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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The First Word

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  1. icon
    The Wanderer (profile), 7 Apr 2017 @ 4:52am

    Re: This bill is on the wrong track

    The trouble with this is that the existing practices have been established under court rulings made in light of the Constitution and laws as they stand.

    In other words, the courts involved have concluded that the Constitution does not prohibit the activities being undertaken which this bill would seek to prohibit.

    You would need to somehow clarify to the courts that the language in the Constitution which they have thought does not prohibit this does, in the mind of Congress, prohibit this.

    6) The Congress of the US can make no law abridging any clause in this act, whether preceding, including or following this clause.

    That would be useless. Legislation passed by the current Congress cannot limit what legislation can be passed by future Congresses; only Constitutional amendment can do that, and even such amendments cannot limit future amendments. (ISTR that this has been held in court, quite possibly by the Supreme Court.)


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