from the 4th-amendment-matters dept
With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn’t apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.
So far, courts have been hesitant to push back against the government’s assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.
So, it’s good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:
Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., on Wednesday introduced legislation that would increase digital privacy protections for U.S. residents crossing the border and limit the situations in which agents could legally seize their devices. If enacted, the Protecting Data at the Border Act would curb law enforcement’s extensive authority over electronic information at the border.
Rep. Ted Lieu, D-Calif., introduced a companion bill in the House.
The bill [PDF] would institute a warrant requirement for border device searches, which is a really weird sentence to type considering the Supreme Court of the United States of America instituted a warrant requirement for device searches five years ago. But there it is: an attempt to codify a SCOTUS decision so it’s respected by US government agencies.
It also prevents border agents from denying entry to anyone refusing to disclose passwords or unlock devices during screening. It also blocks them from detaining anyone for more than four hours in hopes of turning denials into consensual searches.
Unfortunately, there are some loopholes. And one of those is sizable. “Emergency situations” allow border agents to bypass the Constitutional niceties. One of those is an old — and super-vague — favorite:
[c]onspiratorial activities threatening the national security interest of the United States
That’s the catch-22. The law can’t pass without this exception and it’s this exception that will be abused the most. But the institution of a warrant requirement will force the government to put a little more effort into its “national security” hand-waving if it hopes to use evidence pulled from devices in court.
Also important is the institution of documentation procedures for consent searches. It won’t be enough for officers to claim detainees volunteered passwords or otherwise agreed to have their devices searched. They’ll need to have the whole thing documented and the form signed by the detainee. Every device search must be documented as well, whether or not a forensic search was performed.
It’s a good bill, national security exception notwithstanding. But it’s being lobbed into an unwelcoming political arena. President Trump is still demanding a wall and has declared a national emergency simply because he wants to discourage immigrants from coming to this country. Border security is national security, according to this administration, even when there’s little evidence showing immigrants are more likely to commit acts of terrorism, never mind regular crime. This administration and those backing it (and they are many) are more than happy to suspend the Bill of Rights at the border for as long as they’re in power. That’s the reality of the situation.
While this bill would bring border agencies into alignment with Supreme Court precedent, it’s highly unlikely this won’t be rejected by the President if it even manages to make it that far.