Law has been proposed requiring warrants to search electronics at US border
There’s a big area in the US where the Constitution doesn’t apply, at least when the Fourth Amendment right to be free from unreasonable search and seizure is concerned. It’s called the US border, or port of entry. In that area, you and your electronic devices, whether you’re coming or going to the US, can be searched without reason. You even can be forced to unlock or decrypt a device so the authorities can comb through your life, like your social media accounts, cloud accounts, you name it. This intrusion is known as the “border search exception” to the Fourth Amendment.
This invasive practice is on the rise, too. Consider that the Department of Homeland Security said it searched fewer than 5,000 mobile phones at the border without a warrant in 2015. The number mushroomed to 25,000 last year. And for the month of February, the DHS reports that it has already searched 5,000 devices of Americans and foreigners without a warrant at a border crossing.
Now, a bi-partisan group of lawmakers is proposing the unthinkable. Republicans and Democrats in both the House and the Senate on Tuesday floated legislation requiring US Customs and Border Protection agents to get a court warrant to search electronic devices of “United States persons.” That’s right—in an era when you can be accused of publishing fake news for even questioning the government, a few members of Congress want to expand your civil rights and require a judge to sign off on a device search.
“Americans’ constitutional rights shouldn’t disappear at the border. 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,” said Sen. Ron Wyden, a Democrat from Oregon. Along with Wyden, the “Protecting Data at the Border Act” is sponsored by Sen. Rand Paul, a Republican of Kentucky; Rep. Jared Polis, a Democrat of Colorado; and Rep. Blake Farenthold, a Republican of Texas.
It’s doubtful that the rest of Congress will listen to these lawmakers and adopt this legislation. For starters, John Kelly, the DHS secretary, won’t even respond to Wyden’s call to answer a few basic questions about how the border search exception is used in practice. Last month, Wyden sent Kelly a letter asking the following:
What legal authority permits CBP (Customs and Border Protection) to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password?
How is CBP use of a traveler’s password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?
What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to encrypted data? How are such demands consistent with the Fifth Amendment?
How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer passcode, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?
How many times in each calendar year [2012-2016] did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?
Wyden gave a March 20 deadline. He has yet to get a response.
However, the bill is getting widespread support from the privacy community, regardless of it likely being dead on arrival.
“A search of your cell phone or social media account is a direct look behind the curtain that covers the most intimate aspects of your life. A border stop shouldn’t be an excuse for extreme surveillance such as downloading the entire contents of your phone,” said Greg Nojeim, a director at the Center for Democracy & Technology.