American customs and border officers are digging ever deeper into travelers’ bags as they respond to what they say are terrorist threats, performing five times more searches of electronic devices in 2016 than they did the year before.
The number of searches was still small. More than 1 million people entered the U.S. per day, while Customs and Border Protection searched 65 electronic devices on the average day, a senior agency official said Friday.
Those searches included both U.S. citizens and legal permanent residents returning to their homes, as well as visitors and new immigrants arriving.
The senior official said searches netted everything from child pornography to evidence of terrorism ties — though the official couldn’t say how many of the 23,877 device searches conducted in 2016 did expose criminal behavior.
A year earlier CBP reported just 4,764 device searches, or just 13 a day.
“That’s a big jump,” said Nathan Wessler, staff attorney at the American Civil Liberties Union’s speech privacy and technology project. “They shouldn’t be able to do that on a hunch, or just because they feel like it. It should be based on actual suspicion of criminal wrongdoing based on fact.”
He said information they obtained from an open records request found that from October 2008 to June 2010, there were some 6,500 device searches, or an average of about 3,700 a year — more in line with the 2015 number, and reinforcing the notion that CBP was doing something substantively different in 2016.
Nearly half of those searched in the ACLU’s earlier data were U.S. citizens.
CBP officials said they didn’t have data on the percentage of Americans in the latest numbers, nor did they have data from before 2015 to compare. But they insisted the jump was about national security threats.
“You saw an increase in our searching of these types of devices really in response to, really, shifting world conditions,” the senior agency official said.
That’s likely to increase even more.
Homeland Security Secretary John F. Kelly told Congress earlier this month that he thinks checking into the online personas of potential immigrants and visitors is a critical part of the extreme vetting that President Trump has called for.
“We want to say, for instance, ‘What sites do you visit? And give us your passports,’” Mr. Kelly said. “If they don’t want to give us that information, then they don’t come.”
So far this year CBP said no changes have been made yet because of orders from Mr. Trump, countering fears that he’s sparked an increase in intensive searches.
Last week a NASA scientist said he was detained, and border officers made him divulge the password to his work phone. He said they copied his data.
Usually the device search consists of officers browsing through a smartphone’s photos or looking through a laptop’s contents, the CBP official told reporters in a briefing Friday.
In a very small number of cases, a device will be seized and held for up to five days while officers do a more thorough forensic analysis, the official said.
Mr. Wessler, the ACLU lawyer, said he expects to see more court challenges if the rate of searches is going up. One appeals court has already ruled that the government needs to meet higher standards if it is to do a forensic analysis on a phone.
Mr. Wessler said there aren’t very good answers for travelers who want to avoid running the risk of a border search, though he said one option is to consolidate devises and, if possible, take ones with less information on them when traveling.
Border officers also can’t compel a U.S. citizen to turn over a password, though officers can hang onto the device for a deeper examination, so travelers face a tradeoff in that decision, the lawyer said.
