A bipartisan group of lawmakers in both houses of Congress is pushing legislation that would require law enforcement to get a warrant before searching Americans’ devices as they cross the border back into the United States.
The new bills, which were introduced in the House of Representatives and the Senate both this week, are in response to an increase in warrantless searches of U.S. citizens’ devices at the border in recent years. Currently, law enforcement agents use an exception to the Fourth Amendment for border searches in order to search devices without a warrant. Rep. Ted Lieu (D-Calif.) introduced the House bill and Sen. Ron Wyden (D-Ore.) submitted the Senate version, saying that law enforcement agents should need to show probable cause and obtain a warrant in order to conduct searches of devices owned by Americans as they return to the country following international travel.
“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.” 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 introduction of the legislation comes at a time when Congress is paying more and more attention to the growing security and privacy issues associated with technology. Earlier this week, Sen. Josh Hawley (R-Mo.) introduced the Do Not Track Act, a bill that would establish a single mechanism through which people could prevent websites from tracking them as they move around the web. That measure is designed to protect people from surveillance that is largely invisible to them. The border-search bills, meanwhile, addresses surveillance that is quite obvious and more invasive.
Those bills seek to remove the Fourth Amendment exception for searches of devices at the border.
“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 unreason22 able under the Fourth Amendment to the Constitution of the United States,” the Senate bill says.
Under the proposed legislation, law enforcement agents would need a warrant to search devices in the possession of Americans coming into the country, and would not be allowed to deny entry to people who refuse to allow searches or disclose account credentials. The bills provide broad exceptions for situations that present “immediate danger of death or serious physical injury to any person”, national security threats, as well as organized crime activities. The legislation is based on a 2014 decision by the U.S. Supreme Court that law enforcement agents needed a warrant to search the devices of people who have been arrested.
Lieu, who along with Wyden has been focused on digital privacy and security issues for many years, said the legislation is necessary given the amount of sensitive information people store on their devices today.
“We must protect Americans’ privacy—whether it’s on a city sidewalk, at a border checkpoint or anywhere else in the U.S. At the border, American travelers should not be subjected to invasive searches of their electronic devices without a warrant. The Fourth Amendment guarantees this right,” Lieu said.