A guide to protecting your privacy at U.S. borders
"The same precautions corporations require for trips to Beijing now make sense coming back into LAX," says Nathan Freed Wessler, deputy director with ACLU’s Speech, Privacy, and Technology Project
ACLU attorney Nathan Freed Wessler doesn’t take chances when he goes through a U.S. Customs and Border Protection (CBP) checkpoint: “I try to be very careful about what I bring,” the deputy director with the ACLU’s Speech, Privacy, and Technology Project told us. “I don’t bring my work laptop. I’m a lawyer with very sensitive client communications, including stuff involving lawsuits against the very agency that would be searching me.”
That may sound paranoid, but for Wessler — the guy who convinced the Supreme Court that cops need a warrant to grab your location data — it’s common sense. “I leave the phone at home and travel with a so-called burner. The same precautions corporations require for trips to Beijing now make sense coming back into LAX.”
We interviewed Wessler to learn what can happen when a U.S. citizen lands back in Trump’s America. His answers were chilling: CBP can copy every photo you’ve snapped, every Signal chat you’ve had, and every Google Doc you’ve edited — no judge, no warrant, no probable cause. They can keep you sweating in a secondary holding pen at the airport for five, six, seven hours — longer if you piss them off. And while they can’t legally bar you from re-entering your own country, they can confiscate your phone for months while they try to crack the lock code.
Over the course of our conversation, Wessler provided a playbook for citizens coming home: what questions you must answer, which ones you can kill with silence, how to neuter Face ID before the agent reaches for your head, and why a burner Chromebook wiped in the departure lounge isn’t crazy.
This interview has been split into three parts. Part one, presented below, covers rights of U.S. citizens coming back into the country with advice on what to do if you are interrogated. Part two, which will run next week, covers how to protect yourself from invasive searches of your phones and laptops. Part three will cover Wessler’s thoughts on the future of the rights of American citizens under Trump’s regime.
As a U.S. citizen, say you're entering customs, you just landed at the airport, and you're coming back home. What information are you legally required to give to a customs agent?
Wessler: So at the primary inspection station, you obviously have to give them your passport and answer basic questions about where you're coming from and your travel — questions to help them satisfy themselves that you are in fact a citizen. And then questions relevant to customs inspections. What do you have in your luggage? Is there an import duty on something? Did you declare fruits and vegetables? All those kinds of things.
Beyond that, U.S. citizens don't need to answer questions. You don't have to answer questions about your associations, your political beliefs, who you visited when you were abroad, your religious practice, none of that stuff that customs agents and border agents do ask people. You really don't have to answer any of that.
So if they say, for example, "What do you think of the president's policies?" and you say, "I don't want to answer that question," could they say, "Well, we're going to detain you for further questioning now?”
Wessler: The government can send U.S. citizens to secondary inspection for further questioning. There's not a lot you can do in the moment if a border agent sends you to secondary inspection — there's no way you can avoid going.
For U.S. citizens, you can be held up at the border for a few hours for questioning, but they eventually have to let you in [to the country]. You have an absolute right to come back home and get into the country. And so unless they have a reason to arrest you on criminal charges — and then it becomes a totally different kind of interaction — they have to let you go after whatever questioning they think they're allowed to do is satisfied.
Is there a limit to the number of hours that they can hold you?
Wessler: There's no hard limit. There have been cases that have said, “once you are getting past, say, five, six, seven hours, that's starting to look like too much.” But the cases all say it's contextual. And extraordinary cases might exist. So that leaves things a little squishy. I think most people who are U.S. citizens aren't held for more than a couple hours. But, of course, there's no way to guarantee — and there's no hard and fast rule that you can cite to the border agents to say, "Tick tock. We're past the time. You have to let me go now."
Say they take you into secondary inspection. They're questioning you, and you just don't say a word. Just say nothing. What can they do? Do they still have to let you go after a certain number of hours?
Wessler: Yeah. Unless they're legitimately asking a question because you have a fraudulent passport or something, and they're still trying to satisfy themselves that you actually are a U.S. citizen entitled to come in. Then that's the very, very rare circumstance where maybe things get a little weird. But assuming that you've satisfied them about that, and that you're not carrying anything that's prohibited from coming into the country, then yes, you have a right to answer none of their questions.
Everyone has to make their own practical decision about what they're comfortable with. Of course, some people think that things will go easier if they answer some questions, and some people are totally comfortable just clamming up and saying, "Look, I have no obligation to answer anything else. And so ask away. But when you're ready to let me go, I'm leaving," and that's totally fine to do.
Say you're pulled in for secondary screening, you realize that the questioning is something that's confusing to you, or you don't feel comfortable answering. But you don't have a lawyer's number. Suddenly, you want a lawyer — what are your options at that point when you're sitting in that room?
Wessler: Even if you have your lawyer's telephone number, and you tell them you want to talk to them, it's very unlikely that they're going to let you call them. It's different once they place someone under arrest, then that starts to trigger all the constitutional protections around having a lawyer.
It is best practice to have a lawyer's number with you. And if you think things are going sideways and they're starting to ask you questions that are making you real nervous — maybe they're asking harassing questions about your religious practice, your political beliefs. Maybe they're asking questions that you're thinking like, "Whoa. Sure sounds like they're accusing me of something. I'm not going to answer this without a lawyer" — you should say, "I'm not going to answer more questions without my lawyer. I have my lawyer's number. Can I get them on the phone?" It's worth a try. In our experience, they almost never allow that call to go through.
So give it a try. And if you don't have your lawyer's number, they're not going to provide a lawyer number to you in that situation. Unless and until you are actually under arrest, which hopefully you never get to.
At that point, I think it would just be good to say "Alright. Well, this is something that is beyond my level of comprehension, the questions you're asking me. And if you aren't going to let me have a lawyer then I'm just not going to answer any of your questions from this point on."
Wessler: Yes. That's a completely legitimate response. And there's nothing they can do to compel you otherwise.
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