April 19, 2017

Phony Security Measures

Transportation officials have no right to search through phones without a warrant.

Recently, after Customs and Border Protection (CBP) pressured a NASA scientist to turn over his cell phone at a Houston airport, a floodgate burst in the media. Stories of others who had been coerced into handing over their phones and passcodes at airports began to surface, and the backlash was immediate. Travelers, both foreign and domestic, worried about traveling with phones while travel agents fretted over potential industry damage. Predictably, Trump supporters applauded the President for improving security, while liberals accused the Trump administration of attacking privacy. In the wake of multiple travel bans and anecdotal reports of increased airport profiling, it’s understandable why people would link phone search stories to the Trump administration. But this may be a premature accusation. Border agents have been able to search phones and laptops without a warrant for some time, and they did so during the Obama administration with gusto. Data obtained by NBC indicates that the Department of Homeland Security (DHS) performed nearly 25,000 electronic media searches in 2016 alone.

That said, the new administration has signaled interest in expanding searches for visitors, requiring foreign travelers to hand over social media passwords and phone contacts. This “extreme vetting,” as Trump has repeatedly called it, is a horrible idea. Unfortunately, the same must be said for the current policy on phone searches. Our newfound fury over these searches, although perhaps misdirected, has done something invaluable: It has reminded us that phones are not like most property.

Almost nobody objects to the right of government agents to rifle through luggage or to empty out backpacks at an airport (unless the process of selecting people to search is discriminatory). But phones strike us as being inherently different from the rest of our luggage, and rightfully so. They contain a wealth of sensitive information, information that is unique both because it’s comprehensive and because it can’t easily be edited or left at home by the average owner.

The idea that we implicitly consent to having our phones searched simply by bringing them along with us on flights is inadequate, precisely because most of us can’t leave behind a phone (or buy a burner) every time we board a plane. Neither can we identify and remove sensitive information we’d like to keep to ourselves, if only because of the massive amount of data we’d have to comb through. When we bring a phone on a plane, we’re doing so because we feel as though we have to. What’s more, we usually can’t avoid bringing along a great deal of information we wouldn’t otherwise reveal to an agent without a warrant, from access to social media accounts to a full record of text messages.

It might be an exaggeration to call a phone an extension of the self. But it’s not that far-fetched to claim that we’ve outsourced a substantial portion of our memory, and an exhaustive account of our interactions, to a lump of metal. Searching a phone enables agents to access information of a degree and scope many leagues above what could be gleaned from nearly any other form of property. The words that get bandied about most in the aftermath of phone searches—“violation” and “intrusion”—reflect that reality.

The courts have recognized the unique nature of phones in the past. In Riley v. California, the Supreme Court ruled that police couldn’t search the phones of arrested people without warrants. Border agents have been exempt from that requirement because of the increased powers of law enforcement at airports and other “points of entry.” The fact that they have had no qualms about exercising these privileges recently (in 2015, DHS searched roughly 5,000 phones, only to ramp up searches five times the next year) is cause for concern. The damage done by agents accessing sensitive data without warrants is easy to imagine. Think of all the lawyers, doctors, and government workers whose confidential information might be accessed by a nosy border agent with insufficient cause for suspicion.

Even if increased agent powers at borders and airports are a necessity, the power to search phones without warrants goes too far. Phones belong to a special category of property far more intimate and potentially damaging than the rest of our luggage, and it’s time to require border agents to obtain warrants before searching them.

Natalie Denby is a second-year in the College majoring in public policy studies.

Correction on April 20, 2017, 9:41 a.m. CDT:

This article erroneously stated that the Transportation Security Administration (TSA) is searching phones as part of increased airport profiling. It is actually the Customs and Border Protection (CBP). The Maroon regrets this error.