Protect Data Privacy at the Border

Protect Data Privacy at the Border
AP Photo/Kiichiro Sato, File

Senators Rand Paul (R-KY) and Ron Wyden (D-OR) recently introduced a much-needed, bipartisan Senate bill to combat mobile device searches. Reps. Jared Polis (D-CO.) and Blake Farenthold (R-TX) also introduced this bill to the House. The “Protecting Data at the Border” Act is a vital step towards protecting the American people from one of the most egregious forms of government overreach.

The bipartisan, bicameral bill would shut down what Wyden calls a “legal Bermuda Triangle,” which allows the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to search people’s mobile devices at the United States border without a warrant. If passed, the bill would require law enforcement agencies to obtain a “warrant based on probable cause” before seizing the device of “a U.S. person.” It also prevents law enforcement from denying or delaying entry to the country if a person refuses to turn over PIN numbers, passwords, or social media account information.

Current device search policy applies to U.S. citizens and noncitizens alike and allows the federal government to search cell phones, tablets, and other mobile devices at border crossings without any suspicion of criminal wrongdoing. In 2009, after concerns were raised about the legality of the policy, the DHS conducted a civil liberties impact assessment, which came to the troubling conclusion that such searches are justified. The summary reads:

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.” 

In other words: Fourth Amendment need not apply.

It is abundantly clear that this policy treads all over civil liberties. As the American Civil Liberties Union points out, federal authorities are granted “broader” power near border areas. But those powers do not allow them blatantly to violate Fourth Amendment protections against unreasonable searches and seizures. 

The rules regarding when and how the government uses this policy are so vague that the watchdog group Knight First Amendment Institute has submitted a Freedom of Information lawsuit in an attempt to get DHS to release its rules. 

This policy drew some national press attention under the Obama administration when it was used against journalists who have First Amendment protections for the contents of their cell phones. In July of last year, for instance, Wall Street Journal reporter Maria Abi-Habib was detained at the airport when she returned to the U.S. after a wedding abroad. 

DHS agents grilled Abi-Habib, who has citizenship in both the U.S. and Lebanon, about her travel abroad. After an hour, officials asked to have her cell phones in order to “collect information.”

Abi-Habib invoked the First Amendment protections of her sources as rationale for not turning over her phones, telling the DHS agents that if they wanted to confiscate her phones, they would need to contact The Wall Street Journal’s lawyers. 

Sadly, the average U.S. citizen or foreign traveler, who is less versed in their rights, would likely hand over anything DHS asked for without a fight. This is why we need a bill to prevent these searches. As Electronic Frontier Foundation attorney Marcia Hoffman argues, there is a fundamental difference between the digital contents of one’s private devices and the luggage in one’s carry-on suitcase. The things we hold on our phones and tablets have very personal meaning for us. These devices often hold our most private information and conversations — information that, in the wrong hands, could constitute a serious violation.

Obama has left the door open for the Trump administration to continue to abuse this policy, much as Obama’s administration abused it in the waning years of his presidency. In 2015, the Obama DHS searched 4,764 devices; that number jumped to 23,877 the following year. Last February, alone, the Trump DHS searched a staggering 5,000 devices.

DHS head John Kelly has said that he’d like to use this policy especially against travelers from foreign nations to see what they’re saying about the U.S. Such rhetoric will have a chilling effect on the political speech of noncitizens and citizens alike. 

Thus the timeliness of this device search bill cannot be overstated. Passing this bill would be a triumph not only for civil liberties, but also a confirmation that even in uncertain times, America still values the importance of the Constitution.

Dan King is an advocate for Young Voices and a journalist residing in New York’s Adirondacks. He writes about free speech, civil liberties and LGBT issues. He can be found on Twitter @Kinger_Editor.

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