Border Searches of U.S. Persons’ Digital Devices Would Require a Warrant

As promised by Sen. Wyden in February, a bill was introduced this week in Congress that would require U.S. Customs and Border Protection or other government agents to obtain a probable cause warrant before searching the digital devices of U.S. citizens and legal permanent residents at the border.

Sen. Wyden (D-OR) and Sen. Paul (R-KY) are original sponsors of the Protecting Data at the Border Act in the Senate (S. 823), while Rep. Polis (D-CO), Rep. Smith (D-WA), and Rep. Farenthold (R-TX) are taking the lead on this issue in the House (H.R. 1899).

This bill is timely. As NBC News recently reported:

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016. According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.

We have been arguing for a while that the Fourth Amendment requires a warrant based on probable cause for border searches of cell phones, laptops, and other digital devices that contain gigabytes of highly personal information.

We most recently made these arguments in an amicus brief before the U.S. Court of Appeals for the Fourth Circuit in the case U.S. v. Kolsuz. We have not distinguished between U.S. persons and foreign nationals—for example, Mr. Kolsuz, whose iPhone was searched twice by CBP and Department of Homeland Security officials without a warrant, is a Turkish citizen. We nevertheless support the Protecting Data at the Border Act, even though it more narrowly focuses on the rights of U.S. citizens and green card holders.

CBP unreasonably argues that the privacy interest travelers have in digital devices is no different than that of luggage or other physical items travelers may bring with them across the border, thus CBP applies to digital devices the traditional “border search exception” to the Fourth Amendment, which permits warrantless and suspicionless “routine” border searches.

However, there is nothing “routine” about unregulated government intrusion into a device that contains, as the Supreme Court has said, “the sum of an individual’s private life.” As the bill’s findings state, the privacy interest in digital data “differs in both degree and kind from [the] privacy interest in closed containers.”

In addition to the warrant requirement, the Protecting Data at the Border Act would prohibit the government from delaying or denying entry or exit to a U.S. person based on that person’s refusal to hand over a device passcode, online account login credentials, or social media handles to a border agent.

During an April 5 hearing in the Senate Homeland Security & Governmental Affairs Committee, Sen. Paul grilled DHS Secretary John Kelly (starting at 2:15) on CBP agents denying entry to Americans, or threatening to do so, for refusing to provide access to their cell phones. Sen. Paul said, “That’s obscene.” Secretary Kelly appeared woefully ignorant about what is happening with privacy at the border and even incorrectly asserted that border searches of digital devices have not “significantly” increased since President Trump took office. He promised to look into the issue and get back to Sen. Paul.

Please contact your members of Congress and urge them to co-sponsor the Protecting Data at the Border Act (S. 823/H.R. 1899)!

Also urge your representatives to put pressure on Secretary Kelly to answer Sen. Wyden’s questions from February, which he has yet to do.

If you want more information about how to protect your data when crossing the U.S. border, please read our new comprehensive technical and legal guide, as well as our pocket guide.