Tuesday, lawmakers in the House and Senate introduced legislation that would make it illegal for Customs and Border Patrol to search the digital devices of Americans without a warrant; it would also make it illegal for CBP to detain Americans at the border for refusing to give them your password, fingerprint, or pin code.
The legislation, called the "Protecting Data at the Border Act," comes as the Trump administration has expanded the Obama-era practice of demanding Americans unlock their phones or turn over their laptops at the border so they can be searched. The searches have been considered legal under laws that allow for the search of physical goods, such as your suitcase. The "border," meanwhile is a 100-mile wide zone that encircles the United States and encompasses many of the nation's largest cities.
The Protecting Data at the Border Act would limit that practice.
"Accessing the digital contents of electronic equipment, accessing the digital contents of an online account, or obtaining information regarding the nature of the online presence of a United States person entering or exiting the United States, without a lawful warrant based on probable cause, is unreasonable under the Fourth Amendment to the Constitution of the United States," the bill states.
The bill would also allow Americans to refuse to give up "access credentials" to border patrol agents without being punished. Passing any privacy-related legislation in today's political climate seems like a longshot, and the bill still allows for the search of electronic devices in emergency situations. It also allows for the search of devices if fingerprints, passwords, or pin codes are "consensually disclosed" in writing by the device's owner. The Department of Homeland Security would be required to keep statistics on how often such searches occurred.
The bill has been introduced in the Senate by Sens. Ron Wyden (D-Oregon) and Rand Paul (R-Kentucky), and in the House by Reps. Jared Polis (D-Colorado), Blake Farenthold (R-Texas), Adam Smith (D-Washington), and Don Beyer (D-Virginia). Earlier Tuesday, The Wall Street Journal reported that digital data searches at the border would be ramped up for visitors to the United States. The bill would do nothing to change the practice of searching the devices of foreign nationals.