Bipartisan Bill Would Require A Warrant To Search Americans' Devices At The Border

from the would-be-a-start dept

As we've discussed for many years, Homeland Security and the Justice Department have convinced too many courts that there is some sort of 4th Amendment "exception" at the border, whereby Customs and Border Patrol agents (CBP) are somehow allowed to search through your laptops, phones, tablets and more just because, fuck it, they can. Now bipartisan pairs in both the Senate and the House have introduced a new bill that would require that CBP get a warrant to search the devices of Americans at the border. On the Senate side, the bill is sponsored by Senators Ron Wyden and Rand Paul, and in the House, it's Reps. Blake Farenthold and Jared Polis. Honestly, it's absolutely ridiculous that this kind of bill is even needed in the first place, because the 4th Amendment should just take care of it. But with DHS and the courts not properly appreciating the 4th Amendment's requirment for a warrant to do a search, here we are. Here's a short summary of the bill as well, that notes:

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.

Until 2014, the government claimed it did not need a warrant to search a device if a person had been arrested. In a landmark unanimous decision, the Supreme Court (in Riley v. California) ruled that digital data is different and that law enforcement needed a warrant to search an electronic device when a person has been arrested.

This bill recognizes the principles from that decision extend to searches of digital devices at the border. In addition, this bill requires that U.S. persons are aware of their rights before they consent to giving up online account information (like social media account names or passwords) or before they consent to give law enforcement access to their devices.

That last part is especially important, given how eager Homeland Security has been to start demanding social media passwords as you deplane. Unfortunately, the bill as written only applies to "US Persons" as defined here, meaning that it may not be of much help for a new DHS proposal, also revealed this week, to more aggressively pursue phone and social media searches of foreigners. This is a bad idea for a whole host of reasons we've already discussed, but the short version is that it's bad for security, it's bad for tourism, it's bad for Americans' safety (because other countries will reciprocate). It's just a bad, bad idea.

At the very least, this new bill would block this from happening for American citizens or otherwise legal aliens, but it should go much further. And, of course, who knows if this bill will get any traction, or get signed by the President.

Filed Under: 4th amendment, blake farenthold, border search, border search exception, devices, jared polis, rand paul, ron wyden


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  1. identicon
    Anonymous Coward, 5 Apr 2017 @ 6:19am

    Wrong Way!

    There should not be a new law.

    People should be getting fucking prosecuted and congress can sure as fuck do something about it by calling these agencies in and making a big deal about it, and then recommending prosecutions.

    But no... we don't want to do any actual work. Not even people IN government understand how government should work.

    And as usual, we "informed" citizens just go right along with it, thinking... yea! that will teach them!


    ---Unfortunately, the bill as written only applies to "US Persons"---

    The Constitution only applies to Citizens anyways! It does not serve our sovereignty very well if non-citizens are able to invoke protections we reserve only for ourselves. So thumbs up on the intellectual bankruptcy! While I can agree that the US should not be acting like a paranoid country, we should never entertain the idea of granting constitutional protections to anyone outside of our countrymen!

    "If tyranny ever comes to this land it will be under the guise of fighting a foreign enemy."

    ~James Madison

    Extending the constitution to cover non-citizens means that the US will have to start cutting big exceptions into the constitution to deal with enemy combatants and creating oppressive laws that can then be used on actual citizens that are called terrorists for bitching about the quality of the water supply.

    Governments using fear to convince people to liver under tyrannical laws is old hat and here we are again... repeating fucking history!

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