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.
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.”
…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.
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.
And the kicker:
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.
With great power comes great potential to be a dick.