This week Sen. Wyden (D-OR) sent a letter to Department of Homeland Security (DHS) Secretary John Kelly stating that he will soon introduce legislation that would require law enforcement agencies to obtain a warrant before searching the data on digital devices at the border. We applaud Sen. Wyden for taking a stand on this important privacy issue.
Sen. Wyden said that he wants to “guarantee that the Fourth Amendment is respected at the border.”
We have been arguing for a while that the Fourth Amendment requires a warrant based on probable cause for border searches of cell phones, laptops and other mobile devices that contain gigabytes of highly personal information.
Sen. Wyden’s letter comes after several recent reports that Customs and Border Protection (CBP) agents have been conducting invasive searches of the digital devices of Americans and foreign travelers alike. For example, CBP agents demand that travelers unlock or decrypt their devices, or simply disclose their device passcodes. Additionally, CBP agents access not only public social media posts by demanding handles, but also private social media and other “cloud” content via smartphone apps. The AP recently reported that border agents accessed an American citizen’s eBay and Amazon accounts via his cell phone.
Sen. Wyden also wants to prohibit government agents from forcing travelers to disclose the login credentials to their social media and other online accounts. Secretary Kelly proposed requiring this from foreign visitors to the U.S. during a congressional hearing earlier this month.
Sen. Wyden argued that DHS/CBP policies and practices violate the privacy and civil liberties of travelers, “distract CBP from its core mission and needlessly divert agency resources away from those who truly threaten our nation,” and harm U.S. economic interests by discouraging international business travel.
Sen. Wyden also asked Secretary Kelly to respond to five excellent questions by March 20, 2017:
While we believe that the Constitution requires the highest level of legal protection for digital data at the border and we urge courts to make this clear in case law, we support Sen. Wyden’s effort to enshrine a probable cause warrant requirement in legislation. The faster we reach this unequivocal rule the better.
We also look forward to Secretary Kelly’s responses to Sen. Wyden’s questions.
In the meantime, please tell us your border search stories. You can write to us at firstname.lastname@example.org. If you want to contact us securely via email, please use PGP/GPG. Or you can call us at +1-415-436-9333.