As we have begun using our smartphones as an extended organ where we keep most of our private conversations, pictures, and tools, we acknowledge that our phones contain highly individualized aspects of our lives. Some of us do also keep our confidential business emails or privileged client information on our phones, bringing professional attention to our privacy. We usually lock our phones with complex configurations of passwords and believe that no one would be able to lawfully look up our private data as they wish. Well, if you plan to cross into or out of the United States, these instincts might be deceitful.
Adam Malik, an immigration attorney who travels frequently for his work, was stopped when he was returning to the United States from Costa Rica. He was flagged in a passenger-screening system and directed to a secondary screening area for questioning. There, the officers asked him to unlock his phone to search for it. Malik refused, referencing the privileged data he kept on his phone. The officers then seized the phone, decrypted it, and copied all the data it contained.
Should have been frustrated, Malik sued the Department of Homeland Security (DHS) to securely destroy all copies of the digital information that was obtained from the phone. He argued that the Fourth Amendment protects him from unreasonable searches and seizures, and it was unconstitutional for DHS to arbitrarily search for his phone. However, the court disagreed, opining that such constitutional rights are severely diminished at the border. Accordingly, the officers could search for Malik’s phone as pleased as long as they had a reasonable suspicion.
Malik then questioned the basis for him to be subjected to a secondary search and how officers could have a “reasonable suspicion.” The court explained that reasonable suspicion is a very low threshold that could be satisfied by a minimal level of objective justification. In Malik’s case, his name was matched with a name in the passenger screening system, and that was a sufficient basis for DHS to search for his phone. Furthermore, the court underlined that, in some cases, DHS may not even need a reasonable suspicion, and it could freely search for one’s phone at the border.
Could Malik or any of us know whether our phones will be searched for at the airport when we are entering the United States? Most likely not. Although the court does not provide much detail about how a passenger-screening screening system works, it is a system that matches your passenger name record (PNR) and/or advanced passenger information (API) with a person’s name or information on DHS’s watchlist. So, if your name appears positively in the system, you are likely to be subjected to a more intrusive search for your person and baggage, including your phone or other electronic devices. Since DHS’s watchlist is not a public list due to national security reasons, you wouldn’t be able to check whether your name matches a name on the list before purchasing your ticket.
What You Can Do
The first step is being aware of the risks to your data privacy associated with international travel so you can assess what precautions could be appropriate for you. If you are a frequent traveler for business purposes, the simplest option you may choose is to use a blank “burner” phone or laptop during your international trips. Although it’s not very convenient, it should be effective to protect your confidential information. Alternatively, you may consider technological solutions that allow remote access to the information you need without creating local copies on your devices.
If you have previously been subjected to additional security screening at an airport, there is a possibility that your name could be similar to a name on DHS’s watchlist. If you don’t want to experience the same again, you may request a Redress Control Number through DHS. A redress number is a number saved in an air traveler’s profile to reduce misidentifications. Although a redress number does not guarantee that you won’t be subjected to a secondary search, it could be an effective method of avoiding such screenings.
If you have previously been subjected to additional security screening and your electronic devices were searched for or seized, note that there are legal bases and arguments that were not raised in Malik’s case, such as certain protections in the Privacy Protection Act of 1980, and could be applicable to your situation. In such a case, you may want to contact a lawyer.
International travel is exciting for most, and necessary for some, but traveling across borders may create risks for your privacy more than you would think. If you like to know more about what your rights are when you’re entering the United States at an international airport, you may want to consult an attorney.
Onal Gallant Bayram&Amin PC is a law office specializing in Real Estate Law, Intellectual Property, Corporate and Business Law, Immigration Law, and the US Visa Processes. We deliver reliable advice on a large variety of subjects ranging from forming a corporation and buying a house in the US to trademark registration and Green Card applications (e.g., EB3 Visa or DV Lottery). With exceptional knowledge and insight into immigration law, our experienced lawyers at Onal Gallant Bayram&Amin are ready to help and respond to all of your inquiries.
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