Citizens: Border Agents Can Search Your Cellphone
Cynthia McFadden, E.D. Cauchi, William M. Arkin,
- When Buffalo, New York couple Akram Shibly and
Kelly McCormick returned to the U.S. from a trip to
Toronto on Jan. 1, 2017, U.S. Customs & Border
Protection officers held them for two hours, took
their cellphones and demanded their passwords.
"It just felt like a gross violation of our
rights," said Shibly, a 23-year-old filmmaker born
and raised in New York. But he and McCormick
complied, and their phones were searched.
days later, they returned from another
trip to Canada and
were stopped again by
"One of the
officers calls out to me and says, 'Hey, give me
your phone,'" recalled Shibly. "And I said, 'No,
because I already went through this.'"
asked a second time..
seconds, he was surrounded: one man held his legs,
another squeezed his throat from behind. A third
reached into his pocket, pulling out his phone.
McCormick watched her boyfriend's face turn red as
the officer's chokehold tightened.
asked McCormick for her phone.
"I was not
about to get tackled," she said. She handed it over.
McCormick's experience is not unique. In 25 cases
examined by NBC News, American citizens said that
CBP officers at airports and border crossings
demanded that they hand over their phones and their
passwords, or unlock them.
travelers came from across the nation, and were both
naturalized citizens and people born and raised on
American soil. They traveled by plane and by car at
different times through different states.
Businessmen, couples, senior citizens, and families
with young kids, questioned, searched, and detained
for hours when they tried to enter or leave the U.S.
None were on terror watchlists. One had a speeding
ticket. Some were asked about their religion and
their ethnic origins, and had the validity of their
U.S. citizenship questioned.
of them have in common — 23 of the 25 — is that they
are Muslim, like Shibly, whose parents are from
provided by the Department of Homeland Security
shows that searches of cellphones by border agents
has exploded, growing fivefold in just one year,
from fewer than 5,000 in 2015 to nearly 25,000 in
to DHS officials, 2017 will be a blockbuster year.
Five-thousand devices were searched in February
alone, more than in all of 2015.
shocking," said Mary Ellen Callahan, former chief
privacy officer at the Department of Homeland
Security. She wrote the rules and restrictions on
how CBP should conduct electronic searches back in
2009. "That [increase] was clearly a conscious
strategy, that's not happenstance."
really puts at risk both the security and liberty of
the American people," said Senator Ron Wyden,
D-Oregon. "Law abiding Americans are being caught up
in this digital dragnet."
just going to grow and grow and grow," said Senator
Wyden. "There's tremendous potential for abuse
CBP agents call "detaining" cellphones didn't start
Donald Trump's election.
The practice began a decade ago, late in the George
W. Bush administration, but was highly focused on
aggressive tactics of the past two years, two senior
intelligence officials told NBC News, were sparked
by a string of domestic incidents in 2015 and 2016
in which the watch list system and the FBI failed to
stop American citizens from conducting attacks. The
searches also reflect new abilities to extract
contact lists, travel patterns and other data from
phones very quickly.
DHS has published more than two dozen
reports detailing its extensive technological
to forensically extract data from mobile devices,
regardless of password protection on most Apple and
Android phones. The reports document its proven
ability to access deleted call logs, videos, photos,
and emails to name a few, in addition to the
Twitter, Facebook, and Instagram apps..
officials caution that rhetoric about a Muslim
registry and ban during the presidential campaign
also seems to have emboldened federal agents to act
shackles are off," said Hugh Handeyside, a staff
attorney with the ACLU's National Security Project.
"We see individual officers and perhaps supervisors
as well pushing those limits, exceeding their
authority and violating people's rights."
multiple sources told NBC News that law enforcement
and the Intelligence Community are exploiting a
loophole to collect intelligence.
Fourth Amendment, law enforcement needs at least
reasonable suspicion if they want to search people
or their possessions within the United States. But
not at border crossings, and not at airport
Amendment, even for U.S. citizens, doesn't apply at
the border," said Callahan. "That's under case law
that goes back 150 years."
Handeyside noted that while the Fourth Amendment's
warrant requirement doesn't apply at the border, its
"general reasonableness" requirement still does, and
is supposed to protect against unreasonable searches
and seizures. "That may seem nuanced, but it's a
critical distinction, said Handeyside. "We don't
surrender our constitutional rights at the border."
Border officers can search travelers without any
level of suspicion. They have the legal authority to
go through any object crossing the border within 100
miles, including smartphones and laptops. They have
the right to take devices away from travelers for
five days without providing justification. In the
absence of probable cause, however, they have to
give the devices back.
searches people on behalf of other federal law
enforcement agencies, sending its findings back to
partners in the DEA, FBI, Treasury and the National
Counterterrorism Center, among others.
thinks that CBP's spike in searches means it is
exploiting the loophole "in order to get information
they otherwise might hot have been able to."
January 31, an engineer from NASA's Jet Propulsion
Laboratory was pulled into additional screening upon
his return to the U.S. after a two-week vacation in
Chile. Despite being cleared by the Global Entry
program, Sidd Bikkannavar received an "X" on his
customs form. He is not Muslim, and he is not from
any of the seven countries named in President
original "travel ban" executive order.
Half his family comes from India but he was born and
raised in California.
was brought into a closed room and told to hand over
his phone and passcode. He paid particular notice to
the form CBP handed him which explained it had the
right to copy the contents of the phone, and that
the penalty for refusal was "detention."
know if that meant detention of the phone or me and
I didn't want to find out," said Bikkannavar. He
tried to refuse but the officer repeatedly demanded
the PIN. Eventually he acquiesced.
had that, they had everything," Bikkannavar said.
That access allowed CBP officers to review the
backend of his social media accounts, work emails,
call and text history, photos and other apps. He had
expected security might physically search any
travelers for potential weapons but accessing his
digital data felt different. "Your whole digital
life is on your phone."
officers disappeared with his phone and PIN. They
returned 30 minutes later and let him go home.
regularly searches people leaving the country.
9, Haisam Elsharkawi was stopped by security while
trying to board his flight out of Los Angeles
International Airport. He said that six Customs
officers told him he was randomly selected. They
demanded access to his phone and when he refused,
Elsharkawi said they handcuffed him, locked him in
the airport's lower level and asked questions
including how he became a citizen. Elsharkawi
thought he knew his rights and demanded access to
if I need a lawyer, then I must be guilty of
something," said Elsharkawi, and Egyptian-born
Muslim and naturalized U.S. citizen. After four
hours of questioning in detention, he unlocked his
smartphone and, after a search, was eventually
released. Elsharkawi said he intends to sue the
Department of Homeland Security.
current policy has not been updated since 2009.
Jayson Ahern, who served in CBP under both Bush and
Obama, signed off on the current policy. He said the
electronic searches are supposed to be based on
specific, articulable facts that raise security
concerns. They are not meant to be random or routine
or applied liberally to border crossers. "That's
reckless and that's how you would lose the
authority, never mind the policy."
& Border Patrol policy manual says that electronic
devices fall under the same extended search doctrine
that allows them to scan bags in the typical
threat landscape changes, so does CBP," a
spokesperson told NBC News.
policy was written in 2009, legal advocates argue,
several court cases have set new precedents that
could make some CBP electronic searches illegal.
Several former DHS officials pointed to a 2014
Court ruling in Riley v California
that determined law enforcement needed a warrant to
search electronic devices when a person is being
arrested. The court ruled unanimously, and Chief
Justice John Roberts wrote the opinion.
cellphones are not just another technological
convenience. With all they contain and all they may
reveal, they hold for many Americans 'the privacies
of life,'" wrote Roberts. "The fact that technology
now allows an individual to carry such information
in his hand does not make the information any less
worthy of the protection for which the Founders
that case happened outside of the border context,
however, CBP lawyers have repeatedly asserted in
court that the ruling does not apply to border
Department of Justice internal bulletin
has instructed that, unless border officers have a
search warrant, they need to take protective
measures to limit intrusions, and make sure their
searches do not access travelers' digital cloud
data. The 'cloud' is all content not directly stored
on a device, which includes anything requiring
internet to access, like email and social media.
officials who helped design and implement the search
policy said they agreed with that guidance.
Pushes to Change the Policy
February 20, Sen. Wyden wrote to
DHS Secretary John Kelly
demanding details on electronic search-practices
used on U.S. citizens, and referred to the extent of
electronic searches as government "overreach". As of
publication, he had yet to receive an answer.
Wyden says that as early as next week he plans to
propose a bill that would require CBP to at least
obtain a warrant to search electronics of U.S.
citizens, and explicitly prevent officers from
rules ... seem to be on the way to being tossed in
the garbage can," said Senator Wyden. "I think it is
time to update the law."
the Shibly case, a CBP spokesperson declined to
comment, but said the Homeland Security Inspector
General is investigating. The spokesperson said the
agency can't comment on open investigations or
particular travelers, but that it "firmly denies any
accusations of racially profiling travelers based on
nationality, race, sex, religion, faith, or
the sharp increase in electronic searches, a
department spokesperson told NBC News: "CBP has
adapted and adjusted to align with current threat
information, which is based on intelligence." A
spokesman also noted that searches of citizens
leaving the U.S. protect against the theft of
American industrial and national security secrets.
repeated communications, the Department of Homeland
Security never responded to NBC News' requests for
comments. Nonetheless, the Homeland Security
Inspector General is currently auditing
CBP's electronic search practices.
on American-Islamic Relations (CAIR) also has filed
two dozen complaints against CBP this year for
issues profiling Muslim Americans. CAIR and the
Electronic Frontier Foundation are considering legal
action against the government for what they consider
to be unconstitutional searches at the border.
views expressed in this article are solely those of the author and do not necessarily
reflect the opinions of Information Clearing