Would you hand your cellphone over to a friend and let them scroll through your messages, photos, and social media accounts? If that doesn’t sound ideal—then what about handing it over to a stranger at the US border?
Recent reports of travellers being asked to unlock their phones for inspection when crossing into the US are raising fears about invasions of privacy at the border—and bringing up questions for Canadians who are planning to travel south.
If there’s a trip to America in your future, what do you need to know about the potential for your phone or your laptop to be examined by border agents? And if you are asked to hand over your devices and your passwords, do you have to comply?
Is it actually legal for border agents to search my phone?
The short answer is yes. US border agents are legally allowed to request access to your phone, your laptop, or your other electronic devices.
This policy has actually been in place for years. But with new and controversial border policies under President Trump attracting increased media attention, this policy has also been brought back into the spotlight for a closer look.
Let’s look at the policy in brief. Because of a legal rule called the “border exemption,” which allows border agents to search your belongings without a warrant, it is permitted under the law for border agents to ask to look at your electronic devices.
As for a more thorough examination of your phone’s contents, such as a dive into your personal accounts and messages—that is a little murkier. An appeals court in California found that “reasonable suspicion” would be needed for a full “forensic search” of your device at the border, though there is clearly room for interpretation within those parameters. As the issue continues to face scrutiny in the news, it’s no doubt the rules will continue to be examined and changed. For the moment, however, it seems there is nothing concrete to stop border agents from requesting access to your phone.
That said, this is not a blanket policy; border agents are not searching the phones of every single traveller to cross into the country. Rather, it is an extra level of scrutiny that could technically be exercised on anyone, much like a thorough search of your carry-on baggage at the end of the security conveyor belt, or that additional pat-down you sometimes receive after the metal detector.
So, what happens if I refuse to give up my phone or my passwords at the border?
That depends on whether or not you are an American citizen. If you are a citizen, you will eventually have to be allowed in the country, but refusing to give up your phone or share your social media passwords could cause lengthy delays—including being detained and having your phone taken for inspection. (Agents will, however, eventually have to give your phone back.)
For Canadian citizens, however? Entry into the US is always at the border agent’s discretion. So while you can technically refuse to hand over your phone or your passwords, border agents are well within their rights to respond by refusing to let you into the country.
Why is this the policy?
On the one hand, border agents can argue that asking to examine your phone is like asking to search your bag. Your phone is filled with personal information that could potentially give them valuable insight into your beliefs and intentions while in the country. And as our correspondence and internet use is increasingly stored in the cloud rather than on our devices themselves, some see asking for your social media passwords as a natural extension of searching your devices.
On the other hand, the content of your social media feeds, your emails, and your text messages is much more personal than a simple bag full of your clothes. Your messages could contain incredibly private, personal information that you would rather not share with a stranger. Not to mention that the way you speak to your friends and family is quite different than the way you would speak to a border agent—your phone might be filled with content that could be easily misconstrued by a stranger.
There are also arguments to be made that anyone truly planning a terrorist attack could easily scrub their phone of anything suspicious, or even provide dummy social media accounts to avoid suspicion. That, and the fact that no one is forced to attach their real name to their social media accounts make it difficult to say how effective this policy can possibly be. (A border agent might be able to search for a Facebook or Twitter account under your name, but if you use an alias on an account that’s not connected to your phone, how could they possibly find it?)
One thing is certain: As technology evolves faster and faster, we will continue to be faced with new questions about privacy and security, and there will inevitably be growing pains as we learn how best to tackle them. As the political situation in the US continues to develop, and as our relationship with social media evolves even more rapidly, there will no doubt continue to be unfamiliar situations like this one for us to navigate. For now, the best thing to do is keep an eye on the situation as it unfolds.
And, for Canadians crossing the border into the US, it’s in your best interests to carefully consider what information you’re bringing along on your phone.
Planning a trip to the US? Don’t forget travel insurance! From medical emergencies to unexpected cancellations, insurance can help make sure your trip runs smoothly.