Senators Patrick Leahy (D-VT) and Steve Daines (R-MT) introduced a new bill (S. 2462) that would better protect the privacy of travelers whose electronic devices—like cell phones and laptops—are searched and seized by border agents. While the new bill doesn’t require a probable cause warrant across the board like the Protecting Data at the Border Act (S. 823, H.R. 1899), it does have many positive provisions and would be a significant improvement over the status quo.
The Leahy-Daines bill, which currently has the long title of “A bill to place restrictions on searches and seizures of electronic devices at the border,” applies to U.S. persons, meaning U.S. citizens or lawful permanent residents. The bill places separate restrictions based on the type of search conducted: manual or forensic.
For “manual” searches of electronic devices, the bill requires that border agents—whether from U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE)—have reasonable suspicion that the traveler violated an immigrations or customs law and that the electronic device contains evidence relevant to the violation. The bill defines a manual search as an examination of an electronic device without the use of forensic software or the entry of a password. (Imagine a hands-on review of photos on a digital camera with no password on it, or a look through a phone not locked by a fingerprint scanner or passcode.) The definition also appears to include any type of search that lasts less than four hours or doesn’t include the copying or documentation of data on the device. By contrast, the bill requires border agents to obtain a probable cause warrant before conducting a “forensic” search of an electronic device.
These rules would be an improvement over CBP’s current policy, which does not require any level of suspicion for manual searches, and requires reasonable suspicion for forensic searches—unless the forensic search is prompted by a “national security concern” (which we believe is a huge loophole). ICE’s policy continues to permit suspicionless border searches of electronic devices.
The Fourth Amendment, however, requires border agents to obtain a probable cause warrant before searching electronic devices given the unprecedented and significant privacy interests travelers have in their digital data. And the Constitution’s protections don’t turn on an arbitrary distinction between manual and forensic searches. Recent updates to CBP’s policy don’t cure the constitutional problems with how either agency conducts border searches (and seizures) of electronic devices.
The Leahy-Daines bill also requires that border agents have probable cause to seize an electronic device. They would then have to obtain a warrant from a judge within 48 hours. If a warrant is not obtained within 48 hours, the device must be “immediately” returned to the traveler. We support this probable cause requirement for device seizures, and it’s what we argue in our civil case against CBP and ICE, Alasaad v. Nielsen.
Importantly, the Leahy-Daines bill includes a suppression remedy if the government violates the law. This means that any information illegally obtained from a traveler’s electronic device during a border search may not be relied upon in any legal, administrative, or legislative proceeding, including an immigration hearing or a criminal trial.
The bill also includes important reporting requirements. These include statistics on the “age, sex, country of origin, citizenship or immigration status, ethnicity, and race” of travelers who were subject to device searches and seizures, which would shed light on whether border agents are acting in a discriminatory manner. The statistics also include the number of travelers whose devices were searched or seized and were later charged with a crime, which would shed light on how effective device searches and seizures at the border are in rooting out criminals.
The border is not a Constitution-free zone. CBP searched over 30,000 devices last year and the number is rapidly increasing. We are glad to see some members of Congress turning their attention to the rampant problem of unconstitutional border searches and seizures of electronic devices—and the massive privacy invasions by the government that result.