“Extreme Vetting” Proposals Causing Industry Extreme Angst: An estimated 200,000 visitors to the United States would be asked to turn over their cellphones to U.S. Customs and Borders Protection (CBP) agents and to answer questions regarding passwords and political ideology should the U.S. Department of Homeland Security (DHS) implement new measures that have been floated by DHS as a part of the Trump Administration’s proposed “Extreme Vetting” of overseas travelers to the USA.
Though no official proposal has been announced by DHS, widely circulated reports in the news media suggest that “extreme vetting” options for overseas visitors to the USA include the examining of cell phone contacts, pictures, social media passwords, and financial data. And the Wall Street Journal has reported that that DHS is also looking into ideological questionnaires for foreign travelers, including their views on the treatment of women and military targeting decisions.
The legal authority to do so seems be there. “There’s a theoretical legal basis for the vetting proposals: because there’s no inherent legal or constitutional right for foreigners (other than lawful permanent residents) to visit the U.S.,” wrote Noah Feldman in a piece for Bloomberg News, adding, “There’s nothing wrong with conditioning entry on disclosure of private information.” Feldman also suggested that the proposals might affect U.S. citizens as well, noting that, “Under long-standing Supreme Court precedent, the right against warrantless search and seizure doesn’t apply when you’re entering or leaving the country.”
At a hearing of the U.S. Senate Homeland Security Committee, after Sen. Claire McCaskill (D-Mo.) was sharply critical of the possibility that travelers would be asked to turn over their cellphones to CBP agents, Sen. Ron Johnson (R-Wisc.) asked DHS Secretary John Kelly about how many travelers would be affected, Kelly estimated that one-half of one percent of travelers would have their phones inspected.
According to our calculation, one-half of one percent of the 40 million overseas travelers that the U.S. National Travel and Tourism Office estimates will visit the United States in 2017 is 200,000. While this number is indeed a fraction of the total, the mere notion that visitors would be asked to turn over their phones and submit to questioning has produced a torrent of criticism from right and left and from U.S. citizens and prospective visitors from abroad.
Of all of the comments we’ve seen, one, in particular gives voice to what the U.S. inbound tourism industry fears: Susan Hall, a lawyer who heads up the technology and intellectual property team at the law firm of Clarke Willmott, which has offices through the UK, told The Guardian: “In the short to medium term, I think the answer is going to be avoiding all but absolutely essential travel to the United States.”