Congress Should Pass the Protecting Data at the Border Act

Under the bipartisan Protecting Data at the Border Act, border officers would be required to get a warrant before searching a traveler’s electronic device. Last month, the bill was re-introduced into the U.S. Senate by Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.). It is co-sponsored by Sen. Ed Markey (D-Mass.) and Sen. Jeff Merkley (D-Ore.), and the House companion bill is co-sponsored by Rep. Ted Lieu (D-Cal.).

 The rights guaranteed by the U.S. constitution don’t fade away at the border. And yet the Department of Homeland Security (DHS) asserts the power to freely search the electronic devices of travelers before allowing them entrance into, or exit from, the United States. This practice will end if Congress passes the Protecting Data at the Border Act.

Think about all of the things your cell phone or laptop computer could tell a stranger about you. Modern electronic devices could reveal your romantic and familial connections, daily routines, and financial standings. Ordinarily, law enforcement cannot obtain this sensitive information absent a signed warrant from a judge based on probable cause. But DHS claims they need no suspicion at all to search and seize this information at the border.

The bill does much more to protect digital liberty at the border. It would protect free speech by preventing federal agents from requiring a person to reveal their social media handles, usernames, or passwords. No one crossing the U.S. border should fear that a tweet critical of ICE or CBP will complicate their travel plans.

The bill also blocks agents from denying entry or exit from the United States to any U.S. person who refuses to disclose digital account information, the contents of social media accounts, or provide access to electronic equipment. Further, the bill would prevent border agencies from holding any lawful U.S. persons for over four hours in pursuit of consensual access to online accounts or the information on electronic equipment. It would also prevent the retention of traveler’s private information absent probable cause—a protection that is increasingly important after CBP admitted this week that photographs of almost 100,000 travelers’ faces and license plates were stolen from a federal subcontractor. Can we really trust this agency to securely retain our text messages and phone camera rolls? 

The bill has teeth. It forbids the use of any materials gathered in violation of the Act from being used as evidence in court, including any immigration hearings.

More than ever before, our devices hold all sorts of personal and sensitive information about us, and this bill would be an important step forward in recognizing and protecting us and our devices. Congress should pass the Protecting Data at the Border Bill.

To learn more, check out EFF’s pages on how you can protect your privacy when you travel, on our lawsuit challenging border searches of traveler’s devices without a warrant, and our support for the original version of this bill.