US Customs can search, save the data from your phone without a warrant
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 pornography, 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.”
