Fifth Amendment Applies at Border, Including Refusal to Supply Device Access, Says EFF

Fifth Amendment protections apply at the border, giving people the right to refuse to supply passwords to their electronic devices in most circumstances, said the Electronic Frontier Foundation in a Wednesday blog post. EFF criminal defense staff attorney Stephanie Lacambra said the Fifth Amendment gives people the right to remain silent and to refuse to provide evidence that could be held against them. If a Customs and Border Protection (CBP) agent asks a question, a person can respond that he or she chooses to remain silent and ask for a lawyer, said Lacambra. CBP agents can pressure people to "voluntarily" talk and they’re "permitted to lie ... to convince you to waive your right to remain silent." Some courts have "held that a person's request for an attorney is enough to invoke the privilege against self-incrimination, even at the border. And that privilege includes refusing to provide the password to your device," she said, adding that other courts have been less protective. In the first six months of FY 2017, CBP reported searching electronic devices of nearly 15,000 international travelers to the U.S., more than in past years (see 1704110051). The agency has increasingly sought access to devices from American citizens and permanent residents as well, prompting a bipartisan bill requiring a warrant be obtained before searching such devices (see 1704050030 and 1703170019). Lacambra said refusing to provide a password results in different consequences depending on a person's status. CBP agents can't detain a U.S. citizen indefinitely though they may flag a person for heightened screening in the future. Agents may "raise complicated questions" about a green-card holder's status, and a foreign visitor may be denied entry, she said. Regardless of a person's status, CBP can seize a device and hold it for months, she added.