Lawmakers introduce bill to end warrantless phone searches at border

A bipartisan group of lawmakers has introduced legislation that would require law enforcement agencies to obtain a warrant before searching the digital devices of Americans trying to reenter the United States.

The practice of U.S. Customs and Border Protection (CBP) agents asking for passwords to search the digital devices of Americans seeking entry into the United States has attracted significant media attention and raised concerns among privacy advocates in recent months. 

Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) introduced legislation on Tuesday that cites the 2004 Supreme Court case Riley v. California, in which the court ruled that law enforcement needed a warrant to search an electronic device in the case of an individual’s arrest.

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The bill, a version of which Reps. Jared Polis (D-Colo.), Blake Farenthold (R-Texas), and Adam Smith (D-Wash.) introduced in the House, states that the principles of the Supreme Court decision extend to searches of Americans’ digital devices at the border.

The legislation, called the Protecting Data at the Border Act, also states that Americans must be made aware of their rights before they agree to give up passwords, social media account names or other digital account information or to hand over their devices to law enforcement. 

“Americans’ Constitutional rights shouldn’t disappear at the border,” Wyden said in a statement. “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.” 

“As the Supreme Court unanimously recognized in 2014, innovation does not render the Fourth Amendment obsolete,” Paul said. “It still stands today as a shield between the American people and a government all too eager to invade their digital lives. 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.” 

In February, Wyden pressed Secretary of Homeland Security John Kelly on this practice, signaling his intention to introduce legislation to guarantee Fourth Amendment protections to U.S. citizens at the border. 

An NBC News investigation published in March turned up 25 instances in which U.S. citizens reported border patrol agents compelling them to turn over their phones and the passwords used to unlock them at airports and border crossings.

Overall, the count of cellphone searches by border officers reportedly spiked to nearly 25,000 last year.

The Department of Homeland Security under the Trump administration has attracted attention for considering more extreme vetting procedures at the U.S. border. 

Kelly told House lawmakers in February that individuals trying to visit the U.S. could be asked to provide their social media passwords as part of enhanced security measures.

The Wall Street Journal reported on Tuesday that the administration is considering demanding that foreigners seeking entry into to the U.S. provide their cellphone contacts, social media passwords and other personal information as part of enhanced vetting procedures. 

Privacy groups cheered the legislation requiring warrants.

“The Protecting Data at the Border Act is timely legislation that would rein in Customs and Border Protection,” said Electronic Frontier Foundation staff attorney Sophia Cope told The Hill. “In recent months, we have seen an alarming increase in the number of invasive device searches at the border.”

“The Supreme Court has made clear that generally law enforcement must get a warrant before searching an electronic device,” the American Civil Liberties Union (ACLU) said in an email. “Yet, CBP continues to seize and search thousands of travelers’ devices every year without a warrant. Congress must now take action to end this unwise and unconstitutional practice by enacting this important bill.”

Aida Chavez contributed.

This story was updated at 4:25 p.m.