience," Roberts wrote in 2014. "With all they contain and they may reveal, they hold for many Americans 'the privacies of life.' "

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