Chances Unclear for Bill Requiring Warrants for Cellphone Access at US Borders
U.S. border agents are increasingly asking travelers to provide access to phones and other electronic devices, which Homeland Security Secretary John Kelly said happens only in critical circumstances and most searched are foreign visitors (see 1703170019). Sen. Rand Paul, R-Ky., responded during a Homeland Security Committee hearing Wednesday that he was troubled that some American citizens and mainly permanent residents are being told they can't enter the country unless they give access to their phones. New legislation aims to address the issue but some experts told us they are unclear about its chances.
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“I could travel abroad and be told I cannot enter America unless I let you look at my phone. That’s obscene," said Paul, who's co-sponsoring legislation requiring law enforcement to get a warrant based on probable cause to search electronic devices of U.S. citizens and green card holders (see 1704040081). He called it "an extraordinarily unreasonable standard." Kelly said he wasn't aware that green card holders were being denied entry if they don't provide device access and would look into that, and the practice is done under "very, very, very critical circumstances.”
Rand's Protecting Data at the Border Act, also sponsored by Sen. Ron Wyden, D-Ore., and Reps. Blake Farenthold, R-Texas, and Jared Polis, D-Colo., would require law enforcement to get a warrant based on probable cause before they could search a U.S. person's device. It would bar border agents from delaying or denying entry if a U.S. person refuses to hand over social media account passwords or other information. A Wyden spokesman emailed there has been a lot of interest within both parties and expected more co-sponsors soon, but a Farenthold spokeswoman said it's too early to tell how much support the bill has.
Experts were pessimistic or unclear about the bill's chances in Congress. Niskanen Center immigration counsel Kristie De Peña emailed that she didn't think the legislation would pass, citing in part pushback by the Trump administration and agencies. She said the bill is also a "departure" from well-established principles of border searches. Unless they have diplomatic status, all travelers to the U.S., including American citizens, are subject to having their bags, including electronic equipment, or a car routinely searched by customs, she said. Those searches generally don't require a suspicion of wrongdoing to be justified, with few exceptions, like an intrusive body search, she said.
De Peña said the legislation relies on Riley v. California, a "pretty big overreach, and the authors of the bill know it." She said they cite the principles of the Supreme Court's 2014 decision in their bill summary rather than the decision itself because it's "barely on point," she said. Under Riley, without a warrant, police generally can't search a cellphone of someone arrested. She said that has more to do with Fourth Amendment exceptions, "including warrantless searches incidental to arrest, than the devices per se. Nowhere in the opinion does it mention borders, immigrants, or customs.”
Riley doesn't strictly apply if a person is detained at the border since there's no arrest, said Center for Democracy & Technology Senior Counsel Greg Nojeim in an interview. "The bill says we’re going to adopt the Riley rule for that border detention when it involves an American." With the bill, Congress can fill a gap at the border where courts have ruled that the Fourth Amendment doesn't prevent certain searches, he said, likening it to the Email Privacy Act, which updates 30-year-old law, allowing law enforcement to get access to people's emails that are more than 180 days old (see 1702070011).
“There's no justification for targeting Americans or foreigners for these intrusive searches when there is not reasonable suspicion," said Nojeim: The bill's chances are "hard to say." People are "increasingly troubled" by the searches, which are increasing, he said. Committee Chairman Ron Johnson, R-Wis., said nearly 24,000 devices were searched in FY 2016 -- up from 8,500 in the prior year. Three weeks ago, NBC News reported that DHS said 5,000 devices were searched in February.
Of the roughly million people who come to the U.S. by land or air daily, 0.5 percent might have their devices looked at, with most of those devices owned by foreigners, said Kelly. He said it's an effective way of finding pedophiles and terrorists. "This is not routine. It’s done in a very small number of cases. It won’t be done routinely for people that are coming here from anywhere … but if there’s a reason to do it we will in fact do it,” he said.
Ranking member Claire McCaskill, D-Mo., said if terrorists are tipped off that their cellphones would be searched, they’ll bring in clean phones. Those searches, she said, signal "something very un-American" for legitimate tourists coming into the U.S., including those from Europe and other allies. Kelly replied that very few of those phones that are searched go to forensic lab.