[W]ASHINGTON — Legislation introduced in Congress this week would put restrictions on when United States border patrol can look through travelers’ electronic devices.
Under current law, border agents have broad authority to inspect the contents of travelers’ phones and computers as they enter the country, and searches appear to be increasing in frequency, according to Department of Homeland Security data.
Sens. Patrick Leahy, D-Vt., and Steve Daines, R-Mont., introduced a bill Tuesday that would require officers to have reasonable suspicion or probable cause to look through Americans’ electronic devices at the border. Warrants would be required in some cases, for forensic searches and within 48 hours of seizing a phone. The law also would apply to permanent American residents.
Under the measure, the government also would be required to produce an annual report on the number of searches and seizures, as well as statistics on travelers whose devices were searched.
In a statement, Leahy said the bill is a “vital step” toward protecting constitutional rights, without hindering border enforcement.
“Americans do not lose their Fourth Amendment rights at our borders,” Daines said.
The bill is seen by some civil liberties advocates as an improvement over the current system, but they said the proposal does not go far enough. They would like to see a warrant required for any search of devices.
A spokesperson for Customs and Border Protection would not comment on the proposed legislation, citing agency policy.
The agency searched a total of 30,200 devices belonging to travelers entering or leaving the country in fiscal year 2017, according to the Department of Homeland Security.
CBP searched devices of 29,200 people as they were entering the United States, approximately 0.007 percent of the roughly 397 million people who entered the country that year.
However, the number of searches increased by 64 percent over the previous year when CBP searched devices of more than 18,400 people — 0.005 percent of 390 million international travelers.
Travelers entering the United States through ports of entry along Vermont’s northern border have reported being detained while officials perused their devices, deleted content, or required them to delete photos.
Ghassan and Nadia Alasaad, the lead plaintiffs in a lawsuit brought by the American Civil Liberties Union and the Electronic Frontier Foundation, say border agents at the Highgate Springs port of entry on Interstate 89 demanded that they turn over their unlocked phones when they were returning home from Canada last July.
They were detained for six hours at the border, according to the suit. When their phones were returned two weeks later, some videos of their daughter’s graduation were deleted.
Journalist Terry Allen, a freelance contributor to VTDigger, had a similar experience at the same port of entry last year.
Allen was asked to delete photos that she had taken with her camera at the border. During the exchange, an officer asked her to hand over her phone for inspection, which she refused, and the issue was dropped.
CBP issued a new policy for searching travelers’ devices in early January, but they have come under fire, by Leahy as well as others, for not sufficiently protecting Americans’ constitutional rights.
At a congressional hearing in January, Leahy pressed Secretary of Homeland Security Kirstjen Nielsen about the protections in place. He asked theoretically about what an officer could ask of him, if he were coming back into the United States from Canada.
“I pull up there and they say we want your laptop and your phone and your passcode, and I say well do you have any reason. They say, we don’t need one,” Leahy said. “Is that correct? They can do that?”
Nielsen confirmed that is true.
“They can search the data that is apparent on the phone,” she said. She said CBP cannot use someone’s device to access information stored remotely, such as on the cloud. Generally, they will ask people to disconnect their phone.
As the exchange continued, Leahy asked her to confirm that agents do not need probable cause to look through someone’s phone.
Nielsen contended that officers need some reason for a search, and emphasized that “we’re talking about 0.01 percent” of travelers.
“I don’t care what it is,” Leahy said. “Welcome to America.”
Esha Bhandari, an ACLU staff attorney who is leading the Alasaad’s case, said the proposal in the bill to establish a standard of probable cause for officers to search travelers’ phones is a “welcome improvement.”
However, she said, the ACLU believes all searches should require a warrant.
Bhandari said it is “troubling” that the number of device searches is increasing. She also said there is no data on who is being stopped for searches, which could allow for profiling based on race, religion or other factors.
“There’s a real concern that people are being singled out for such searches,” she said.
Sophia Cope, a staff attorney at Electronic Frontier Foundation, who also works on the Alasaad case, said there are more privacy concerns with phones and other electronics because they contain more personal information on them than an item like a wallet or purse.
“The data on the devices, the privacy interests are so significant,” she said.
Cope also said the group regards the Leahy-Daines proposal as “an improvement over the status quo,” but she said they would prefer a bill offered by another bipartisan pair of senators that would require a warrant for all electronic device searches.
David Carle, a spokesperson for Leahy, said the proposal the senator put forward “represents a substantial step” toward protecting Americans’ privacy.
Leahy also “believes this standard is more workable and achievable in this Congress,” Carle said.
Asked why the bill does not require the same standards for searching phones of people who are not American citizens, Carle said that there is “a clear constitutional gap” between CBP practices and constitutional protections for American citizens, but that is “less clear” for non-citizens.