Then there was Haisam Elsharkawi, an American citizen who was stopped at the Los Angeles airport before getting on a plane to Saudi Arabia. He was handcuffed, questioned, and pressed into giving up his smartphone’s passcode. After a 15-minute search, Elsharkawi was released.
Customs and Border Protection, the agency that secures the border crossings like international airports in the U.S., has conducted invasive digital searches on travelers before. It’s not clear whether these searches at the border have increased in frequency or intensity since President Trump took office.
But since Trump signed a hastily assembled executive order temporarily barring visitors from seven Muslim-majority countries from entering the U.S., America’s borders have come under intense public scrutiny. It could be that CBP officers have become more aggressive about searching travelers—or perhaps the stories of travelers who submitted to digital searches are surfacing more readily.
Wyden asked DHS Secretary John Kelly for detailed statistics on the number of times customs agents asked for or demanded a smartphone or computer password in the past five years as well as since Trump took office in January. He also asked how Customs and Border Protection, or CBP, justifies these searches legally, focusing specifically on the Fifth Amendment, which protects people from testifying against themselves. (I’ve written before how the Fifth Amendment prevents law enforcement from demanding that someone give up a password—and how it may not apply to devices that are unlocked via fingerprint, iris scans, or speech patterns.)
“Indiscriminate digital searches distract CBP from its core mission and needlessly divert agency resources away from those who truly threaten our nation,” Wyden wrote. He warned that uncertainty about what data might be seized at the border could harm businesses whose employees regularly travel overseas.
The senator also took aim at a proposal that Kelly put forward in front of the House Homeland Security Committee two weeks ago. He suggested that visitors may be required to turn over passwords to their social-media accounts or risk being denied entry. The idea alarmed privacy advocates, who say such a rule would give CBP agents an overly broad look into travelers’ digital lives.
Issuing a blanket approval for social-media searches at the border could run into thorny legal issues, too. To get a subject’s personal information from a company like Facebook, Google, or Apple, law enforcement must first obtain a subpoena or a search warrant, which it can then use to ask the company to turn over relevant data. Getting social media passwords straight from a traveler would end-run this system.
“By requesting a traveler’s credentials and directly accessing their data, CBP would be short-circuiting the vital checks and balances that exist in our current system,” Wyden wrote to Secretary Kelly.