Defending Privacy at the U.S. Border 6: Questions and Answers

This is the final Q&A part of the presentation by EFF’s Marcia Hofmann and Seth Schoen, where additional issues are raised, such as peculiarities of border inspection by different ports of entry, as well as Cloud and social network access requests from border agents.

Marcia Hofmann speaking: I think we have a few minutes for questions…

– If I am forced to give my password that’s also my Google Account password, are they going to see only what’s on the device, or also look at my personal online details as well?

Marcia Hofmann: This is a very interesting question. I don’t think any court has ever looked at it. Our possession certainly would be that they would need a warrant to access anything in the Cloud, but I don’t know what the government’s position on that would be. And I suspect we’ll be seeing a case like that in the near future.

Seth Schoen: There are anecdotes about border agents and law enforcement agents in some countries asking people for Cloud service passwords and social networking passwords. And it does seem like in the U.S., at least in a non-border situation, there would be a lot of legal restrictions on the U.S. Government’s ability to use that to go log into your account, because there are lots of statutes that protect those accounts. But as Marcia said, I guess this has never exactly come up in a case arising at the border.

– If I have an encrypted personal file on my electronic device, would it be something acceptable to deny if the border agent says: “I want your password for that”?

Marcia Hofmann: I think it’s possible. I think one of the things that’s very difficult about thinking through these scenarios is the fact that you never know what a border agent would do. You know, we’re dealing with human beings, and one border agent might suggest such a thing and find that acceptable, whereas another might not. I’ve heard anecdotally about a situation, for example where an individual was bringing encrypted data into the United States, and the border agent said: “Give me your password,” and the person said: “No” – and the border agent said: “Okay, that’s fine, just go.” I think that of course that’s like everybody’s sort of dream scenario on such a thing, but my point is that you never know what a border agent is going to do or what they’ll say. And I think the suggestion you proposed is plausible, but I just don’t know how a border agent would react for sure – you know, one border agent’s reaction may be very different than another’s.

Seth Schoen: And it was very clear from reading the published policies from Customs and Border Protection for example, that at least the public policy does not tell the agents how to handle that situation; it doesn’t say that the agents can be that, and it doesn’t say that they can’t be that.

– Do U.S. citizens always have the right to return to the country, or can they also be denied admission?

Marcia Hofmann: This is interesting. When we were doing the research for this paper, we operated on the assumption that U.S. citizens have an absolute unqualified right to enter the country. And as we were tracking down different cases, there was basically one case from Puerto Rico, from 1968 that just kind of says that, but doesn’t cite any legal authority for it. And then there’s one case that comes up after that, again, just kind of glibly says it. So we were not able to pin that down as well as we would have liked. And it actually seems that the legal situation there is a bit unclear.

Seth Schoen: So there’s no court decision that directly questions it. But there’s no Supreme Court decision, for example, that clearly says that U.S. citizens have the right to enter.

– Just out of curiosity, is there any difference in the mode of entering the country in terms of these guidelines and procedures?

Marcia Hofmann: I don’t know… I honestly don’t know the answer to that question. Anecdotally, it seems to me that when you enter the United States over roads, when you’re driving a car, you hear quite a bit about situations where people are asked to turn on their laptops, and agents look at what’s on the laptops. I hear about that sort of thing much more often actually than people entering the country through airports, or on ships. But I have never seen any empirical data on that question, and I don’t know the answer for sure. Seth, do you have any idea?

Seth Schoen: I definitely have a sense that different ports of entry vary a lot in terms of the attitudes of the CBP agents working at them, in terms of what kinds of technical training or skill they have, in terms of the volume of travelers that they have; but I don’t have any concrete idea how to give a rule, like it’s better to come by boat or something. I know I’ve entered the U.S. by boat and by plane, and it varied a lot more from airport to airport, I thought, than between boat and plane specifically. Maybe in the future there will be some of Yelp reviews of ports of entry, giving the number of stars and reviewing the agent. I mean, it really does vary a lot. As a U.S. citizen who has reentered the U.S. a number of times, I’ve had CBP agents who didn’t even speak to me, who just looked at my passport, saw that it was a U.S. passport, stamped it and handed it back to me – and I was done. And then, I’ve had people who questioned me about my work, and one person at one point who even tried to question me about my political views because he learned that I worked for EFF. That was the most disturbing. So, you know, there’s quite a range certainly.

Marcia Hofmann: So I think that our time’s up. Thank you so much!

Tips for Dealing with Border Agents

  • Avoid giving border agents excuses to get curious/alarmed about you and your possessions
  • Do not lie to border agents
  • Do not obstruct an agent’s investigation
  • Do be polite to them

Read previous: Defending Privacy at the U.S. Border 5: Device-Specific Data Protection

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