This is so many kinds of messed up. Customs and Border Protection recently detained a man named Sidd Bikkannavar on his re-entry to the United States until he gave them access to his passcode-protected cell phone. How many kinds of messed up is it?
1) Bikkannavar is a natural-born U.S. citizen 2) who has had a background check through the Global Entry program and 3) hasn’t visited any of the countries targeted by Donald Trump’s Muslim ban. So there was no obvious reason, beyond his suspiciously foreign name (it’s Indian), for CBP to look twice at him. (And that’s no reason, to be clear.)
Oh, and 4) Bikkannavar is a NASA scientist at the Jet Propulsion Laboratory and 5) he told CBP that the phone they wanted to search was NASA property containing sensitive information that shouldn’t be shared. But they insisted, telling him that they had the authority to search it. Which brings us to another messed up thing here:
Courts have upheld customs agents' power to manually search devices at the border, but any searches made solely on the basis of race or national origin are still illegal. More importantly, travelers are not legally required to unlock their devices, although agents can detain them for significant periods of time if they do not. “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, told The Verge. “They’re not obligated to unlock the phone.”
Nevertheless, Bikkannavar was not allowed to leave until he gave CBP his PIN. The officer insisted that CBP had the authority to search the phone. The document given to Bikkannavar listed a series of consequences for failure to offer information that would allow CBP to copy the contents of the device. “I didn’t really want to explore all those consequences,” he says. “It mentioned detention and seizure.” Ultimately, he agreed to hand over the phone and PIN. The officer left with the device and didn’t return for another 30 minutes.
CBP can tell you they have the authority to search your phone all they want, but they cannot actually force you to unlock it for them. If you are detained and CBP demands that you unlock your phone and tells you that they have the authority to search it, remember that. They certainly can make your life unpleasant, but—for now, anyway, even in Trump’s America—you have the right to refuse to unlock your phone. If it is passcode-protected. They can force you to use your fingerprint to unlock your phone. So set up a passcode on your phone and know your rights if CBP tells you they have the authority to search your device.
And the second CBP accepts your legal refusal to sign away your rights and lets you out of detention, use your phone to light up social media about their abuse of power. Unless, like Sidd Bikkannavar, you have to bring your phone to NASA to be inspected to see if Customs and Border Protection messed with the sensitive government information on it.