More than 225 years ago, the First U.S. Congress carved out an exception to the Fourth Amendment’s search warrant requirement, allowing for warrantless searches at the border. Until recently, this was limited to the people and their physical items, but federal agents can now search your phones and computers to look at photos, read emails, watch videos — all without having to demonstrate probable cause. A new piece of bipartisan legislation hopes to close that loophole, at least for U.S. citizens and permanent resident aliens.
The Protecting Data at the Border Act [PDF] would prevent warrantless searches of “any electronic equipment belonging to or in the possession of a United States person” at the border. It would also make it illegal for agents to deny entry or exit based on refusal to comply with a warrantless search request; though again, this only applies to “United States persons.”
The “United States person” qualification is important, as it’s a very specific term, defined in the Foreign Intelligence Surveillance Act as a U.S. citizen or a permanent resident alien. Thus, tourists and other visitors to the U.S. would still be subject to warrantless searches.
Still, this is a rare piece of legislation with bipartisan support in both the Senate — where it’s being introduced by Ron Wyden (OR) and Rand Paul (KY) — and in the House, where the lead sponsors are Jared Polis (CO) and Blake Farenthold (TX). These lawmakers all agree that something needs to be done to curb invasive searches at the border.
“Americans’ Constitutional rights shouldn’t disappear at the border,” said Wyden. “By requiring a warrant to search Americans’ devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data.”
Adds Rep. Farenthold, “Just because you cross the border doesn’t mean the government has a right to everything on your computer.”
In Aug. 2009, the Department of Homeland Security clarified to [PDF] its Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE) agencies the government’s official position that warrantless searches of digital content were allowed at the border.
“In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law,” reads the DHS directive.
Five years later, the U.S. Supreme Court unanimous held in Riley v. California that police must have a warrant to search someone’s phone, even after that person has been arrested. This decision was an acknowledgement of the phone’s changing, now vital, role in daily life.
“Modern cellphones aren’t a technological convenience,” wrote Chief Justice Roberts in the court’s decision. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
The Riley decision doesn’t directly address the issue of border searches — that case involved a allegations of attempted murder — but critics of the border exception for digital devices argue that the ruling should apply to all law enforcement searches, regardless of location.
The Knight First Amendment Institute recently petitioned a federal court to compel DHS to make public data it has on the number and nature of the border searches performed by ICE and CBP since 2012.
“The indiscriminate search of Americans’ electronic devices at the border raises serious constitutional questions under both the First and Fourth Amendment,” reads the lawsuit. “People today store their most intimate information on their electronic devices, reflecting their thoughts, explorations, activities, and associations. Subjecting that information to unfettered government scrutiny invades the core of individual privacy and threatens free inquiry and expression.”
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