Bipartisan Senate Bill Would End Warrantless Device Searches at Border Posts

The Protecting Data at the Border Act, announced last week by Senators Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) would halt suspicionless searches of Americans’ phones, laptops and other digital devices at the country’s border. According to Sen. Wyden’s press release, the proposed change would prevent law enforcement agencies from leveraging the so-called border search exception to conduct warrantless searches of devices.

The announcement said that searches have increased in frequency in recent years, and have targeted journalists and activists not suspected of crimes. The senators said the searches are tremendously invasive due to the fact that devices store personal information including photographs, internet search histories, calendars, and other data.

The government has reportedly exercised wide authority to search and seize digital devices pursuant to the border search exception, which exempts the government from exhibiting probable cause or a warrant, as normally required by the Fourth Amendment to the U.S. Constitution. Until 2014, the federal government held the position that it did not need a warrant to search a device if a person had been arrested, the press release said.

Wyden’s announcement explained that a groundbreaking and unanimous Supreme Court decision, Riley v. California, rejected that belief, holding that law enforcement must have a warrant to search an electronic device when a person has been arrested. The press release noted that though the Supreme Court has not yet addressed the legality of border searches of devices, there is a circuit split among federal appeals courts as to what purposes digital device border searches may be conducted for.

The proposed law would “provide statutory clarity by recognizing that the principles from Riley v. California extend to searches of digital devices at the border,” the news release said. In addition, the bill would require that Americans know their rights before consenting to relinquish online information, like account login credentials, or before they give permission for law enforcement to access their devices.

Sens. Edward J. Markey (D-Mass.) and Jeff Merkley (D-Ore.) are lead co-sponsors of the Protecting Data at the Border Act and Rep. Ted Lieu, (D-Calif.) plans to introduce a companion bill in the House of Representatives, the announcement said.