Bills Would Require Warrant to Search Devices at Border

April 4, 2017–Legislation was introduced in the House and Senate today that would generally require a warrant based on probable cause before law enforcement authorities could search digital devices such as mobile phones and laptop computers at the U.S. border. The Protecting Data at the Border Act, which was introduced by Sens. Ron Wyden (D., Ore.) and Rand Paul (R., Ky.) and by Reps. Jared Polis (D., Colo.) and Blake Farenthold (R., Texas), “shuts down a legal Bermuda Triangle that currently allows law enforcement agencies to search Americans’ phones and laptops – including pictures, email, and anything on the device and possibly the cloud – when they cross the border without suspicion or a warrant,” according to a news release on the legislation. “Press reports indicate these searches have spiked over the past year.”

“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,” Sen. Wyden said.

“As the Supreme Court unanimously recognized in 2014, innovation does not render the Fourth Amendment obsolete,” said Sen. Paul. “It still stands today as a shield between the American people and a government all too eager to invade their digital lives. Americans should not be asked to surrender their rights or privacy at the border, and our bill will put an end to the government’s intrusive practices.”

“The government should not have the right to access your personal electronic devices without probable cause,” Rep. Polis said. “Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location. This bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents don’t continue to violate essential privacy safeguards.”

“Just because you cross the border doesn’t mean the government has a right to everything on your computer,” said Rep. Farenthold.

The legislation would ban authorities from denying or delaying entry to the U.S. if someone declines to provide their digital information without a warrant, although it also permits “for broad emergency exceptions based on the existing wiretap statute and the USA Freedom Act, requiring the government to get a warrant after the fact,” a fact sheet on the measure noted. The exceptions deal with these emergency situations: (1) the “immediate danger of death or serious physical injury to any person”; (2) “conspiratorial activities threatening the national security interest of the United States”; or (3) “conspiratorial activities characteristic of organized crime …”

“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. This bill would ensure that the government demonstrates a good reason for searches at the border, and that a judge agrees,” said Greg Nojeim, director of the Center for Democracy & Technology’s Freedom, Security, and Technology Project. -Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily