Congress

Lawmakers look to block border data searches

Shutterstock image (by Bruce Rolff): eyes in a binary tunnel. 

Under current law, Americans crossing the border into the U.S. can have their digital devices searched without a warrant. A bipartisan group of lawmakers is seeking to change that.

U.S. Customs and Border Protection officials have the legal authority to search the digital devices of anyone entering the country and to detain individuals who refuse to unlock or hand over passwords to laptops or cellphones.

The "Protecting Data at the Border Act" would exempt Americans and require law enforcement at the border to first obtain a warrant in order to search a digital device, just as law enforcement inside the country must do.

The bill seeks to define a clear difference in the applicable privacy law between "the digital contents" of online accounts and the physical contents of closed containers.

The bill states that government officials "cannot deny entry to Americans who refuse to surrender passwords, though it does allow law enforcement to delay entry up to four hours to determine whether the United States person will consensually provide an access credential, access, or online account information."

Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) and Reps. Jared Polis (D-Colo.) and Blake Farenthold (R-Texas) introduced the legislation in their respective chambers.

"Americans' Constitutional rights shouldn't disappear at the border," Wyden said in a press release announcing the legislation.

"By requiring a warrant to search Americans' devices … 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," he added.

In the same release, Paul stated that the Supreme Court has recognized that the Fourth Amendment applies in the digital domain.

"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," Paul said.

On March 27, the Knight First Amendment Institute at Columbia University filed a lawsuit against the Department of Homeland Security under the Freedom of Information Act seeking detailed records of searches and detentions as well as policy documents on how searched data is handled and anti-discrimination policies.

The CBP did not respond to FCW's request for comment on the legislation before the time of publication.

About the Author

Sean Carberry is an FCW staff writer covering defense, cybersecurity and intelligence. Prior to joining FCW, he was Kabul Correspondent for NPR, and also served as an international producer for NPR covering the war in Libya and the Arab Spring. He has reported from more than two-dozen countries including Iraq, Yemen, DRC, and South Sudan. In addition to numerous public radio programs, he has reported for Reuters, PBS NewsHour, The Diplomat, and The Atlantic.

Carberry earned a Master of Public Administration from the Harvard Kennedy School, and has a B.A. in Urban Studies from Lehigh University.


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