Warrants

Incensed by Warrantless Border Searches of Americans' Tech Devices? These Senators Have the Cure.

Ron Wyden and Rand Paul team up to stop Border Patrol from snooping in your stuff without good reason.

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Journalist Seth Harp shared a troubling story of warrantless border patrol searches of Americans coming into the country in a lengthy piece at The Intercept over the weekend.

Harp was returning to Austin, Texas, from Mexico. He was singled out for "secondary screening" by Customs and Border Patrol (CBP) officials clearly trying to get more information about his work, with agents asking him about the story he was currently investigating, as well as about his reporting as a war correspondent and his discussions with his editors and colleagues. The end result was, according to Harp's telling, a pack of agents happy to wield their authority to demand unwarranted access to Harp's devices and property, as well as detailed information about his journalistic work, before they permitted him to reenter the country.

For those who have been paying attention to what has been happening on our borders since the 9/11 attacks, Harp's tale should have the ring of the familiar. For years now border agents have been demanding that Americans—including journalists—provide unfettered access to their devices and property without warrants or probable cause. Under President Barack Obama, for instance, there was a fivefold increase in warrantless border searches of tech devices. Back in 2016, Department of Homeland Security officials attempted to seize Wall Street Journal reporter Maria Abi-Habib's phone when she flew into Los Angeles International Airport.

Abi-Habib did not cooperate and was eventually released. Harp did cooperate and then watched as CBP agents pretty much accessed every single bit of data on his iPhone and laptop. This was a learning experience for Harp, but not for those who have long been warning about such unwarranted searches. The Electronic Frontier Foundation and the American Civil Liberties Union, for example, are currently suing over the practice, representing 10 U.S. citizens and one permanent resident.

Among those in Congress who have been raising alarms about this behavior are Sens. Rand Paul (R–Ky.) and Ron Wyden (D*–Ore.), two men who regularly attempt to develop bipartisan coalitions to bolster Americans' Fourth Amendment rights.

Wyden is using Harp's story to highlight a bill that he and Paul have been trying to pass that would protect people like Harp, and the rest of us, too. The Protecting Data at the Border Act would require a warrant, based on probable cause, before a government official may access an American's tech device at a border entry point and would forbid officials from denying Americans reentry to the country if they refuse to provide passwords or online account information. The legislation would also prevent border officials from holding Americans for more than four hours to try to convince them to cooperate.

Wyden first introduced this bill back in April 2017, and it went absolutely nowhere. He and Paul recently reintroduced the bill in May, along with co-sponsors Edward Markey (D–Mass.) and Jeff Merkley (D–Ore.). In the House of Representatives, Rep. Ted Lieu (D–Calif.) introduced a companion bill.

The two senators provided some choice quotes in a prepared statement to explain why the bill is so important:

 "The border is quickly becoming a rights-free zone for Americans who travel. The government shouldn't be able to review your whole digital life simply because you went on vacation, or had to travel for work. Senator Paul and I are introducing this bill to start taking back Americans' Constitutional protections," Sen. Wyden said. "It's not rocket science: Require a warrant to search Americans' electronic devices, so border agents can focus on the real security threats, not regular Americans."

"The Fourth Amendment is more important than ever in the digital age, and as the Supreme Court recognized in 2014, smart phones and digital devices are shielded from unreasonable searches. Respecting civil liberties and our Constitution actually strengthens our national security, and Americans should not be forced to surrender their rights or privacy at the border. Our bill will put an end to these intrusive government searches and uphold the fundamental protections of the Fourth Amendment," Sen. Paul said.

Read the bill's text here

* CORRECTION: This post has been updated to correct Wyden's political affiliation.

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  1. Well this seems like passing this is a no-brainer. So, any predictions on how badly it will be defeated?

  2. No president would sign that, even if it did make to his or her desk, which it won’t. SCOTUS isn’t interested in declaring anything unconstitutional, so we have three of your branches in essential agreement. Cough up those passwords, citizens.

    1. Why do you think Trump wouldn’t sign this? I’ve been told numerous times that he’s the mostest libertarian-ish-est President of our life times.

    2. “Cough up those passwords, citizens.”

      Die Gedanken sind frei, kein Man kann Sie wissen
      (thoughts are free, none can know them).

      Back up you devices before you leave home, and they can have the damned thing.

  3. I didn’t realize it was this severe. Anyone know if electronic and media searches are commonly forced on American travelers or is it limited to certain cases like the ones mentioned in the article?

    1. Does it matter?

      1. I just want to know how wide spread it is.

        1. Huh. I think what you really want to know is how likely you personally are to have your naughty search history looked over by Border Patrol. Wipe your history before going to the airport, and fer Christssake, use an incognito window from now on.

    2. It’s like the random screenings at the TSA checkpoints, any agent if he’s suspicious or bored or just decides he wants to fuck with you for some reason, can browse through your phone or laptop. Maybe you were traveling to Syria, maybe your skin’s too brown, maybe he doesn’t like the slogan on your T-shirt, maybe you’ve got a hot wife he’s hoping you got some nude pics of.

  4. This is nothing but make-work for the bullies.
    I know the Company line is to “Keep us safe from Democracy” and “Sacrifice some freedom of preserve your freedom”.
    But, how is the TSA, CPB, etc., expected to recognize something truly nefarious? Are they expecting to find a PDF named “Isis Home Addresses-Secret”? We talking about people who need a dog to find overripe bananas.

  5. I thought we are to be “secure in our persons, houses, papers, and efects” anywhere within our borders. And since the border checkpoints are within our borders, reentry into the US is where these things above MUST be respected.

    Any gummi tdweebs thinking otherwise needs to get a new job. Maybe dog catcher, or taking inventory in warehouses.

    1. “I thought we are to be “secure in our persons, houses, papers, and effects” anywhere within our borders.”

      Yeah. I bet you thought “shall not be infringed” meant “shall not be infringed”, didn’t you?

    2. I don’t think the BOR mentions borders. The US government isn’t allowed, constitutionally, to do shit to you outside the country that it can’t do inside the country. Somehow, they’ve weasled out of that (see: Bay, Guantanamo).

  6. >>>The Fourth Amendment is more important than ever in the digital age

    more important, or dead?

  7. How is this more unacceptable than the constitution free zones at airports, courthouses, federal offices, and the entire damn District of Columbia?
    We gave up our rights without a whimper after 9/11; how do you expect it to get better on its own?

    Welcome to the revolution.

    1. “We gave up our rights without a whimper after 9/11″….
      actually, quite a number of folks begged for those rights to be taken away.

      Personally, I’ve been moaning and bitching about it to anyone who will listen (or can even hear) since about 9/12.

  8. While I think the 4th Amendment clearly protects Americans against domestic search and seizure with no warrant based upon probable cause, constitutional common defense powers would seem to be at odds at the US border.

    1. When rights and government interests are in apparent conflict, rights must always be given priority. If you, in fact, loved the Constitution, this would be a no-brainer for you.

    2. Would you be willing to give up your 2A rights in the name of “constitutional common defence” powers?

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