Protecting Data at the Border Act: What rights do we have at the border?

The Protecting Data at the Border Act was introduced on Tuesday April 4, 2017.  This Bill intends to make it harder for Border Patrol Agents to demand United States Citizens traveling in and out of the United States to provide passwords to unlock computers, and cellphones, or to provide passwords for social media accounts, to enable search and copying of data contained within.  Customs and Border Patrol Agents are allowed to search U.S. Citizen’s digital devices such as cellphones and laptops without a warrant.  “According to a NBC report Customs and Border Protection conducted more than 23,000 electronic searches in 2016. More than a 400% increase over the previous year”, Jordan Rudner reported for the Dallas Morning News on April 5, 2017

The Fourth Amendment to the United States Constitution protects U.S. Citizens against unreasonable search and seizure by the government of places or things that a United States Citizen would have a reasonable expectation of privacy therein.  In order for the government to perform a search they must obtain a warrant by showing probable cause that the place or thing to be searched will provide information about illegal activity.

The Supreme Court ruled in 2014 that the Fourth Amendment protection of citizens against unreasonable search and seizure without a warrant also extends to cellphones. Riley v. California 134 S. Ct. 2473 (2014). Border Control Agents do not fall under this ruling. Searches of U.S. Citizens and other peoples arriving and departing the United States are considered reasonable because they are happening at the border, or at an international airport. Customs and Border Protection agents do not need reasonable suspicion of illegal activity, or a warrant before searching personal effects including computers, or other personal devices such as tablets or phones.

The Supreme Court has not yet decided the issue, but several courts have ruled on whether a reasonable suspicion of criminal activity is required to search a traveler's laptop at the border, they have decided that reasonable suspicion is not needed. E.g., United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008); 455 F.3d 990, 997 (9th Cir. 2006); United States v. McAuley, 563 F. Supp. 2d 672, 979 (W.D. Tex. 2008).

Immigration and Customs Enforcement as well as Customs and Border Protection have policies in place that deal with searching electronic devices at the border or United States entry or exit point.  Immigration and Customs Enforcement policy states that copies of data and device searches will be completed usually within thirty days. Customs and Border Protection policy states that copies of data and device searches will be kept for a “brief, reasonable” amount of time to be searched on or off site for generally no more than five days.

There are ways that you may protect your data from being searched upon entering or leaving the United States. Marcia Hoffman in an article for Electronic Frontier Foundation lists several:

1.  Carry as little data as possible

2.  Keep backup of your data elsewhere

3.  Encrypt the data on your device

4.  Store the information you need somewhere else, then download it when you reach your destination

5.  Protect the data on your devices with passwords

If you refuse to decrypt information or provide a password to an Immigration and Customs Enforcement agent or a Customs and Borders Protection agent there are probable consequences. You may be allowed to continue on. Your device may be seized and you will be allowed to continue your trip.  Or you may be detained.

 The Center for Democracy & Technology (CDT) supports the bill and believes, as the bill’s sponsors say, that our “Constitutional rights shouldn’t disappear at the border.” “A search of your cell phone or social media account is a direct look behind the curtain that covers the most intimate aspects of your life. A border stop shouldn’t be an excuse for extreme surveillance such as downloading the entire contents of your phone. This bill would ensure that the government demonstrates a good reason for searches at the border, and that a judge agrees,” said Greg Nojeim, CDT Director, Freedom, Security, and Technology Project

Electronic Frontier Foundation

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November 24, 2010 | By Marcia Hofmann

Jordan Rudner Dallas Morning News April 5, 2017

www.scribt.com/document/344171536/Protecting-Data-at-the-Border-Act