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Pass the Protecting Data at the Border Act

This blog post was first published in The Hill on September 28, 2017.

The federal government sees the U.S. border as a Constitution-free zone. The Department of Homeland Security (DHS) claims that border officers—from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—can freely ransack travelers’ smartphones and laptops and the massive troves of highly personal information they contain. This practice is an unconstitutional invasion of privacy and free speech rights. Congress can and should fix this problem by enacting the bipartisan Protecting Data at the Border Act (S. 823 and H.R. 1899).

The need for reform is urgent. In the last two years, DHS more than tripled the number of border device searches. It conducted about 8,500 in fiscal year 2015, about 19,000 in fiscal year 2016, and is on track to conduct 30,000 in fiscal year 2017. DHS’s written policies specify that border officers may search electronic devices “with or without individualized suspicion.”

Innocent Americans from all walks of life have been forced to turn over and/or unlock their devices for data searches at the border. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) recently filed suit against the government on behalf of 11 Americans whose devices were searched without a warrant at the border. None of the plaintiffs have been subsequently charged with any violation of law.

Our smartphones and laptops contain our emails, text messages, photos and browsing history. They document our travel patterns, shopping habits and reading preferences. They expose our love lives, health conditions, and religious and political beliefs. They reveal whom we know and associate with. The EFF/ACLU lawsuit argues that warrantless devices searches at the border violate travelers’ rights to privacy under the Fourth Amendment, and freedom of speech and press, private association, and anonymity under the First Amendment.

The Protecting Data at the Border Act was introduced in April by Sens. Ron Wyden (D-Ore.), and Rand Paul (R-Ky.), Reps. Jared Polis (D-Colo.), Blake Farenthold (R-Texas), and Adam Smith (D-Wash). It would protect our digital privacy and free speech rights in several important ways.

First, the bill would require government officials to obtain a judicial warrant based on probable cause before accessing the contents of an electronic device in the possession of a U.S. citizen or lawful permanent resident at the U.S. border. There’s nothing new about protecting the significant privacy interests that people have in their electronic devices. In 2014, the U.S. Supreme Court ruled in the landmark case Riley v. California that the Fourth Amendment requires police to get a warrant before searching cell phones of arrested persons, stating that: “With all they contain and all they may reveal, they hold for many Americans the privacies of life.”

Second, the bill would prohibit border officers from denying entry into or exit from the United States by a citizen or green card holder if they refuse to provide their device password or unlock their device.

Third, the bill would address the problem of border officers coercing travelers into letting officers search their devices. Officers wear uniforms, carry weapons, restrict travelers in unfamiliar areas, and seize their passports. Travelers are often exhausted after a lengthy international trip, or in danger of missing a connecting flight. Officers ask pointed questions, such as: “If you have nothing to hide, then why don’t you let me search your phone?” When a traveler complies, officers may later claim that the travelers voluntarily “consented” to the search. The bill would require border officers to notify travelers—before requesting consent to search their devices—that they have the right to refuse. The bill also would require any consent to be written.

Fourth, the bill would require border officers to have probable cause that the traveler committed a felony before confiscating their electronic device. Today, border officers confiscate devices for weeks or months at a time, based on no suspicion at all.

Fifth, the bill would forbid border officers from keeping information they obtained from a traveler’s device, unless the information on the device amounts to probable cause that the traveler committed a crime. Under the government’s current policies, border officers may keep information even if there is no suspicion of crime.

Sixth, the bill contains a strong enforcement tool: evidence gathered in violation of these rules would not be admissible in court.

Finally, the bill would require the government to gather and publish statistics regarding border searches of electronic devices, including how officers obtained access (e.g., via warrant or consent), the breakdown of U.S. versus non-U.S. persons whose devices were searched, the countries from which travelers arrived, and the perceived race and ethnicity of travelers subjected to these searches.

The border isn’t a Constitution-free zone. Congress should enact the Protecting Data at the Border Act. Everyone who opposes the federal government’s overreach should contact their senators and representatives, and urge them to co-sponsor and pass the bill.

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