When Sidd Bikkannavar, a US citizen and employee of the Jet Propulsion Laboratory at the National Aeronautics and Space Association (NASA), returned to the US two weeks ago from a trip to Patagonia, he didn’t expect trouble. When passing through US Customs and Border Protection (CBP) at Houston’s George Bush Intercontinental Airport on Jan. 30, however, the American-born scientist was reportedly detained by immigration agents who demanded he turn over his phone along with its access code.
According to The Verge, Bikkannavar was taken to a questioning room and presented with a document titled “Inspection of Electronic Devices,” after which an officer outlined CBP’s authority to search his phone. As the device was issued by his employer, NASA, and likely contained sensitive material, Bikkannavar initially protested, but eventually turned it over, along with its security pin, for fear of being seen as uncooperative.
“I was cautiously telling him I wasn’t allowed to give it out, because I didn’t want to seem like I was not cooperating,” he told The Verge. “I told him I’m not really allowed to give the passcode, I have to protect access. But he insisted they had the authority to search it.”
In 2014 case Riley v. California, the US Supreme Court held that law-enforcement officials may not search an individual’s phone without a warrant—the obtainment of which requires an officer to demonstrate that he or she has probable cause to believe a device may contain evidence of criminal activity. This essentially brought mobile devices under the protection of the Fourth Amendment of the US Constitution, which regulates the search powers of government and law-enforcement officials.
In his opinion, supported by a unanimous vote of the court, chief justice John Roberts wrote that phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and that “the fact that technology now allows an individual to carry such information in his hand … does not make the information any less worthy of the protection for which the founders fought.”
But Riley was not a border search case. And searches at the border are governed by a Fourth Amendment loophole, which permits immigration officials to search the belongings of border crossers without warrant or demonstrable reasonable suspicion. It’s an exception protected by the same line of reasoning behind random TSA pat-downs—the maintenance of national security necessitates quick and easy, randomized searches; requiring security officers to obtain a warrant for every pat-down or luggage check would defeat their very purpose.
On this concept, the very function of the Fourth Amendment hinges. Its execution is a never-ending balancing act between the security interests of the state and public on one hand, and the privacy interests of the individual citizen on the other. Where the privacy of an individual citizen might be abridged for the relatively more vast security interests of the whole public, our legal system may allow for a warrantless search; at least at the point where concerns of safety and efficiency converge.
The Electronic Frontier Foundation, an international non-profit digital rights group, advocates for the establishment of an exception for the contents of mobile devices in border searches. “The Supreme Court created a border search doctrine that allows border agents to conduct routine searches (such as bag searches) even if there’s no suspicion at all about the traveler, but requires suspicion in order to conduct non-routine searches (such as strip searches),” staff attorney Sophia Cope says in a statement emailed to Quartz.
The EFF argues that the information stored on mobile devices cannot be “routinely” search. The highly personal nature of the information therein cannot compare to anything that might be recovered during a luggage inspection. “So courts are now grappling with whether searches of digital devices at the border are non-routine searches that require suspicion,” Cope says.
And suspicion cannot, in any way, shape, or form, rely on an individual’s race, religion, or national origin. A non-routine search inspired by any of the aforementioned characteristics would be a violation of the Constitution’s Equal Protection Clause—though that doesn’t necessarily mean it won’t happen anyway.
On Feb. 11, a Wall Street Journal reporter by the name of Maria Abi-Habib was detained by immigration authorities upon landing at Los Angeles International Airport (LAX) from Beirut, Lebanon—a country from which she holds dual citizenship with the United States—and was ordered to turn over her phone.
“They grilled me for an hour,” she relayed in a Facebook post published after being released. “I answered jovially, because I’ve had enough high-level security experiences to know that being annoyed or hostile will work against you.”
When the agents asked for her phone in order to “collect information,” Abi-Habib reportedly refused. “”That is where I drew the line,” she wrote. “I told her I had First Amendment rights as a journalist she couldn’t violate and I was protected under.”
The agent then accused her of obstructing an investigation, and went to fetch a supervisor. She returned 30 minutes later to tell Abi-Habib she was free to go.
“I have no idea why they wanted my phones,” Abi-Habib wrote. “It could have been a way for them to download my contacts. Or maybe they expect me of terrorism or sympathizing with terrorists.”
Indeed, individuals of Middle Eastern and South Asian descent have born the observably disproportionate brunt of invasive border searches—both since the advent of former US president George W. Bush’s “War on Terror” security policies, and a recent uptick in monitoring under president Donald Trump. Sidd Bikkannavar reported being taken to a detention area of the Houston airport already occupied by a number of individuals apparently affected by Trump’s recently halted ban on travel from seven Muslim-majority countries.
As courts work toward settling what types of border searches qualify as “routine,” or justifiably “non-routine,” US citizens who find themselves presented with a CBP blue paper at the border are not without recourse. While the documents correctly assert CBP’s authority to search phones, individuals are not legally obligated to provide a pass code or actually unlock their devices themselves. “In each incident that I’ve seen, the subjects have been shown a Blue Paper that says CBP has legal authority to search phones at the border, which gives them the impression that they’re obligated to unlock the phone, which isn’t true,” Hassan Shibly, chief executive director of CAIR Florida, tells The Verge. “They’re not obligated to unlock the phone.”