Two US Senators have proposed a bill that could stop US border agents from searching travelers' digital devices without a warrant.
Senators Ron Wyden and Rand Paul introduced the Protecting Data at the Border Act, which would require agents to produce a warrant when searching devices like laptops and phones. Currently, they are able to carry out routine searches without a warrant.
The move comes after digital privacy organization the Electronic Frontier Foundation (EFF) lost a fight against the US government’s warrantless search of digital devices at the border. The digital privacy advocate had tried to intervene in a case involving a warrantless search at O'Hare International Airport in Chicago.
Customs agents had searched Donald Wanjiku's cell phone, external hard drive and laptop when he landed at O'Hare International Airport in Chicago after a trip to the Philippines. These were 'preview' searches, which identify space allocated for existing files rather than more thorough forensic searches that comb a device for deleted files.
Agents uncovered child abuse images, including some on a removable memory card in the phone. They charged him with possession of the images.
Wanjiku asked the court to suppress the images, arguing that agents had violated his Fourth Amendment rights by searching his devices without a warrant.
The government contended that preview searches are routine, arguing that border agents can conduct them without a warrant, even if they don't suspect the subject of any wrongdoing. In any case, it added, the border agents did have good reason to suspect him based on a mixture of profiling and social media searches.
A District court had already denied Wanjiku's request and the Seventh Circuit upheld that decision in its ruling, arguing that the agents had reasonable suspicion to profile him and search his devices.
“We need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required,” it said, adding: “...these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.”
The EFF seemed to be piggybacking on Wanjiku’s case as it attempted to rein in government border searches. It had filed an amicus brief in Wanjiku's case (that's a document filed by a non-litigant with a strong interest in the matter). It argued that border agents need a warrant before searching electronic devices “because of the unprecedented and significant privacy interests travelers have in their digital data.
“We would have liked to see the Seventh Circuit go further by expressly requiring a probable cause warrant for all border searches of electronic devices,” the EFF added.
Searches of digital devices at the border are a thorny issue for privacy advocates. In April, former Mozilla CTO Andreas Gal filed a complaint after US border agents tried to make him hand over the passcodes to unlock his digital devices. He argued that he needed to speak to Apple (his current employer) to ensure that he wouldn’t be breaking any nondisclosure agreements by handing over access. Agents responded by interrogating him for hours, threatening him with prosecution and revoking his expedited Global Entry status.
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