Privacy SOS

You have more rights to privacy in your phone when arrested than when at the airport

 

Last week, upon returning to his home state from a trip abroad, the mayor of Stockton, California got an abrupt education in post-9/11 constitutional decline.

Ars Technica reports:

Stockton, California Mayor Anthony R. Silva attended a recent mayor’s conference in China, but his return trip took a bit longer than usual. At the San Francisco International Airport (SFO) this week, agents with the Department of Homeland Security detained Silva and confiscated his personal cell phone among other electronics. According to comments from the mayor, that may not even be the most alarming part.

“Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property,” Silva told SFGate. “In addition, they were persistent about requiring my passwords for all devices.”

The mayor’s attorney, Mark Reichel, told SFGate that Silva was not allowed to leave the airport without forfeiting his passwords. Reichel was not present for Silva’s interaction with the DHS agents, either. The mayor was told he had “no right for a lawyer to be present” and that being a US citizen did not “entitle me to rights that I probably thought,” according to the paper.

As of Friday, Silva had not yet received his property from the SFO detention.

A local newspaper has reported that Silva’s detention and the DHS seizure of his electronics and passwords may be related to a federal investigation into the Stockton mayor. If that’s true, it’s deeply disturbing. Federal agents should not be able to use the “border exemption” to the Fourth Amendment to search and seize electronics, particularly when they may seek to use the information seized in a criminal investigation.

Earlier this year, the Supreme Court ruled in Riley that police must obtain a separate search warrant to search your cell phone if you are arrested. The nation’s highest court recognized that our phones contain far too much sensitive personal information to allow police to rifle through them without specific probable cause and judicial approval. In a more recent case, a federal court held that the Fifth Amendment protection against forced self-incrimination prohibits the government from requiring you to give up your smartphone password.

But under the 100-mile “Constitution Free Zone” rule, if the federal government wants to search your electronics without getting a warrant, it can simply wait for you to visit an airport or other border crossing. Unfortunately, legal challenges to this absurd, authoritarian legal regime have thus far failed.

That means someone who is arrested on suspicion of having committed a crime has more privacy rights to their sensitive smartphone data than someone who is traveling through an airport. Makes no sense, right? That’s what happens when courts defer to “national security” emergency rule.

© 2018 ACLU of Massachusetts.