US lawmakers propose bill to stop warrantless phone searches at US border

Four US Congressmen have introduced on Tuesday a new law aimed at protecting Americans from warrantless searches of their digital devices when they cross the US border.

The Protecting Data at the Border Act is backed by Ron Wyden (D-Ore) and Rand Paul (R-Ky) in the US Senate, and Jared Polis (D-Colo) and Blake Farenthold (R-Texas) in the House of Representatives.

“Accessing the digital contents of electronic equipment, accessing the digital contents of an online account, or obtaining information regarding the nature of the online presence of a United States person entering or exiting the United States, without a lawful warrant based on probable cause, is unreasonable under the Fourth Amendment to the Constitution of the United States,” the proposed bill states.

“Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location,” Rep. Polis commented. “This bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents don’t continue to violate essential privacy safeguards.”

“Americans’ Constitutional rights shouldn’t disappear at the border,” noted Sen. Wyden. “By requiring a warrant to search Americans’ devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data.”

About the bill

The bill seeks to limit the government’s authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.

The bill would make it so that a US governmental entity:

• Can’t access the digital contents of any electronic equipment belonging to or in the possession of a US person at the border without a valid warrant supported by probable cause
• Can’t deny entry into or exit from the US by a US person based on a refusal by that person to disclose credentials that would enable access to the contents of an electronic device or online account; to provide actual access to the contents held in the same; or to provide online account information. (But they can seize the equipment).
• Can’t delay entry into or exit from the US by a US person for longer than 4 hours if the person refuses to provide any of these (and there is no valid warrant to make them).

There are emergency exceptions that would allow a governmental entity to access these devices and accounts without a warrant (danger to persons, “conspiratorial activities threatening the national security interest of the United States,” “conspiratorial activities characteristic of organized crime”) but the warrant will have to be obtained retroactively. If the warrant is denied, any copy of the digital contents in the custody of the entity shall be destroyed, and the content will not be shared with other governmental or state entities.

In addition to all this, the governmental entity will have to get the permission to access travelers’ devices and accounts in writing, and the note which they will be required to sign will include information about that entity not being able to compel access to that content without a warrant, and to deny that person entry into or exit from the US if they refuse to provide access to the devices and accounts, or information about the latter.

The situation at the moment

After hearing almost daily about travellers to the US being stopped at the border and made to hand over their smartphones and laptops for inspection without a warrant, this is a welcome bill.

Unfortunately, it would only protect US citizens and foreigners that are lawful permanent US residents (i.e. are Green Card holders). The rest of the travelers (visa holders and tourists) are still fair game for warrantless searches.

But, it’s a start, and gives hope for the future.

It also comes at a time when the Trump administration is purportedly gearing to implement “extreme vetting” for visitors to the US – even those that come from countries in the US Visa Waiver program – which will apparently include the forced disclosure of mobile phone contacts, social media passwords and financial data.