Hey, it's another "This was happening under President Barack Obama, but now everybody's freaking out about it," story. In this case, it's been established for years now by court decisions that American citizens do not have the full protection of the Fourth Amendment within 100 miles of the country's borders. Officials have for a long time, on the basis of border security, been permitted wide latitude to search travelers without warrants, even if they're United States citizens.
President Donald Trump's ascendance and a new, stronger push to control border access has increased attention to this gap in our Fourth Amendment protections. A story about an attempt by the Department of Homeland Security to force a Wall Street Journal reporter to hand over her phone when disembarking from a flight got some attention on social media recently. But the story actually dates back to last July under President Barack Obama, and there was a fivefold increase in the number of border searches taking place in the year before Trump took office.
But Trump's intentions to scale back immigration into the United States has drawn more attention to this abandonment of our privacy protections. Immigration officials also may be pressing to require visa applicants to hand over passwords to social media accounts so that the content may be examined. While these targets are not American citizens, we should always be concerned and extremely aware that any authorities granted to snoop on foreign targets end up eventually being used on Americans. See also: Stingray devices, fusion centers, and most of what Edward Snowden revealed.
Sen. Ron Wyden (D-Ore.) has sent a letter to John Kelly, the secretary of Homeland Security, to express his concerns about Border Patrol officers attempting to get access to citizens' devices without warrants. He says he plans to introduce legislation to add some restraints to what border authorities may do:
There are well-established legal rules governing how law enforcement agencies may obtain data from social media companies and email providers. The process typically requires that the government obtain a search warrant or other court order, and then ask the service provider to turn over the user's data. If the request is overbroad, the company may seek to have the order narrowed. By requesting a traveler's credentials and then directly accessing their data, CBP would be short-circuiting the vital checks and balances that exist in our current system.
In addition to violating the privacy and civil liberties of travelers, these digital dragnet border search practices weaken our national and economic security. Indiscriminate digital searches distract CBP from its core mission and needlessly divert agency resources away from those who truly threaten our nation. Likewise, if businesses fear that their data can be seized when employees cross the border, they may reduce non-essential employee international travel, or deploy technical countermeasures, like "burner" laptops and mobile devices, which some firms already use when employees visit nations like China.
I intend to introduce legislation shortly that will guarantee that the Fourth Amendment is respected at the border by requiring law enforcement agencies to obtain a warrant before searching devices, and prohibiting the practice of forcing travelers to reveal their online account passwords.
Whether such legislation gets anywhere at all is heavily dependent on whether Senate Republicans are willing to put themselves out there to publicly vote for restraining the executive branch's surveillance authorities. We know that Republicans in the House are willing to do so. Rep. Jason Chaffetz (R-Utah) is introducing legislation to try to restrain the widespread use of cell tower simulators by law enforcement to engage in warrantless phone surveillance. And proposed legislation to force authorities to get warrants to citizens' old private emails has overwhelming bipartisan support in the House. But it hasn't been able to get through the Senate.
It's very clear that any new efforts to close any loopholes that allow law enforcement and border officials to ignore the Fourth Amendment are dependent on whether the Senate is willing to buy into it. The House—with the assistance of filibustering senators like Rand Paul and Wyden—essentially forced the Senate to accept some reform to federal surveillance authorities that the Senate Republican leadership really didn't want (though Paul actually voted against the reforms because they didn't go far enough). And this was under the Obama administration that had (after they had meddled with it to weaken it) given the reforms a thumb's up. There's been very little suggestion that the Trump administration would accept any effort to limit the authority of federal law enforcement and the Border Patrol to snoop on people's information.
There is a caucus of representatives who support improvements to citizens' rights to privacy under the Fourth Amendment. And I'll be leading a panel discussion about what they might be able to accomplish under this administration (if anything!) at the South by Southwest Interactive (SXSW) conference in March. Details here. Yes, you can expect reminders about this panel for the next few weeks every time I blog about Fourth Amendment and surveillance issues.