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By Bruce Sussman
Wed | Apr 3, 2019 | 8:10 AM PDT

If you care about data privacy, including the privacy of the devices you travel with, then this story may give you chills.

And it begs the question: Can the Border Patrol do a phone search? And can the Border Patrol demand the right to search your laptop? 

Former Mozilla CTO Andreas Gal, a U.S. citizen who now works for Apple, just shared about a sudden encounter with armed U.S. Border Patrol agents at San Francisco International Airport.

Gal is an outspoken data privacy advocate who openly opposes mass surveillance efforts by the U.S. government. 

And he believes the government was trying to send him a message.

Privacy showdown at SFO

At the end of last year, he landed at SFO after a business trip to Sweden.

He went to the Global Entry kiosk. Think of it like TSA PreCheck on a global scale, to speed things up as you enter a new country.

And when he stood at the Global Entry kiosk, that is the point where his frightening ordeal began, as he writes in a Medium post:

On this trip, the kiosk directed me to a Customs and Border Patrol agent who kept my passport and sent me to secondary inspection. There I quickly found myself surrounded by three armed agents wearing bullet proof vests. They started to question me aggressively regarding my trip, my current employment, and my past work for Mozilla, a non-profit organization dedicated to open technology and online privacy.

The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop. This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.

He claims to have asked for permission to call Apple or an attorney to see if it was okay to unlock his devices, given the proprietary information they carried. His laptop had a red sticker on it: “PROPERTY OF APPLE. PROPRIETARY.” And the phone had a sticker with a serial number and its lockscreen displayed the legend “Confidential and Proprietary."

Despite these things and his requests to call an attorney, Border Agents allegedly denied his requests, told him he had no right to make calls, and threatened to confiscate his devices.

So he dug in and refused to unlock his iPhone and his MacBook Pro.

Not a random search

Because of the questions border agents asked, Gal believes the search was not random and was meant to intimidate him.

He wonders about the reasons.

Was it was because he is outspoken about data privacy? Maybe it was because he has publicly opposed mass surveillance techniques used by the U.S. government? Or is it his public disdain for President Trump?   

Regardless of the why, he says his run-in with armed border agents on U.S. soil has changed things:

If the government intended to scare me, they certainly succeeded. 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.

According to an ACLU complaint now filed against U.S. Customs and Border Protection, the agents violated Gal's rights, including his Fourth Amendment rights which protects against unreasonable search.

The ACLU is asking CPB to investigate its officers for six things:

  1. conducting searches of electronic devices without a warrant or probable cause
  2. failing to properly instruct travelers on the Directive’s protocols, including the consequences of refusing to comply with a demand to search an electronic device
  3. threatening persons with criminal prosecution when those persons request access to counsel before determining whether to provide passcodes to unlock an electronic device, or access to their employer before determining whether to provide passcodes to unlock an employer-owned device
  4. singling out persons for secondary screening and searches of electronic devices based on First Amendment-protected expression or associations
  5. examining or retaining information found on electronic devices that is protected by the First Amendment
  6. retaliating against travelers by revoking their Global Entry status or by other means

And question number six is about what Gal says he received as a consequence  for standing his ground.

Border agents removed him from the Global Entry program, with no explanation.

In the end, he walked out of SFO with both his phone and his laptop, still locked, and no charges of any kind.

And his situation has informed the rest of us on how to protect our data privacy if we end up in the same type of intimidating encounter.

[RELATED: U.S. Citizen Sues Border Patrol in Phone Search Fight at LAX]

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