ALBANY, California—As he sat in a darkened corner of a neighborhood bar, Aaron Gach, an artist and lecturer at a local art college, told Ars about what happened to him in a February 2017 episode at San Francisco International Airport, where he agreed to unlock his iPhone and have it be searched by border agents rather than risk being detained and delayed further.

"I thought, in the moment, that if I gave in and turned over my phone that maybe they were being honest and wouldn't take my other belongings," he said, sipping a Death and Taxes beer.

He turned out to be right. After he unlocked his iPhone SE, agents took it out of sight for five to 10 minutes before giving it back and sending him on his way. Gach still has no idea why.

Gach's case is just one of a rapidly increasing number of border searches of digital devices. Customs and Border Protection has not provided any public explanation as to why. However, the agency maintains that such searches are exceedingly rare.

In March 2017, Robert Brisley, a CBP spokesman based in Atlanta, sent Ars a lengthy statement detailing the agency's policy regarding such searches. That statement notes that the number of such electronic device searches remain minuscule, pointing out that, in 2016, "CBP processed more than 390 million arrivals and performed 23,877 electronic media searches. This equates to CBP performing an electronic search on 0.0061 percent of arrivals."

The 43-year-old artist also told Ars that he had been involved in political activism "for a long time" (Greenpeace, Copwatch). Although Gach has had interactions with law enforcement before, he has no criminal record. He knew of the "border exception" to the Fourth Amendment. But Gach also knew that he had a family to get back to, a young daughter that he regularly accompanies to school, and a job awaiting him at the California College of the Arts in nearby Oakland. As he put it, he only agreed to unlock the phone while under what he described as "psychological duress coming off 20 hours of travel."

After the incident, Gach posted about it on Facebook and got some attention within the art community.

However, on Thursday, six attorneys from the American Civil Liberties Union filed an eight-page "administrative complaint" on Gach’s behalf. They hoped to get some answers from the Department of Homeland Security, the parent agency of Customs and Border Protection.

The ACLU argued that the non-consensual search of Gach's phone was unconstitutional—despite the prevailing "border exception" to the Fourth Amendment. The group also demanded a further explanation as to why an increasing number of digital devices have been seized and searched at the border this year alone. The ACLU has also filed a Freedom of Information Act request about Gach's travel records on his behalf.

In late March 2017, the Knight First Amendment Institute based at Columbia University sued the Department of Homeland Security and Immigration and Customs Enforcement. The Institute is seeking "statistical, policy, and assessment records regarding the government's searches" of digital devices at the United States border.

“Sorry for the inconvenience”

As Gach laid out in a narrative that he posted to Google Docs on February 23, 2017, he had just returned to California after having completed a 20-hour return trip from Belgium, where had participated in an art exhibition. Immediately after stepping off the jetway and into the terminal, Gach thought that something strange was happening: all passengers were being required to show their passports well before clearing customs to enter the United States.

Once Gach arrived at a Customs and Border Protection checkpoint and had his passport scanned, he was told to move to secondary screening. There, his passport was taken and he was told to wait. He was specifically told not to use his phone.

As Gach began to draw the scene in a sketchbook, he was escorted over to a small desk where an agent began peppering him with questions. Gach recalled a surveillance camera mounted above and behind him, possibly with the aim of capturing the screen of any device that he produced.

"Sorry for the inconvenience," the agent told him. "We should have you out of here in just a moment. I hope you won't mind if we just ask a few questions."

According to Gach, the agent asked numerous basic questions ("What’s your name? Can you spell that?") despite seemingly already knowing the answers—he held Gach's passport in front of him. As this interrogatory continued, the questions got more and more detailed: "Did you book your own travel? Who booked the travel? And your apartment?" He responded to all of the questions.

“That doesn’t sound like much of a choice.”

After a few minutes, the agent asked: "Can we check your phone to verify the info you provided?"

This, Gach recalled, was a crucial moment. He asked to see the written policies authorizing their actions, which took some extra time to produce. The agent was not "overly aggressive," but remained assertive.

"Is there a problem with my travel arrangements?" Gach asked.

"I'm sorry but I can't provide the details," the agent replied.

"Is there a concern about the arts venue?"

"I can't really say at the moment."

"What is it you want to check on my phone?" said Gach. "Is it something in particular that I can just show you?"

"We're looking for information pertinent to our investigation."

"Do I have a choice in the matter? What are my rights in this situation? As a US citizen, don't I have equal protections under the Constitution regardless of whether or not I am in an airport or outside of one?"

"I understand your concerns, and I'm hoping we can get you on your way as soon as possible. Of course you have a choice, but we can also be dicks and just take your phone as part of our investigations if we see fit. Your phone and its contents are part of your personal effects which as subject to examination when crossing any border into the US."

"That doesn't sound like much of a choice. What happens if I choose not to unlock my phone?"

"We can detain your phone and any personal effects needed to assist in our investigation."

After more questions, the agent cut to the heart of the matter:

"Is there any reason in particular why you don't want to turn over your phone?"

"I believe strongly in the Constitution and in my right to privacy," Gach replied. "I have nothing to hide but the only way I know if I actually have any rights is if I try to exercise them. But it sounds like I don't actually have those protections in this situation."

Eventually, the agent asked Gach if he had another bag, and he sent a colleague to go get it. Upon returning with the bag, the agents began going through it, item by item. The other agent rapidly began approaching his laptop, which contained some data that Gach hadn't backed up, as well as lectures, notes, and his students' grades.

As Gach wrote:

At this point they seemed unable to find the access to my laptop, and I became concerned that not unlocking my phone would mean turning over my laptop and all my belongings. There was a chance that they would eventually find and search my laptop anyway, but I thought if I turned over my phone, they might be satisfied with that. I unlocked my phone and handed it over. The agent asked for my passcode. I selectively ignored him and chose instead to answer the other agent's questions about some items in my bag. I assume the agent with the phone decided to take it while it was still unlocked rather than wait for me to answer and risk having the phone relock and me change my mind.

Once Gach handed the phone over, the agents took it out of his sight for several minutes before returning it and thanking him. The entire interaction, from the time he was sent to secondary to the time he could leave, lasted about 90 minutes.

Support and defend

The most recent public document to date on the CBP’s actual policy appears to be an August 2009 Department of Homeland Security paper entitled "Privacy Impact Assessment for the Border Searches of Electronic Devices." That document states that "For CBP, the detention of devices ordinarily should not exceed five (5) days, unless extenuating circumstances exist."

The policy also states that CBP or Immigration and Customs Enforcement "may demand technical assistance, including translation or decryption," citing a federal law, 19 US Code Section 507. A related document says that "officers may seek such assistance with or without individualized suspicion." Refusing to comply with this statute is "guilty of a misdemeanor and subject to a fine of not more than $1,000." It does not mention the amount of time that an in-airport detention could potentially last.

After getting home, Gach wiped his iPhone SE and immediately bought a used phone and used laptop that he’ll take on future trips abroad—he plans to go to Germany in June.

"They can take the devices if they want," he said. "But now it’s a different ballgame."

In the weeks that have gone by since his incident, Gach still hasn’t come up with a reason as to why he was stopped. Neither has he been provided with one.

"I can’t tell you how many times people have asked me: 'why do you think you were stopped?'" he told Ars. "That realm of speculative is unsettling. It’s a definite chilling effects—it creates a paranoid vibe."

But in the time that he's had to reflect on his experience, Gach has become even more resolute in his efforts to "hold the government accountable and protect people's rights."

Gach cited the federal oath of office, which is sworn to the US Constitution, as his lodestar.

"When the CBP takes that oath of office and tells you that you don’t have the Fourth Amendment at San Francisco Airport—that raises huge questions for me," he said.

"The Fourth Amendment is one sentence! And it's pretty clear. It also says something about the places to be searched and the things to be seized. What's the specific area that's being searched? In the case of the CBP there's none of that. I read the Fourth Amendment, and I don't find the justification to have that authoritarian overreach."