US Customs and Border Protection has long considered US borders and airports a kind of loophole in the Constitution’s Fourth Amendment protections, one that allows them wide latitude to detain travelers and search their devices. For years, they’ve used that opportunity to hold border-crossers on the slightest suspicion, and demand access to their computers and phones with little formal cause or oversight. Even citizens are far from immune. CBP detainees from journalists to filmmakers to security researchers have all had their devices taken out of their hands by agents. “There’s not that much you can do when you cross the border in terms of the government’s power,” warns University of California at Davis law professor Elizabeth Joh.
Before going into customs, alert a lawyer or a loved one who can contact a lawyer, and contact them again when you get out. If you are detained, you may not be able to access your devices or otherwise have the opportunity to reach the outside world. And in the worst case scenario of a lengthy detention, you’ll want someone advocating for your release and legal representation.
If customs officials do take your devices, don’t make their intrusion easy. Encrypt your hard drive with tools like BitLocker, TrueCrypt, or Apple’s Filevault, and choose a strong passphrase. On your phone—preferably an iPhone, given Apple’s track record of foiling federal cracking—set a strong PIN and disable Siri from the lockscreen by switching off “Access When Locked” under the Siri menu in Settings.
Remember also to turn your devices off before entering customs: Hard drive encryption tools only offer full protection when a computer is fully powered down. If you use TouchID, your iPhone is safest when it’s turned off, too, since it requires a PIN rather than a fingerprint when first booted, resolving any ambiguity about whether border officials can compel you to unlock the device with a finger instead of a PIN—a real concern given that green card holders are required to offer their fingerprints with every border crossing.
Be warned, however, that denying customs officials access can at the very least lead to hours of uncertain detention in a bleak, windowless CBP office. And for visa and even green card holders, the right to enter the US is far less clear. “If they truly want to come into America, then they’ll cooperate,” DHS secretary Kelly told Congress last Tuesday. “If not, you know, next in line.” If the DHS does adopt that hardline policy of privacy invasion, it could leave non-citizens without easy answers.
In fact, the issue of privacy rights for digital devices at the border remains troublingly unsettled, Joh says. While the Supreme Court decision in Riley vs. California in 2014 declared warrantless searches of devices at the time of arrest unconstitutional, no case has set such a precedent for the American border—much less for non-Americans seeking those same privacy rights.
Until such a precedent is set, that border zone will remain in a kind of legal limbo. The government has the power to open bags crossing into its territory or even dismantle cars to search for contraband, she points out. “What does that mean in an age when people bring their digital devices across borders? The Supreme Court hasn’t spoken to that issue,” Joh says. “The real problem here is there’s still no good set of protections for a portal into your private life.”
(this article is based on information from A Guide to Getting Past Customs With Your Digital Privacy Intact, https://www.wired.com/2017/02/guide-getting-past-customs-digital-privacy-intact/ )