Recently a NASA engineer was detained at a Houston airport until he agreed to unlock his work-issued phone for CBP agents there. The incident has citizens of the United States along with those with plans to visit wondering what their rights are in regards to their smartphones and privacy.
The unfortunate answer is, not much.
Even if you’re a U.S. citizen the Constitution’s Fourth Amendment, which protects you from search and seizure without probable cause, does not fully apply at border crossings. And while the Supreme Court has ruled that law enforcement agencies inside the country cannot search your phone without a warrant, it hasn’t yet made a ruling on phone searches at the border.
Until it does, here’s what you need to know: If your phone is subject to inspection you will be provided with this tearsheet from the CBP agent who requests it. If you refuse or are unwilling to unlock it, what happens next depends on who you are. Citizens of the United States may be detained for an indeterminate amount of time, but you can at least request that a lawyer be present for all questioning. Citizens and legal permanent residents cannot be denied re-entry into the country, but this does not apply to foreign nationals—in other words, visitors the U.S. who refuse to unlock their phones for inspection run the risk of being turned back.
If you’re concerned about your privacy and personal data, what can you do? One recommendation would be to leave your phone at home, but I’m guessing that no one reading this would want to do that. Another option would be to back up your personal data online, wipe your phone for the border crossing and then restore it once you’re through. A third option would be to avoid travelling to and transferring through the United States until all this is sorted out.