A Vancouver man was denied entry into the United States after a US Customs and Border Patrol officer read his profiles on the gay hookup app Scruff and the website BBRT.
The officer suspected the man was a sex worker because he found messages from the man saying he was “looking for loads,” and assumed it meant he was soliciting sex for cash.
While the misunderstanding might sound funny, it underscores the bitter reality that non-Americans have very few rights at the border, and that even suspicion of criminal behaviour can be used to deny non-Americans entry.
André, a 30-year-old Vancouver set decorator who declined to give his full name for fear of retaliation from US Customs, describes the experience as “humiliating.”
André says he was planning to visit his boyfriend, who was working in New Orleans. But when he was going through Customs preclearance at Vancouver airport last October, he was selected for secondary inspection, where an officer took his phone, computer and other possessions, and demanded the passwords for his devices.
“I didn’t know what to do. I was scared, so I gave them the password and then I sat there for at least an hour or two. I missed my flight,” André says. “He came back and just started grilling me. ‘Is this your email?’ and it was an email attached to a Craigslist account for sex ads. He asked me, ‘Is this your account on Scruff? Is this you on BBRT?’ I was like, ‘Yes, this is me.’”
When the officer asked him what he meant by “looking for loads,” André says he tried to explain, but the officer kept grilling him.
“I could tell just by his nature that he had no intentions of letting me through. They were just going to keep asking me questions looking for something,” he says. “So I asked for the interrogation to stop. I asked if I go back to Canada am I barred for life? He said no, so I accepted that offer.”
A month later, André attempted to fly to New Orleans again. This time, he brought what he thought was ample proof that he was not a sex worker: letters from his employer, pay stubs, bank statements, a lease agreement and phone contracts to prove he intended to return to Canada.
When he went through secondary inspection at Vancouver airport, US Customs officers didn’t even need to ask for his passwords — they were saved in their own system. But André had wiped his phone of sex apps, browser history and messages, thinking that would dispel any suggestion he was looking for sex work. Instead, the border officers took that as suspicious.
“They went through my computer. They were looking through Word documents,” André says. “I had nude photos of myself on my phone, and they were questioning who this person was. It was really humiliating and embarrassing.”
“They said, ‘Next time you come through, don’t have a cleared phone,’ and that was it. I wasn’t let through. He said I’m a suspected escort. You can’t really argue with them because you’re trapped,” he says.
André says he lost at least $1200 on non-refundable flights and hotels on the two cancelled trips.
But non-Americans have few options when they’re at the border. While Americans have an absolute right of entry into the country, they can still be detained or have their electronic devices seized. A non-American who is asked to hand over their devices and passwords is faced with the dilemma of protecting their privacy or potentially being denied entry to the US.
For Esha Bhandari, staff attorney for the speech privacy and technology project at the American Civil Liberties Union, this presents a host of civil rights issues.
“Our mobile devices contain every detail of our lives. Financial information, health information, personal relationship information. If you’re a doctor or a lawyer, you might have attorney-client or doctor-patient privileged material on there. Some people that travel for business have very sensitive business information, trade secret information,” she says.
“I’m hopeful that CBP will put in place policies that limit what they’re searching and that they’re only conducting searches when they’re absolutely necessary for purposes of immigration and custom, rather than doing an end run around constitutional limits on search authority and looking through people’s entire private lives,” she says.
“Thus far, CBP has asserted a very broad authority to search visitors to the United States,” she says. “There aren’t a lot of cases testing the limits of that, especially in this new digital context.”
There are several websites that offer advice to protect the privacy of your data at the border, but ultimately, if US Customs officers want your data, they will either get it or keep you out of the country. You can limit the risk to your privacy by not traveling with your devices or deleting apps, messages and photos from your devices, and logging out of social media sites before you travel.
“For Scruff members traveling to a country that may demand access to profiles and social media apps before entry, simply deleting the app and reinstalling upon re-entry is always an option,” says Scruff CEO Eric Silverberg. “Scruff synchronizes your profile to the cloud, so after reinstalling you may login to regain access to your messages, favourites, albums, etc.”
“That said, the best defense against unwarranted searches and seizures by the government is to work to elect leaders who share these ideals and values,” Silverberg says.
Because US Customs operates on Canadian soil to provide preclearance at many Canadian airports, issues of Canadian Charter rights are also at play. The Canadian government has introduced a bill to implement an agreement reached under Harper and Obama that would greatly expand US Customs’ power to detain, question and strip-search people in Canada trying to enter the United States.
The Canadian Civil Liberties Association is reviewing the bill.
“We have concerns,” says Brenda McPhail, director of the Privacy, Technology & Surveillance Project at the CCLA. “Clearly we wouldn’t support an increase in powers that would result in Canadians not being allowed to disengage and return to their homes.”
For Jon Davidson, legal director of the US LGBT organization Lambda Legal, André’s experience also speaks to the ignorance and prejudice of front-line officers.
“This is outrageous. He should file a complaint,” Davidson says. “Their agents need cultural awareness training to not misunderstand that people who simply are leading a normal sex life are not prostitutes.”
Editor’s note, Feb 20, 2017: An earlier version of this story incorrectly stated that a US Customs officer would need a warrant to search an American citizen’s phone or laptop at the border.