Refugee Executive Orders

February 13, 2017

          President Trump’s recent Executive Order suspending refugee admissions into the United States made headlines around the world.  Let us look at one aspect of the Order that may affect every one of us at some time.  As those affected by the Executive Order flew into American airports, they were detained and asked to hand over their phone contacts and social media information.  If they refused, they could be denied entry into the U.S.  We can look at two different issues highlighted by this situation.

          The first question is whether law enforcement is allowed under the Executive Order to take someone’s cell phone information.  The Fourth Amendment to the Constitution protects us from unreasonable searches and seizures, such as those conducted without a warrant or without probable cause.  However, there is an exception to that rule at international borders.  When anyone enters the country, border patrol agents can perform searches and seizures without a warrant or probable cause.  Airports are considered international borders no matter where they are since there is no way to perform a security check before they land.

          Even before the Executive Order was signed, border patrol agents had a lot of authority.  Searches at international borders can affect both citizens and non-citizens, and border patrol agents have several different ways of getting electronic information.  If asked by a border patrol agent to give a password for an electronic device, you can refuse to do so.  However, they can either copy the information from the device in order to access it another way, or they can simply seize the device and wait for a court order demanding that you give up your password.  Refusal to cooperate can even prevent your admission into the country.

          Social media information is even easier to get for border patrol agents.  Because social media is public by design, you don’t have as much of an expectation of privacy to that information.  A visa waiver program even began requiring applicants to disclose their social media accounts in December.

          The second question in this scenario is broader, and could affect anyone in the country:  Can law enforcement inside the country force you to give up your phone password?  The answer is a little murky.

          The question of whether someone has to give up their phone password falls under the Fifth Amendment.  The Fifth Amendment protects a person from having to testify against oneself, which is how we get the common phrase “pleading the Fifth.”  Several courts have weighed in on whether giving up a phone password falls under the category of having to testify against yourself.

          In December, a Florida court ruled that a phone password was not protected under the Fifth Amendment because the password itself does not give up any information about the crime charged.  Before that, a Virginia court in 2014 and a federal court in Michigan in 2010 both said the Fifth Amendment does cover a phone password.  They both relied on a U.S. Supreme Court decision which stated that a person cannot “be compelled to reveal the combination to his wall safe” and then applied that logic to smartphones.

          However, law enforcement can use your fingerprint to unlock your phone.  Because law enforcement can easily access your fingerprint, much like your voice, signature, or even a blood sample, using it to unlock a phone does not violate the Fifth Amendment.

As a result, if you want to protect your electronic information, you may have to sacrifice the convenience of opening your smartphone with a touch of your finger in favor of a secure password.