Four privacy-minded lawmakers have introduced legislation requiring law enforcement officials to obtain a warrant before searching phones belonging to US citizens, and prohibiting them from barring entry to Americans who decline to share their passwords at the border.
"Americans’ Constitutional rights shouldn’t disappear at the border," Senator Ron Wyden said in statement to BuzzFeed News. "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."
Some law enforcement agencies have asserted broad authority to conduct searches of devices at the border, the lawmakers contend, in a way that circumvents the Fourth Amendment's protections. The lawmakers argue that searching devices — even after obtaining permission to do so — is an invasion of privacy that should be tightly controlled.
The bill would require law enforcement to establish probable cause before searching or seizing a phone belonging to an American. "Manual searches," in which a border agent flips through a person's stored pictures would be covered under the proposed law as well. But the bill does allow for broad emergency exceptions.
“The government should not have the right to access your personal electronic devices without probable cause,” Rep. Polis told BuzzFeed news in a statement. “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.”
The lawmakers say that the bill extends the privacy principles clarified in the Supreme Court decision Riley v. California. In that case, the High Court ruled that warrantless searches of electronic devices during an arrest are unconstitutional.
In a letter to the Department of Homeland Security in February, Sen. Wyden asked the agency's chief, Secretary John Kelly, to reveal how many times Customs and Border Protection personnel had asked for or demanded US citizens disclose their phone, computer, email, and social media passwords in the past several years. Sen. Wyden also asked Secretary Kelly to explain what legal authority allows the CBP to demand those passwords and how such demands are consistent with the Constitution and federal law.
The Senator asked Secretary Kelly to respond by March 20. But according to Sen. Wyden's office, Homeland Security has not written back.