Wyden, Paul Bill Requires Warrants to Search Americans' Digital Devices at the Border

Statement

Sen. Ron Wyden, D-Ore., and Sen. Rand Paul, R-Ky., today introduced the Protecting Data at the Border Act to stop the government from forcing Americans to face indiscriminate and suspicionless searches of their phones, laptops and other digital devices just to cross the border. Sen. Edward Markey, D-Mass., and Sen. Jeff Merkley, D-Ore., are lead co-sponsors and Rep. Ted Lieu, D-Calif., is introducing the House companion bill.

The bipartisan bill prevents law enforcement agencies from continuing to take advantage of the so-called border search "exception" in order to conduct warrantless searches of Americans' phones and laptops. These searches have quadrupled in recent years, and have been used to target journalists and activists who were not suspected of crimes. Moreover, such searches are extraordinarily invasive, as modern devices store all manner of highly personal information including pictures, videos, texts, emails, location data, Internet search histories, calendars and other data.

"The border is quickly becoming a rights-free zone for Americans who travel. The government shouldn't be able to review your whole digital life simply because you went on vacation, or had to travel for work. Senator Paul and I are introducing this bill to start taking back Americans' Constitutional protections," Sen. Wyden said. "It's not rocket science: Require a warrant to search Americans' electronic devices, so border agents can focus on the real security threats, not regular Americans."

"The Fourth Amendment is more important than ever in the digital age, and as the Supreme Court recognized in 2014, smart phones and digital devices are shielded from unreasonable searches. Respecting civil liberties and our Constitution actually strengthens our national security, and Americans should not be forced to surrender their rights or privacy at the border. Our bill will put an end to these intrusive government searches and uphold the fundamental protections of the Fourth Amendment," Sen. Paul said.

BACKGROUND

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the "border search exception" to the Fourth Amendment's requirement for probable cause or a warrant. Until 2014, the government claimed it did not need a warrant to search a device if a person had been arrested. In a landmark unanimous decision, the Supreme Court (in Riley v. California) ruled that digital data is different and that law enforcement needed a warrant to search an electronic device when a person has been arrested.

This bill recognizes the principles from that decision extend to searches of digital devices at the border. In addition, this bill requires that U.S. persons know their rights before they consent to giving up online account information (like social media account names or passwords) or before they consent to give law enforcement access to their devices.

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