Digital Rights Don't Stop at the Border

Digital Rights Don't Stop at the Border
AP Photo/Denis Poroy, File

In early 2017, an American couple returning to the United States from Toronto was stopped for a screening at the Buffalo airport by officials from the U.S. Customs and Border Protection (CBP), the agency charged with safeguarding U.S. borders. But beyond questioning Akram Shibly and Kelly McCormick and physically inspecting their belongings, the agents also demanded that they surrender their mobile phones and passwords. At that moment, the government crossed an important line.

Digital devices can provide access to a vast amount of information that may be significantly more sensitive than officials would ever find in typical baggage. As a result, these devices should be subject to a higher level of legal protection. With CBP screening more Americans this way every year, it is time for Congress to intervene.

Under the Fourth Amendment, law enforcement needs probable cause that evidence of a crime will be found before searching and seizing personal property within the United States. However, the Supreme Court ruled in 1977 that the standards for probable cause are different at border crossings. This precedent now allows border agents to search anyone entering or leaving the United States without a warrant or even suspicion of wrongdoing.

But the Supreme Court could not have anticipated 30 years ago how invasive these searches would be in today’s digital society. CBP now uses this authority to search and confiscate consumer electronics such as laptops, cell phones, cameras, hard drives, flash drives, and DVDs. While CBP cannot deny reentry to U.S. citizens if they do not relinquish their passwords, the agency can pressure them to comply by detaining them at the airport and seizing their devices.

In 2009, CBP refined its policy for electronic searches, allowing agents immediately to conduct a cursory search of devices or keep devices for up to five days for a thorough forensic search — even if there is no probable cause. Moreover, if CBP determines there are “extenuating circumstances” — a vague criteria that give agents significant discretion — it can keep devices for even longer. Border searches already affect a significant number of people; as consumer electronics continue to become ever more portable, these searches will affect even more travelers. CBP more than doubled its searches of electronic devices from 2015 to 2016, and it is on track to search almost 30,000 devices this year.

Lawmakers need to put a stop to this practice.

Searching modern devices is more analogous to searching travelers’ homes, bank files, and health records than their suitcases. Electronic devices typically have a large quantity of information about a person’s daily life. Most cell phones come with either 16GB, 32GB, or 64GB, the smallest of which can hold roughly 64 hours of video or 10,400 photos. And because these devices also link to storage in the cloud, they can often access an additional library’s worth of information.

Moreover, digital devices typically house a wide variety of sensitive information. Consider that most mobile apps store personal data such as communications, photos, travel, and health and financial information. And these apps often do not require a password, meaning anyone with the unlocked device has access to most of the information stored on it. The invasiveness of a digital search is one reason why the Supreme Court ruled in 2014 that police must have a warrant to search electronic devices when they arrest a person.

Congress should extend these constitutional protections against unwarranted searches of digital devices to border crossings. Sen. Ron Wyden (D-OR) has proposed the Protecting Data at the Border Act to do just that. The bill would direct border agents to acquire warrants based on reasonable suspicion to conduct searches of digital devices or to compel U.S. persons to disclose passwords at borders, except during emergencies.

Much has changed in the decades since the Supreme Court interpreted the border search exception to the Fourth Amendment’s warrant requirement. Today, more than 190 million Americans carry smart phones. Congress should move quickly to ensure the law is in sync with the times.

Alan McQuinn (@AlanMcQuinn) is a research analyst at the Information Technology and Innovation Foundation, the leading U.S. science- and tech-policy think tank.

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