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


Reader Comments

The First Word

Subscribe: RSS

View by: Time | Thread


  1. identicon
    My_Name_Here, 5 Apr 2017 @ 3:56am

    Re: Must be from the Bill of Rights: Special Edition

    Here, let me get that for you:

    https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/8cfr.html

    Now, if you want to read the "lies" of this whole deal, you can go here:

    http://www.foxnews.com/politics/2014/01/13/constitution-free-zones-controversial-obama-administ ration-policy.html

    The 100 mile zone is a lie often repeated, it seems. There is no "constitution free" zone, the same laws that apply to other law enforcement apply to the border agents working away from border inspection stations. The only real exception is that they can operate inspection stations are stop and question all traffic moving past that point (in a manner similar to a DUI checkpoint, also long proven constitutional!).

    They cannot randomly inspect cell phones in the 100 mile zone. That would be a lie.

    The law that they are trying to pass here likely won't pass muster as it's attempting to regulate what the courts have already ruled otherwise on: The border agents AT THE BORDER have broad search rights as a normal part of their job of inspecting people arriving into the US. There is a lot of unsettled ground as to the rights of US citizens (and legal aliens) when they present at the border but have not yet entered the US.

    It's not as simple as they are making it out to be.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.