Back in April, General Kelly, Secretary of the Department of Homeland Security, in Congressional hearings said that non-citizens might be detained or denied entry to the US if they didn’t let Homeland Security rummage through their electronic devices and maybe even make copies of them at the border. He seemed to indicate that this wasn’t true for citizens.
This week General Kelly was back on Capitol Hill in front of the Homeland Security Committee and under intense questioning from Senator Rand Paul (R-KY), he had to admit that it really didn’t matter whether you were a citizen or non-citizen, DHS reserved the right to detain you and rummage through, make copies of or even seize your electronics at the border.
While DHS had asked for access to cell phones for years, the concern is that it has been scaled up and U.S. citizens are getting caught in the situation.
Kelly said that less than 1 percent of the people coming through customs every day get their phones searched. At a million people coming through customs on an average day, that means that as many as 10,000 of them might get their phones snagged. That is still a pretty big number.
When Senator Paul tried to pin down General Kelly about what circumstances might cause someone like the NASA engineer returning home from a vacation in Chile in January to be detained in Houston, General Kelly did a bit of a dance. Senator Paul called the search arbitrary which General Kelly didn’t like at all. He said they had to have a reason, but he couldn’t explain what that might be.
Senator Paul said that unless there were rules – rules that someone could look at – then the search was arbitrary.
Senator Paul and Senator Wyden have introduced legislation that would require a search warrant before searching someone’s electronics. A warrant would require DHS to convince a judge that there is probable cause. This has always been the standard for law enforcement, just not for DHS. DHS says that searching your phone is no different than searching your suitcase, but other people say that there is a difference in opening your suitcase and looking for, say, drugs. After all, unlocking your phone and having DHS look through your email will not likely score a big illegal stash of drugs.
My guess is that the legislation will go no where, but you never know.
In the mean time, IF you are concerned, there are some simple things that you can do.
First of all, if DHS does ask to look at your phone and you opt to not agree, they can seize your phone. If the phone (or laptop) you take across the border is burner phone – a cheap, throwaway phone that only has minimal information, then you probably don’t care if DHS keeps it. Consider taking a cheap Chromebook instead of your laptop. That way there is no data stored on the laptop at all and as long as you don’t automatically log your Chromebook into those cloud services, your data is private.
Note that they will give the phone or laptop or whatever back to you eventually, however, if the do take it away from you, I would never, ever use it again because you have no clue what they might have done to the software or even to the hardware.
If you took pictures abroad and you want to make sure that you don’t lose them, upload them to the cloud before you start your return trip home.
And, DHS isn’t your only worry. People leave thousands of laptops at airport security. According to the WSJ, 12,000 laptops are left at airports every week and 70% of them are never reclaimed. Not having anything important on that device has new meaning given those statistics.
If, however, if you are, like the NASA engineer above, taking a work phone across the border, the situation is different. The NASA engineer tried to explain to DHS that they didn’t have a clearance to see the information on the phone (it was NOT classified, but it was sensitive), but they didn’t seem to care.
If the phone or laptop is encrypted, it is unlikely that DHS is going to spend the effort to try and break in, but could they insert a keystroke logger in it before they give it back to you in order to capture the password? Don’t know, but the technology exists to do that and it isn’t that expensive.
Depending on your level of paranoia, if you unlock it and they take it out of your sight (you do NOT have a right to watch them while they search your device), that is really no different than them taking it and keeping it for a while. That phone should be considered compromised.
When that NASA engineer returned to work after being detained in Houston and unlocking his phone for DHS, NASA treated the phone as compromised. They took it away from the engineer and gave him new toys – just too risky to keep using the ones that DHS had access to.
Think about what might be on your electronic device – it might be logged on to GMail or Facebook. There is nothing to stop DHS from friending themselves, for example or just looking at your posts or all of your mail.
IF you have your computer or phone set up to automatically log you in to all those cloud services, you might want to logout and tell it not to automatically log you in.
Again, all of this is a function of your level of paranoia. If you don’t have nude selfies of yourself and your significant other on your device and you don’t have your passwords to all of your other accounts in your contacts, well, then, maybe you don’t care.
What is clear is that likely some number of thousands of people every day have to make a split second choice and having thought about what you would do under the circumstances is probably a good idea. Based on those thoughts you can decide what electronics you want to take and not take.
Information for this post came from Newsweek.