Legislators Introduce Bills to Protect Digital Privacy Rights at US Borders

Two bills have been filed in Congress to stop warrantless searches and seizures of electronic devices, such as computers, phones, and tablets, as well as online accounts at American borders. In the United States Senate, Democratic Senator Ron Wyden of Oregon and Republican Senator Rand Paul of Kentucky are jointly introducing a bill called the “Protecting Data at the Border Act”. A companion bill has been introduced in the United States House of Representatives by Democratic Representative Jared Polis of Colorado and Republican Representative Blake Farenthold of Texas.

Presently, the government has been given broad authorities to detain, search, and seize people and their possessions at certain border crossings and airports. Privacy activists and civil libertarians have long argued that these searches and seizures at the border are unconstitutional because they violate the Fourth Amendment to the United States Constitution. The proposed version of the Protecting Data at the Border Act in the Senate declares that “United States persons have a reasonable expectation of privacy in the digital contents of their electronic equipment, the digital contents of their online accounts, and the nature of their online presence.”

The bill also refers to a Supreme Court opinion from 2014, in the case of Riley v. California. In that case, the Supreme Court unanimously ruled against warrantless searches of cell phones. Warrantless searches that violate digital privacy rights are declared to be a violation of the Fourth Amendment under the bill. “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 unreasonable under the Fourth Amendment to the Constitution of the United States,” the bill states.

The bill makes clear that it does not apply to external examination of devices to make sure it has no weapons or contraband concealed on it. The proposed bill would not prohibit agents from trying to power on a device that appears to be an electronic device, for the purposes of verifying it is an electronic device. Nothing in the bill is meant to limit the powers granted to government agents under the Foreign Intelligence Surveillance Act (FISA). A valid warrant supported by probable cause would be required to search Americans’ electronic devices and online accounts if the bill were enacted. Americans could not be denied entry into, or departure from, the United States for refusal to disclose a password, refusal to allow a search of an electronic device, or refusal to provide passwords, access to, or information about an online account, such as a social media account or e-mail account, under the bill. American travelers could not be held for more than four hours to determine if they will voluntarily provide access to a device or online account.

An emergency exemption is included in the bill, which allows a government agent designated by the Secretary of the Department of Homeland Security to conduct warrantless searches and seizures of the digital content of Americans devices at the border, under certain “emergency situations” outlined in the bill. Another exemption allows emergency services to access devices, such as medical, fire, and public safety services. The bill would also provide protection at places far away from the actual physical border of the United States. United States Customs and Border Protection, a branch of the Department of Homeland Security, has been given the authority to operate within 100 miles of the actual border.

Earlier this year, an American-born engineer from NASA’s Jet Propulsion Laboratory was detained and had his NASA-issued cell phone and access PIN searched and seized by Customs and Border Protection. The NASA engineer is not alone, Customs and Border Protection have been asking other Americans, including many muslim-Americans, for their passwords and PINs to their devices and social media accounts. While the Protecting Data at the Border Act may be a step in the right direction for protecting Americans privacy at the borders, foreigners will not receive any protections under the bill.