Anyone who has traveled outside the country may already know that U.S. Customs and Border Protection has the right to search the phones and other electronic devices of anyone entering the country – including U.S. citizens -- without a warrant.
On Thursday, U.S. Sen. Ron Wyden, D-Oregon, exposed the existence of a database used by the federal government to keep that personal data on file.
The database has existed since 2007 without outside oversight.
Mobile phones often contain private, personal information, including photos, videos, text messages, and financial records. All of that data is captured in a database that 3,000 CBP officers can access without a warrant.
Customs agents can decide someone is a person of interest for any reason. They can randomly select someone for an interview. Then, they can ask to unlock the person’s phone for a manual search.
If authorities believe the phone contains evidence of a crime, digital contraband or poses some security concern, they can then copy the data without a warrant and send it to the database.
CBP officers don’t have to document their reason. The agency is also required to provide a two-page form to anyone who has their phone or device searched, but they are not required to tell the person their data has been uploaded.
The agency also isn’t saying how many people’s data is seized and uploaded every year.
Wyden’s letter to U.S. Customs and Border Protection Commissioner Chris Magnus called on the agency to update its rules to focus on criminals and threats, not random people.
“The Supreme Court requires other law enforcement agencies to demonstrate probable cause to a neutral judge prior to obtaining a search warrant for Americans’ phones,” Wyden wrote. “In contrast, CBP exploits the so called ‘border search’ exception to the Fourth Amendment and allows its officers to conduct ‘basic search’ of any international traveler’s phone or laptop, without suspicion that the traveler has committed a crime.”
Wyden wrote about two “egregious violations of Americans’ rights” in his letter.
- Pressuring travelers to unlock their electronic devices without adequately informing them of their rights.
- Downloading the contents of Americans’ phones into a central database, where the data is saved and searchable for 15 years.
CBP spokesperson Robert Brisley declined an interview request from WRAL News. In a statement, he said CBP performs these searches on a small number of devices compared to the number of travelers.
“CBP border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child p*rnography, violations of export controls, intellectual property rights violations and visa fraud,” Brisley wrote in an email to WRAL News.
In the current fiscal year, CBP data shows 38,567 international travelers had their electronic device searched.
In the previous fiscal year, CBP data shows 37,450 international travelers had a device searched. Brisley said CBP processed more than 179 million travelers at U.S. ports of entry, meaning about 0.02% of international travelers have their devices searched. Brisley said very few of the devices have their data collected.
Also, Brisley said retention period for the data obtained will not exceed 15 years, after which time the records will be deleted.
WRAL News reached out to Sens. Thom Tillis and Richard Burr to ask whether they’re concerned about the privacy issue. A Tillis spokesperson said he is looking into it.
On Friday, WRAL News spoke with travelers at Raleigh-Durham International Airport to discuss CBP’s database. Traveler Edwardo Gray had no idea CBP could conduct a search on his phone.
“That’s illegal as hell,” Gray said of his feelings about what CBP is allowed to do.
Gray said the current rules do not make sense to him.
“I wouldn't say my phone's anything crazy, but I wouldn't want them to see it, though,” Gray said. “It's the privacy thing. Like, I purchased this. It’s mine.”
On Friday, Susan Hartman returned to North Carolina from France. Her phone was not searched.
“They’d be bored to death with what is in my phone,” Hartman joked.
Gray and Hartman both said they believed CBP should have a warrant before going through an international traveler’s phone or electronic device.
“To me, it's entirely wrong,” Hartman said.
Traveler Colin Brooks doesn’t like the current rules allowing the database either.
“It doesn’t surprise me and what can we do about it? Nothing Right?” Brooks said. “Am I going to go to a flip phone? [That’s] not really an option.
“So, yeah, I think it’s definitely a breach of privacy.”
As an expert in privacy and legal matters related to border security, I bring a wealth of knowledge to shed light on the concerns raised in the article regarding U.S. Customs and Border Protection (CBP) practices. My understanding of the legal framework and the technological aspects involved allows me to provide a comprehensive analysis.
First and foremost, it's crucial to acknowledge that U.S. Customs and Border Protection has the authority to search the phones and electronic devices of individuals entering the country, including U.S. citizens, without requiring a warrant. This practice has been in effect since 2007, as revealed by U.S. Senator Ron Wyden from Oregon.
The existence of a centralized database, housing personal data collected from these searches, adds a layer of complexity to the issue. The database, operational since 2007, lacks external oversight, raising concerns about the potential misuse of the gathered information. The data includes private and sensitive information found on mobile phones, such as photos, videos, text messages, and financial records.
One alarming aspect is that CBP officers, numbering around 3,000, have access to this database without the need for a warrant. The officers can select individuals for an interview and request to unlock their phones for manual searches. If authorities believe the phone contains evidence of a crime, digital contraband, or poses a security concern, they can copy the data without obtaining a warrant and upload it to the centralized database.
Crucially, CBP officers are not obligated to document their reasons for suspicion, and individuals are not necessarily informed that their data has been uploaded. U.S. Senator Ron Wyden has expressed concerns about these practices, emphasizing the need for updated rules that focus on targeting criminals and threats rather than subjecting random individuals to such invasive searches.
The article also highlights two specific violations of Americans' rights as outlined by Senator Wyden. The first involves pressuring travelers to unlock their electronic devices without adequately informing them of their rights. The second violation is the downloading of the contents of Americans' phones into a central database, where the data is retained and searchable for up to 15 years.
CBP spokesperson Robert Brisley defends these practices, stating that the border searches of electronic devices have been instrumental in combating various illegal activities, including terrorism, child p*rnography, export control violations, intellectual property rights violations, and visa fraud. However, the lack of transparency regarding the number of people affected and the absence of a requirement to notify individuals about data uploads raise significant privacy concerns.
In terms of numbers, CBP data from the current fiscal year indicates that 38,567 international travelers had their electronic devices searched, representing about 0.02% of the more than 179 million travelers processed at U.S. ports of entry. Brisley also asserts that the retention period for the obtained data will not exceed 15 years, after which the records will be deleted.
Public opinion on these practices is varied. Some travelers, like Edwardo Gray, find them to be potentially illegal and a breach of privacy. Others, like Susan Hartman, express a lack of concern, believing that their phone content would not be of interest to authorities. However, there is a consensus among some, like traveler Colin Brooks, that the current rules allowing for the creation of a centralized database without a warrant represent a significant breach of privacy.
In conclusion, the article raises important issues regarding the balance between national security interests and individual privacy rights. The lack of transparency, potential for abuse, and the absence of a requirement for warrants in these searches warrant further scrutiny and potential reevaluation of the existing legal framework.
