Can Border Patrol agents demand you unlock your phone? Tech worker’s SFO experience raises question

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The well-publicized detention and interrogation of a high-level Silicon Valley tech worker at San Francisco International Airport by Border Patrol agents, and their demands that he unlock and surrender his cell phone and laptop computer, raise a legal question that probably is headed for the U.S. Supreme Court: How much evidence do officers need to search electronic devices carried into the country?

The answer, according to U.S. Customs and Border Protection, is little or none. At least that’s how its agents responded in November when Andreas Gal of San Mateo, former chief technology officer of Mozilla Corp., arrived in San Francisco after a business trip to Sweden for his current employer, Apple Inc.

Gal, 42, said three armed agents held him for an hour and questioned him “aggressively” about his trip, his job and his past work for Mozilla. The questions, he said in an interview, were “very pointed, direct, surprising,” and focused on his views favoring online privacy and stronger encryption, which “happened to be contrary to the government’s view.”

The agents, he said, searched his belongings and ordered him to unlock his smartphone and provide the password to his laptop, both of which came from Apple and contained confidential information he had promised not to disclose. Gal said he asked to speak with a lawyer, but the agents refused.

They eventually released him, but not before threatening him with criminal prosecution under a law that prohibits “forcibly” resisting or interfering with law enforcement — though he said he never refused their demands directly and merely asked to consult a lawyer first. The agents also took away his Global Entry card, which had allowed him to bypass airport lines and use electronic kiosks when returning from his frequent business travels.

“If the government intended to scare me, they certainly succeeded,” Gal said in a recent online posting. “Ever since, I travel in fear. I’ve reduced my international travel and my heart pounds every time I go through U.S. customs. I will, however, not be silent.”

The American Civil Liberties Union has also spoken up, asking the Department of Homeland Security to investigate U.S. Customs and Border Protection’s practices and its treatment of Gal. It has filed a Freedom of Information Act request, often the forerunner of a lawsuit.

Such electronic searches are “on the rise,” said ACLU attorney William Freeman. “We believe there are tens of thousands of them every year.”

Their legality will likely be determined by a Supreme Court that has ruled on related issues but has not yet decided where to set the boundary between electronic privacy and the promotion of national security through searches of personal data involving travelers coming into the U.S.

In 2014, the court ruled unanimously that police need a judicial warrant to search cell phones — which, in the words of Chief Justice John Roberts, “hold for many Americans the privacies of life.” But that case involved searches conducted inland and not at an airport or the U.S. border, where the courts have traditionally placed few restrictions on inspections of incoming travelers.

Balancing those interests, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled in 2013 that the Border Patrol needed “reasonable suspicion” — evidence of criminal wrongdoing — to search the contents of cell phones. A warrant wasn’t necessary, the court said in the ruling, which the Supreme Court later left intact.

Last year, in light of the Supreme Court’s 2014 ruling, two more federal appeals courts considered whether Border Patrol agents need reasonable suspicion to use electronic equipment to conduct “forensic searches” of cell phones to obtain the information they contain. One court said yes, the other said no.

“It’s complicated,” said Hadar Aviram, a law professor at UC Hastings in San Francisco. And she said the usual liberal-conservative divisions among Supreme Court justices don’t necessarily foretell the results.

Before Roberts’ salvo in the 2014 ruling, she noted, the late Justice Antonin Scalia, a conservative icon, wrote a 5-4 decision in 2001 — joined by Justice Clarence Thomas — that required police to obtain a warrant before installing a device to monitor heat emitted from the home of a suspected marijuana grower. Another Scalia ruling in 2012 said, for a unanimous court, that police needed a warrant to attach a GPS tracking device to a motor vehicle.

Justice Neil Gorsuch, appointed by President Trump to succeed Scalia, “actually tends to be pro-privacy … for (cases involving) government overreach,” in contrast to his support for broad government authority on other issues, Aviram said.

Stanford Law Professor Robert Weisberg, co-director of the school’s Criminal Justice Center, said the court might well find a middle ground in a case like Gal’s, requiring reasonable suspicion of a crime before searching his devices.

Agents were “pretty heavy-handed” in their treatment of Gal, Weisberg said, threatening him with prosecution, revoking his Global Entry status and forcing him to change his future travel plans. Since the November incident, Gal said he has made sure to “wipe” his cell phone of personal contents, and have lawyers on standby, before traveling abroad.

Customs and Border Protection has not commented on Gal’s case, but issued a statement defending searches of electronic devices at borders and airports.

Such searches can reveal “an individual’s intentions upon entry” and are “critical to the detection of evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography,” the agency said.

The agency announced a policy in January 2018 requiring agents to have reasonable suspicion of wrongdoing before using electronic equipment to conduct an “advanced search” of cell phone contents. But the ACLU, in its complaint to Homeland Security, said the policy has loopholes that leave agents “free to rifle through sensitive personal information contained on electronic devices with no suspicion and no limitations on the scope of their search.”

The policy apparently did not apply to the demand for Gal’s devices, and Customs and Border Protection has not indicated whether its agents suspected any wrongdoing, saying only that it was entitled to “lawfully examine” anything brought into the United States. Gal said the federal agency seems not to understand the intrusiveness of such searches.

“Every message I’ve ever sent, every book I’ve read — my entire life was on this smartphone, 10 years of my life, day by day,” he said. “I hope the courts will step in.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @BobEgelko

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