Bipartisan legislation introduced Tuesday would require law enforcement to obtain warrants before searching the digital devices of Americans at the border.
The legislation, known as the “Protecting Data at the Border Act,” was introduced in the Senate by Sen. Rand Paul (R-Ky.) and Sen. Ron Wyden (D-Ore.) while another version was presented in the House.
“Americans’ Constitutional rights shouldn’t disappear at the border,” Wyden said. “By requiring a warrant to search Americans’ devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data.”
Citing the 2004 Supreme Court case Riley v. California, which ruled that a warrant should be obtained to search an electronic device after an arrest, the legislation argues that exemptions should not be made for cell phones and the like.
“As the Supreme Court unanimously recognized in 2014, innovation does not render the Fourth Amendment obsolete,” Paul said. “It still stands today as a shield between the American people and a government all too eager to invade their digital lives.”
“Americans should not be asked to surrender their rights or privacy at the border, and our bill will put an end to the government’s intrusive practices.”
The legislation also aims to protect Americans by requiring they be made aware of their rights by law enforcement prior to requests for important information such as device PINs and passwords.
Currently, as noted by the Electronic Frontier Foundation, neither a warrant or individualized suspicion of wrongdoing is needed for “routine” searches.
“Border agents argue that the border search exception applies to digital searches…” the EFF writes. “Given that digital devices like smartphones and laptops contain highly personal information and provide access to even more private information stored in the cloud, the border search exception should not apply.”
Analysis of Department of Homeland Security data by NBC News last month found that border agents searched as many as 25,000 cell phones in 2016 – a substantial growth from 5,000 in 2015.
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