Come Back with a Warrant: Congress Should Pass the Protecting Data at the Border Act

We do not lose our constitutional rights at the border. The U.S. Department of Homeland Security (DHS), however, believes you do. In fiscal year 2019 alone (before the pandemic curbed international travel), U.S. Customs and Border Protection (CBP) officers conducted nearly 41,000 electronic device searches without seeking a warrant supported by probable cause of wrongdoing from a judge. Unfettered border searches of electronic devices pose a significant threat to personal privacy. That’s why we urge Congress to pass the Protecting Data at the Border Act, a bill recently re-introduced by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) that would create a warrant requirement for these types of searches, thereby protecting our constitutional rights at the border. 

CBP as well as U.S. Immigration and Customs Enforcement (ICE) have been conducting intrusive warrantless border device searches since at least 2009, when CBP and ICE first published their device search policies (CBP’s currently operative policy was published in 2018). The number of device searches at the border has been steadily increasing, affecting tens of thousands of international travelers each year. Our electronic devices contain intimate information about our personal preferences and daily routines, as well as private communications with friends and family. They contain data revealing health conditions, financial standing, and religious and political beliefs. A search that reveals this information to anyone, let alone law enforcement, is a gross violation of our privacy and free speech rights. 

EFF and the American Civil Liberties Union (ACLU)–believing that any warrantless search of electronic devices at the border violates travelers’ rights to privacy under the Fourth Amendment, and freedom of speech and press, private association, and anonymity under the First Amendment–filed suit in 2017 on behalf of 11 individuals whose devices were searched without a warrant at the border. Where the U.S. Supreme Court in Riley v. California (2014) acknowledged electronic devices contain “the sum of an individual’s private life” and thus ruled that a warrant must be obtained before searching the cell phone of an arrestee, EFF/ACLU’s suit sought to extend this warrant requirement to border searches of electronic devices. Unfortunately, our path in the courts is currently stalled. The Supreme Court this summer declined to take our case, and despite making some progress in the appellate courts, no circuit court has required a warrant for border device searches in all circumstances.

The Protecting Data at the Border Act takes the fight to Congress (Rep. Ted Lieu (D-CA) is expected to introduce the House bill). Along with requiring government officials to obtain a probable cause warrant before accessing the contents of an electronic device, the bill would also protect our digital privacy and free speech rights in the following ways: 

• Prohibiting border officers from denying entry or exit to a U.S. citizen or permanent resident if they refuse to provide a device password or unlock their device;
• Requiring border officers to notify travelers – before requesting consent to a search of their devices – that they have the right to refuse; 
• Requiring that consent to a search must be written; 
• Requiring border officers to have probable cause that a traveller committed a felony before confiscating their device;
• Forbidding border officers from keeping information obtained from a device search unless that information amounts to probable cause of a crime; 
• Requiring that evidence gathered in violation of any of the above be inadmissible in court; and 
• Requiring the government to gather and publish statistics regarding border searches of electronic devices, including how officers obtained access, 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 the traveler subject to a search. 

    EFF voiced support for the 2017 and the 2019 versions of this bill as well. Since 2017, our lives have only become more digital with our devices holding ever increasing amounts of sensitive personal information. Congress should enact the Protecting Data at the Border Act and recognize that we do not lose our constitutional rights at the border.