Last Week in Tech Policy: #45 Inspection of Electronic Devices and Passwords

(By Gabrielle Daley, Colorado Law 2L)

NASA scientist and U.S citizen Sidd Bikkannavar flew back into the United States on January 30th, 2017 and was detained by U.S customs and border patrol agents.  Mr. Bikkannavar was detained upon his arrival at the Houston airport by agents who stated the reason for the detention was to ensure that he was not bringing anything dangerous into the country. However the agents never searched Mr. Bikkannavar’s luggage. Instead he was handed a document entitled “Inspection of Electronic Devices” and asked for his cell phone and cell phone password.

Mr. Bikkannavar was reluctant to hand over the phone because as it belonged to his employer, the NASA Jet Propulsion Laboratories. However, agents insisted on access to the phone and password, and eventually Mr. Bikkannavar gave an agent both. The agent then left the room with the device. Mr. Bikkannavar has no idea what the agent did with the phone outside of his presence, but in a Tweet last week confirmed that JPL is running digital forensics on the phone to try and determine what may have been taken—or left—on the phone.

New technology means new challenges to our understanding of constitutional protections.

While Mr. Bikkannavar’s story is forming part of the larger narrative surrounding detentions at the U.S border after the issuance of President Trump’s executive order, the practice of searching cell phones and other electronic devices at the U.S border has been in place since at least 2008.

While the Fourth Amendment usually requires the government to obtain a warrant based on probable cause for searches, the Supreme Court created a border search exception that allows agents to conduct broad searches without warrants. As our reliance on technology has expanded and integrated into our daily lives with our use of smart phones and tablets, courts are seeing new challenges to the border search exception arise in the context of technology.

In  California v. Riley (2014) the Supreme Court decided an important issue in the area of searches and cellphones. The Court looked at how the search incident to arrest (SIA) exception to the Fourth Amendment applies to cell phones. The Court held that the SIA exception does not apply to searches of cell phones, and that therefore officers are obliged to get a warrant before searching cell phones. However, Riley was not decided in the context of  searches at the border and different interests are at stake in that context that could lead to a different ruling if the Court faces this issue.

What if Bikkannavar had refused to surrender his password when asked?

If you’ve secured your device with a password, can a border agent reasonably ask that you turn it over? This area of the law is uncertain. Courts have ruled that the Fifth Amendment protects arrested persons from having to turn over their cell phone passwords.

What about biometrics? If you chose to secure your device with a fingerprint instead of a password, some courts have decided that you can be compelled to unlock your phone for law enforcement.

However, courts are making these rulings in the course of arrests while inside the United States, not at its borders—and it remains uncertain how courts will view these same issues at the border.

What does this mean for travelers stopped at the border?

The ACLU’s Know Your Rights material on this question acknowledges that this area is in contest and has no specific answer to the password question. The EFF’s guide on things to consider when crossing the US border offers both advice on how to decrease the amount of personal information you carry with you and advises that you do not have to reveal your password when asked at the border but also warns that there are likely to be consequences for this refusal. Non-citizens may be refused entry, and citizens may be detained and their devices seized.

Haisam Elsharkawi, an American Citizen, was traveling from L.A to Saudi Arabia last week when he was asked by agents at the U.S border to hand over his password. He initially refused, and asked for a lawyer. He said this request seemed to inflame the situation. He eventually relented and  was released shortly after he surrendered his information.

What effect does this have more broadly on civil rights?

ACLU attorney Nathan Freed Wessler says that the practice of searching devices and demanding passwords  makes people decide between their privacy and mobility. This is of particular concern for journalists who have additional ethical concerns about protecting their sources. Even for those of us who aren’t journalists, the uncertainty in the law has the potential to chill speech if anything you say on your device, or social media  can be accessed by border agents.