The tentacles close in: Smartphone edition
Kaveh Waddell reports in the Atlantic:
Everything started to go wrong just after 5 a.m., when Sidd Bikkannavar scanned his passport, placed his hand on a fingerprint reader, and watched as the automated customs kiosk spat out a receipt with a black X drawn across it.It was January 31. Bikkannavar had just arrived at Houston’s George Bush Intercontinental Airport after a nine-hour flight from Santiago, Chile, where he’d competed in a two-week race from the southern tip of the country to its capital in a solar-powered car. In a few hours, he would board a connecting flight back home to California, where he’s worked at the NASA Jet Propulsion Laboratory in Pasadena for over a decade. Bikkannavar, a 35-year-old engineer who was bornin Pasadena, designs technology for space telescopes like the enormous James Webb telescope that’s set to be launched into orbit in 2018.
But before boarding his next plane, Bikkannavar would have to clear customs and immigration. Usually, it’s a breeze: He’s a part of the Customs and Border Protection Global Entry program, whose members are waved through the line after just scanning their passport and fingerprints. But the receipt with the X meant things wouldn’t go so smoothly this time.
He presented it to an agent and was promptly led to a holding room. The customs checkpoint had only been open for business for 10 or 20 minutes, so the room was mostly empty. But several occupied cots were arranged in the room, suggesting that some people had spent the night. A table was arranged with peanut butter biscuits, crackers, and instant noodle cups.
After about 40 minutes, Bikkannavar was called up. He was led to a small door labeled “Interview Room,” and seated across from a border agent, who said he needed to search Bikkannavar’s things.
Bikkannavar asked why he was singled out for questioning, but the agent wouldn’t tell him. There can’t have been any suspicion about his identity, Bikkannavar thought: Not only was he a member of Global Entry—a program that requires applicants to submit to an extensive background check and fingerprinting—but his work at NASA requires him to be vetted regularly by the federal government. He was, he thought, a particularly known entity.“I’m always super cooperative about this stuff. This isn’t a story about me being super offended and being inconvenienced,” Bikkannavar told me. “I get it. I was with them up to this point.”
But the agent never touched Bikkannavar’s bag—instead, he asked for his smartphone. Bikkannavar handed it over, assuming the agent might just want to inspect it to make sure it wasn’t something more dangerous in disguise. The agent turned it over in his hand and asked for the passcode.
Bikkannavar was taken aback. The phone was Jet Propulsion Lab property, he explained, pointing out the barcode stuck to the back. It was his duty to protect its sensitive contents, and he couldn’t give out the passcode.
The border agent wouldn’t relent. He needed to access the device, he said, and had the authority to do so. He’d handed Bikkannavar a document titled “Inspection of Electronic Devices” when they first sat down, and Bikkannavar gave it a quick scan. The document claimed that CBP had the right to search “all persons, baggage, and merchandise arriving in, or departing from, the United States.” On the backside, in fine print at the bottom, there was a section with the heading, “Consequences of Failure to Provide Information.” The section said that giving up the information is “mandatory” and not cooperating could lead to the “detention and/or seizure” of the electronic device in question.
Bikkannavar didn’t feel like he had a choice. “I’d read the headlines of people being stranded in airports and having problems entering the country, so I was still in the mode of being as cooperative and polite and courteous as possible,” he said to me. Just a few days prior, President Donald Trump had signed an executive order that excluded nationals of seven Muslim-majority countries from entering the U.S. Bikkannavar, a U.S. citizen, would not have been affected by the new policy, which has since been temporarily put on pause by a federal court—but turmoil and confusion at the border had led to many people being improperly detained.
>What’s more, he said, he wasn’t sure of his legal rights in that moment. In the CBP interview room, did he still have the Fourth Amendment rights that he’d have if he were stopped by police on the street?
That’s a question I addressed in a story last week. Although the Fourth Amendment protects people from unreasonable search and seizure in the U.S., border agents have a very wide latitude to conduct searches—and often do so in situations that wouldn’t meet the standards of reasonable suspicion required elsewhere in the country. A new proposal from Homeland Security Secretary John Kelly would codify invasive digital searches into policy: He recently told a panel of U.S. representatives that he’s considering a rule that would allow agents to turn away visitors if they didn’t submit their browsing history and device or account passwords. It’s not clear whether the proposal would apply to U.S. citizens as well.
Bikkannavar gave up the phone’s passcode to the agent, who immediately wrote it down on a notepad. He was led back to the waiting room, where he sat for another 30 minutes.
The agent eventually emerged with Bikkannavar’s phone and handed it back to him. CBP had run “algorithms” on the device, the agent said, to search for threats. It came up clean, so Bikkannavar was free to go. His flight to Los Angeles was boarding, so he ducked out of the office without asking the agent what had been done to the phone in detail. But given the circumstances, and the document he’d been given, Bikkannavar felt it safe to assume that CBP had copied the contents of his work phone.
As soon as he touched down at LAX, Bikkannavar headed into work. “The second that phone was out of my sight and they had the PIN—right away, I knew I’m reporting the hell out of this,” he said. “This is a huge, huge violation of my work policy. This is a matter of great concern.” Bikkannavar declined to share details about what sort of information was on the phone. But since it was connected to both personal and sensitive work accounts, losing control of the device was no small matter. . .