Increasing incidents involving unconstitutional searches of innocent Americans’ electronic devices in U.S. border zones have drawn fire from the nation’s civil liberties advocates. Legislation introduced by Kentucky Sen. Rand Paul would ensure that citizens’ protections against unreasonable searches survive the technology age.
The Republican lawmaker introduced the “Protecting Data at the Border Act” along with Sen. Ron Wyden (D-Ore.), with the announcement that constitutional rights “shouldn’t disappear at the border.”
Earlier this year, an explosive NBC News report revealed that the number of warrantless technology searches along the border grew exponentially under the Obama administration. Under the new White House leadership the trend is expected to continue.
From the report:
Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.
According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015. […]
Following uproar over the report, DHS officials have remained tightlipped about the extent of the border privacy intrusions, even evading questions about exactly hat border agents are looking for or gathering during the search process.
The refusal to provide additional information about the likely unconstitutional activity led Columbia University’s Knight First Amendment Institute to file a lawsuit the government to provide internal Homeland Security documents detailing DHS’s justification for the searches and exact information pertaining to the frequency of the searches. The lawsuit also asks DHS officials to explain what agents do with the information they gather from the searches, particularly in cases where they search devices belonging to individuals such as journalists who may have sensitive, but 1st Amendment-protected, information on their devices.
Paul’s legislation would simply end the searches of citizens’ technological devices based on the Supreme Court’s 2014 ruling in Riley v. California. In that case, justices determined that government entities must consider innovation when determining whether a search violates a citizen’s 4th Amendment protections against warrantless intrusion of “their persons, houses, papers, and effects.”
“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.”
While protecting against warrantless searches, Paul’s bill would allow agents to continue physical examinations of devices to make sure smugglers aren’t using dummy phones and computers to smuggle dangerous paraphernalia.
Here’s a full copy of the proposed legislation: