If Courts Won't Protect People's Phones At The Border, Congress Needs To Act Now

Privacy

from the it's-time-to-move-past-'but-the-border-tho' dept

Invasive searches of people’s phones at border crossings and international airports have become standard operating procedure for US border control agencies. The usual justifications have been made: national security and preventing contraband from crossing the border.

Those claims may have some merit, but it doesn’t explain why the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn’t. It also doesn’t explain why agencies like Customs and Border Patrol (CBP) continue to claim the program is too important to be curtailed, yet somehow not important enough to be competently supervised or quantified.

For the most part, courts have agreed with the government’s assertions that searching devices without warrants or (in many cases) articulable suspicion is just good national security work. Only one court has pushed back, requiring searches to be limited to rooting out suspected contraband, rather than just examining phone contents until agents find something to get reasonably suspicious about.

The Supreme Court said warrants are needed to search the contents of cell phones. Unfortunately, our nation’s borders have long been considered blanket warrant exceptions — an exception that extends 100 miles inland from every border and international airport. It also limited this to searches “incident to an arrest,” and in many cases, people whose devices are searched at the border are never arrested.

This ruling tends to work well away from the border, since seizures of phones without an arrest is generally considered an obvious violation of rights, which makes any subsequent searches illegal. But this phrase doesn’t do much to limit searches at the border where rights are assumed to be mostly waived, making the initial seizures lawful, paving the way for warrantless searches that may violate the Fourth Amendment, but in a place where courts have said violating the Constitution is cool and good.

And so the courts, having abdicated their checks and balances mandate, tell plaintiffs “hey, if this bothers y’all, maybe ask Congress to get it changed.” Because if Congress says it’s ok to waive all rights near the border, who are the courts to decide direct Supreme Court precedent applies to border phone searches?

Well, maybe the courts need to do a little local application because Congress can’t be arsed. A bill to restore the Fourth Amendment at the border has been submitted and denied in the past. It’s back again. Maybe this time — given the increasing distrust of law enforcement and federal border control efforts — it will get further than it has in the past.

Here’s the EFF’s summary of Ron Wyden’s “Protecting Data at the Border Act,” which (against all sanity) offers up the novel idea that the federal government should respect people’s rights.

Unfettered border searches of electronic devices pose a significant threat to personal privacy. That’s why we urge Congress to pass the Protecting Data at the Border Act, a bill recently re-introduced by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) that would create a warrant requirement for these types of searches, thereby protecting our constitutional rights at the border.

As the EFF points out, this is the third attempt to restore the Fourth Amendment in the federal government’s gray area — the large parts of the United States known unofficially as the “Constitution-Free Zone.” The bill wouldn’t go so far as to enact a warrant requirement, but it does add a bunch of protections that currently don’t exist.

Consent must be obtained in written form. No more Google Translate or pidgin Spanglish from border control officers who will take consent even if it’s expressed with upside down question marks. And it’s not all of the Fourth Amendment, but it’s more than we have now: border control officers need to have probable cause someone committed a felony before seizing their device. If they don’t have that, any post-seizure search would be a de facto rights violation.

There are also reporting requirements that mandate more transparency from border control agencies on searches and seizures of devices. And agencies are forbidden from retaining communications and data that can’t be shown to be related to criminal investigations or charges.

It’s not perfect but it’s far more than we have now. And, if enacted, would curb CBP’s thirst for warrantless searches, forbidding it from getting the boys in the boat to sail out on fishing expeditions just because. This is the third try for Wyden’s bill. Let’s hope it’s the charm.

Filed Under: 4th amendment, border, border exception, border searches, cbp, device searches, protecting data at the border act, ron wyden