AILSA CHANG, HOST:
Amir Makled is a Michigan-based attorney and a U.S. citizen who was recently detained by federal agents while returning home from a family vacation. They asked him to hand over his cell phone. He refused, but he did eventually agree to let them see his contacts. When we spoke to Makled earlier this week, he told us that he suspects he was singled out because one of his clients is a pro-Palestinian campus protester.
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AMIR MAKLED: It's setting a terrifying precedent. If government agents can target a lawyer at the border, what's stopping them from doing it to anyone who dares to speak out?
CHANG: I will note that Customs and Border Protection has not returned NPR's request for comment, but the agency has disputed Makled's reasoning for his detention. We wanted to know more about what the rights of U.S. citizens are in situations like these, so we called up Sophia Cope. She's a senior staff attorney at the Electronic Frontier Foundation, a nonprofit that focuses on digital civil liberties. Welcome.
SOPHIA COPE: Thanks for having me.
CHANG: Well, thanks for being with us. OK, so just to start us off, can U.S. citizens refuse these sorts of requests - like hand over your cell phone, show us your contacts - when they're at the border?
COPE: Yeah. So because citizens have an absolute right to reenter the country, they have a bit more leverage to, you know, deny a request or refuse to comply with requests to unlock their phone. But that doesn't mean that there aren't going to be consequences. They could be detained for several hours. Their phone could eventually be confiscated. So even U.S. citizens have to think about those potential consequences.
CHANG: The trade-offs. OK, well, what about lawful permanent residents? How much leeway do they have to potentially refuse?
COPE: Yeah. Technically, they also have to be let back into the country, but as we've seen in sort of a nonborder contexts, the government and the current administration is pretty willing to question the status of LPRs. And so we always say that, you know, they should be especially kind of mindful and thoughtful about how they comport themselves at the border.
CHANG: So if you are someone who is concerned about having your phone searched at the border, what should you do to prepare?
COPE: Yeah. So what we say to people is, first, you must have a plan before you travel. You don't want to be in the line to present yourself before the border officer and then start thinking about what you're going to do. And then, unfortunately, one size doesn't fit all. We urge people to think about lots of different what we call risk assessment factors that go to the likelihood that you're going to be pulled into secondary inspection...
CHANG: OK.
COPE: ...And then ultimately, how you prepare your devices and your data for that.
CHANG: Talk about some of those risk factors. What kinds of factors would make someone more susceptible to being searched?
COPE: Travel history is a big one. You know, if you've been traveling to areas of the world that maybe are known for terrorism or drug trafficking or child sex tourism, that can be a red flag for CBP officers. Obviously, if you have prior law enforcement history, that could be potentially flagged in your travel profile. Other things that we urge people to think about is really the sensitivity of your data. If you are, let's say, a journalist that has confidential source information, a doctor or an attorney, where you have particular ethical obligations to protect data, then you should really think about not having that data on your device.
Most important is to backup your data, because if your device is seized or the data is corrupted during the search, then you're going to be out of luck. So you want to make sure that you have a backup of that data.
CHANG: What about encrypting some data on your phone?
COPE: We definitely urge people to always, regardless of whether they're crossing the border, have strong pass codes and have strong encryption on their devices. The current iPhone, for example, if you have it, you know, pass code protected, that automatically engages encryption. But that is sort of irrelevant if you've decided that it's in your best interest to comply with a request to unlock your device or give over your pass code.
CHANG: That is Sophia Cope, senior staff attorney for the Electronic Frontier Foundation. Thank you very much.
COPE: No, thank you. Transcript provided by NPR, Copyright NPR.
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