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If you’re traveling outside the United States this summer you might want to rethink taking your electronics along. Government agents have been detaining American citizens without arrest, searching, and in some cases downloading the entire contents of phones, tablets, laptops, and other devices. And this all happens without a warrant or access to an attorney.
“The border has become a rights-free zone for Americans who have to travel,” Senator Ron Wyden said in a statement to TAC. “The founders never could have imagined that the government would be able to sift through your entire digital life, from pictures to emails and even where you’ve been, just because you decide to take a vacation or travel for work.”
Border searches of electronic devices have exploded at an exponential rate in recent years: in 2018, U.S. Customs and Border Protection (CBP) searched over 33,295 smartphones, laptops, and other electronic devices; up nine percent from fiscal year 2017 and over six times the number searched in 2012. And that’s just the statistics from CBP; Immigration and Customs Enforcement (ICE) does not maintain records of the number of electronic device searches it conducts.
“The government is accessing all your private data,” Sophia Cope, senior staff attorney with the Electronic Frontier Foundation (EFF), told TAC. These “deeply intrusive” searches of electronic devices “reveal a lot about you: your emails, contacts, bank history, internet searches, medical history, social media usage, and political beliefs.”
The “border is not a Constitution-free zone,” said Cope. But right now, it’s essentially functioning as one, as laws that protect Americans privacy are being run over roughshod by agents at the border.
In a unanimous decision in 2014, the Supreme Court ruled that when a person has been arrested, law enforcement need a warrant to search their electronic devices.
But government agents at the border assert that they can search anyone’s device, at any time, for any reason, or for no reason at all. CBP has largely been operating under its own rules; they say they do not need a warrant, or even probable cause, to conduct this digital invasion because of the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.
A lawsuit brought by EFF and the American Civil Liberties Union (ACLU) argues that these searches are in violation of the First and Fourth Amendments of the U.S. Constitution.
For travelers whose professions require they maintain the privacy of sensitive information, like journalists, attorneys, clergy, and doctors, the effect of these searches can be quite chilling. We have laws that preserve the privacy of patients and attorneys’ clients—even journalists are protected by shield laws in most states—but there’s no such protection when CBP seizes electronic devices…
The problem of unreasonable searches and detentions at the border could be resolved outside the court room. Bipartisan legislation introduced by Senators Ron Wyden (D-OR) and Rand Paul (R-KY.) would require law enforcement to have probable cause and a warrant before they search a device.
Their bill also prohibits officials from delaying or denying entry to the United States if a person declines to hand over passwords, PINs, and social media account information.
“Our bill will put an end to these intrusive government searches and uphold the fundamental protections of the Fourth Amendment,” Paul said in a statement.
“Americans should not be forced to surrender their rights or privacy at the border”.
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