Border Safe than Sorry

Borders.

Among jet-setting adventurers and fleeing refugees alike, simply crossing a border may prove the realization of a dream, a lifetime in the making. Whether arbitrary or in the shape of two kissing dinosaurs, borders can divide, protect, and win elections – depending on who you ask. In the United States, the protectionist battle cry of securing our borders has emerged to captivate the public discourse and shape international diplomacy. In airports and checkpoints throughout the country, this campaign promise has taken the form of enhanced searches of person and property. It seems that anyone, even NASA engineers, may be subject to the seemingly ambiguous level of authority that border agents possess to search and seize one’s belongings.

What then, are we to do? At the request of my friend and travel blogger, Andrew Scott, we will examine why border searches may be so invasive, and what, if anything, you can do to protect yourself the next time you find yourself at a United States border.

What authority do border agents possess?

Custom and Border Protection (“CPB”) agents operate with broad authority to search citizens and visitors alike. Unlike a regular police search, CPB is not required to meet a certain level of suspicion or seek judicial approval prior to the search. Derived from a variety of federal statutes, these blanket powers allow for warrantless searches, interrogations and requests for production of travel documents. Specifically, 8 U.S.C. §1357(c) provides:

Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.

Electronics, which may include anything from your brand new Nikon to a USB flash drive, are most definitely subject to these types of searches, and have been since the Bush administration (to see what this looks like in practice, check out this guy’s record of CPB seizing $2,000 worth his electronics). With a catch-all directive of detecting terrorism, transmission of child pornography, financial crimes, and copyright export violations, CPB claims authority to search all electronic devices “with or without individualized suspicion”. Yes, this means that border officials can ask you to turn on your laptop or phone and search through your devices on the spot (otherwise known as a “cursory search”). Do you have to comply? No. However, non-compliance may subject your devices to seizure and your body to temporary detainment. The risk greatly increases for non-citizens, who may be simply turned away at the border.

If you or your devices are seized, you will probably be given a sheet that looks like this. At the end of the day, the choice to unlock or hand over your device depends on you and how you feel about that particular encounter (and your immigration status).

“What about my Fourth Amendment protections that protect me from unreasonable searches and seizures?”, you, my constitutional law connoisseur, may ask? Those protections are weakened at the border, as the competing interests between the government protecting the borders and your expectation of privacy are heavily tipped in the government’s favor.

 What if you find yourself at the border?

Know that although cursory searches of person and property are allowed, anything more invasive does require a higher level of suspicion. For example, reasonable suspicion of criminal activity is required for CPB to perform a forensic analysis of your external hard drive, just as probable cause is required to keep any copies of call logs made from your seized iPhone. Likewise, CPB cannot take you to a local medical facility, subject you to X-rays and cavity probes to find non-existent drugs, and bill you for said procedures.

For those apprehensive of any future travel plans or the truly paranoid, a new bill requiring probable cause warrants for electronic searches at the border may be the answer. However, until the proposed bill becomes law, the following best practices will be your best bet at the border:

  • Travel light. Either leave your laptop or camera at home or consider buying a travel-only device (Note: this may also arouse suspicion). You probably don’t want to pay for roaming anyways.
  • Encrypt and use a STRONG password. If you absolutely must travel with your iPhone (do it for the gram), set your passcode to at least 6 digits and encrypt any device, like an external hard drive, that isn’t already encrypted (iPhones are encrypted by default).
  • No fingerprints. Disable Touch ID. You may be compelled to use your finger to unlock a device, but cannot be forced to hand over your passcode.
  • Store it in the Cloud. Not only will you free up space, you’ll free up your anxiety.
  • Shut it down. Before you show up, completely shut off all your devices. This is when encryption works best. Also turn off Siri from the lockscreen so she can’t betray you.
  • Don’t lie. As with any contact with law enforcement, do not lie. Not only will your pants be on fire, but you may also be prosecuted for obstructing justice.
If you’re feeling courageous enough to pass through customs and want to visit interesting places like Cuba or Iceland, check out Andrew’s in-depth travel guides at Authentic Traveling.

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