DHS Chief John Kelly’s proposal goes beyond most interpretations of the law.
“What sites do you visit? And give us your passwords.”
That’s what U.S. Homeland Security Secretary John Kelly wants foreign visitors to hear before they’re allowed to enter the United States. “If they don’t want to give us that information, then they don’t come,” he said, while testifying in front of the House Homeland Security Committee on Tuesday.
The suggestion was met with horror among privacy advocates. “With that kind of access, they can not only see what you’ve publicly posted, but things you haven't posted yet, private messages, private lists, they can impersonate you, and even do these things on accident,” wrote Joseph Lorenzo Hall, the chief technologist at the Center for Democracy and Technology, on his website. “This kind of access is profoundly invasive.”
Kelly’s proposal goes beyond most interpretations of the law—but that doesn’t mean it’s not already followed, occasionally and informally, by American border agents. And the U.S. isn’t the only country with unclear standards for border searches.
The Fourth Amendment protects people from unreasonable search and seizure—and even though the government has considerably more leeway to conduct searches at the border than it does anywhere else, federal judges have maintained that searches at the border still need to be “reasonable.”
“While the reasonable-suspicion standard for a border search is pretty low, it would at least preclude a blanket rule that every traveler disclose their passwords to online material and services,” said Al Gidari, the director of privacy at the Stanford Center for Internet and Society.
But because rules around boarder searchers are murky, customs agents have asked for—or even demanded—social-media information and passwords in the past.
Earlier this month, the Council for American-Islamic Relations filed complaints with DHS, the Justice Department, and Customs and Border Patrol, alleging that border agents had asked several Muslim-American travelers to identify their social-media accounts and turn over passwords to their mobile devices. Last month, Ali Hamedani, an Iranian-born British citizen and a reporter for the BBC, was asked to hand over his phone and password after he arrived at Chicago O’Hare airport.
With an unlocked device in hand, a border agent could scroll through the contents of signed-in social-media apps like Facebook and Twitter, reading private posts and messages. But because social-media sites’ data is hosted at data centers around the world, not on the device being carried through the border, rifling through that information may not be covered by the border-search exemption.
“Ordinarily there are no Fourth Amendment rights at the border, but a search of an online account isn’t occurring at the border: It's occurring wherever the server is located,” said Orin Kerr, the director of the Cybersecurity Law Initiative at George Washington University. “It's not clear if that counts.”
April Doss, a former top National Security Agency lawyer, told ZDNet’s Zack Wittaker that the proposal would almost certainly be unlawful.
In an interview with NPR’s Rachel Martin published Thursday, Kelly elaborated on his ideas for sifting through visitors’ digital exhaust:
Kelly said the administration is considering requiring residents of the seven countries to provide lists of the websites they’ve visited and their passwords, to enable officials “to get on those websites to see what they're looking at.”
Kelly said some of the other “ballpark things” that his department is considering include looking at applicants’ social media use “to see what they tweet,” as well as financial information and cellphone contacts so that officials can check the numbers against databases kept by the U.S. and the European Union.
Other countries have experimented with invasive digital searches at the border. A Canadian man named Alain Phippon was arrested at the Halifax airport last year when he refused to turn over the password to his cellphone. He sued the Canadian government, claiming he shouldn’t have been forced to give up his password, but a day before his scheduled trial this summer, he pled guilty to obstructing a customs agent and paid a $500 fine. The case wasn’t heard, and the Canadian law remains unclear.
Israel has a longer history of rifling through travelers’ digital information at the border. In 2012, the Associated Press reported that visitors who were deemed suspicious were increasingly being asked to log into their email accounts and submit to keyword searches. The same year, a young American woman wrote about being detained at Israel’s Ben Gurion airport and, after a long ordeal, being denied entry, based in part on emails and chat transcripts from an account she was forced to log into. “Not only do we Google you, we read your emails, too!” a border agent told her.
Jonathan Klinger, an Israeli cyber-law attorney, says social-media searches have continued, but that they’re only applied “selectively”—often targeting political activists, or even based on racial profiling. “Israel's policy in the recent years was to detain and refuse entry from civil activists based on social media posts and other opinions,” he said.
Over the summer, DHS proposed adding an optional question to a common customs form, asking incoming foreigners for their social-media handles—but not their passwords. In December, the proposal was adopted, and the new field, which is optional, began appearing on forms for most visiting non-citizens.
If the U.S. goes through with its proposal, experts say, the practice might quickly spread. “It’s likely the U.S. will inspire many countries, including oppressive nations, to institute the same password policies at the border,” wrote Jonathan Zdiarski, a prominent security expert, on his website. And if it’s widely implemented, agreements between allies could help countries spy on their own citizens, he wrote. An American citizen entering the U.K. might be asked to turn over his passwords, for example, which will promptly be shared with the U.S. government. “Think of it as backdoor built into your constitutional rights,” Zdiarski wrote.