Sens. Ron Wyden and Rand Paul are renewing their push for the Protecting Data at the Border Act, a bill to ensure that government agents, including agents of Customs and Border Protection, obtain a warrant to search the personal data of Americans returning from abroad. The measure would send a resolute message: Americans' digital privacy is guaranteed, even at the border.
Until 2014, the federal government claimed it did not need a warrant to search a device if a person had been arrested. In Riley v. California, a landmark Supreme Court case, the Justices unanimously held that the warrantless, deep search of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment. If this principle pertains to an arrestee, how much more should it pertain to an American citizen who is merely traveling?
Yet border zones, whether points of entry to Canada or Mexico, or airports, have become legal twilight zones where the Fourth Amendment is treated as a suggestion. With ever-increasing international traffic, the potential for government misconduct grows as well.
PPSA has called attention to constitutional loopholes at the border before. In 2021, we reported that two troubling trends at the border threatened the rights of Americans. One is the rollout of facial recognition technology and other biometric surveillance by Customs and Border Patrol, which is used on citizens and non-citizens who arrive at a U.S. airport. The other – and by far the most intrusive – is the existing practice of accessing the contents of returning citizens’ cellphones, laptops, and other electronic devices.
In 2017, a NASA employee was stopped by Customs and Border Patrol agents and told he could not leave until he gave CBP agents his password to his phone, which belonged to NASA and contained sensitive and confidential information. In an ACLU petition filed to the Supreme Court in 2021 (Merchant v. Mayorkas), eleven U.S. citizens sued over having their electronic devices examined at the border without a warrant or reasonable suspicion. Unfortunately, the Court declined to hear the case.
PPSA endorses the Protecting Data at the Border Act. This bill will go a long way towards codifying and ensuring that the Fourth Amendment protects American citizens at the border. The bill will also prohibit officials from delaying or denying entry to the U.S. if a person declines to hand over devices and requires law enforcement to have probable cause to seize a device.
Bob Goodlatte, PPSA senior policy advisor and former Chairman of the House Judiciary Committee, said:
“There is no excuse for the government to suspend the Fourth Amendment at the border. While it is reasonable for border agents to protect the nation with inspections for pests, contraband, and illegal narcotics, it is an outrageous violation of the Constitution for agents to scan the contents of our digital devices, delving into the sensitive and personal aspects of our domestic lives.
“Sens. Ron Wyden and Rand Paul are stepping up to remind the government that we don’t shed our constitutional rights just because we travel.”