Privacy SOS

Bipartisan legislation aims to protect digital privacy at the border

Yesterday, Senators Wyden (D-OR) and Paul (R-KY) and Representatives Polis (D-CO), Farenthold (R-TX), Smith (D-WA), and Beyer (D-VA) introduced legislation to protect digital privacy from the prying eyes of DHS employees at US borders. The legislation would require warrants for searches of US citizens’ and permanent residents’ phones, tablets, and computers at US borders, restoring constitutional limitations to border searches that since 9/11 have become more invasive and common. Civil liberties groups including the ACLU have long criticized warrantless device searches at the border as a runaround to duck the Fourth Amendment’s requirements.

In March, NBC reported that DHS officials have stepped up their use of warrantless device searches at the border, conducting approximately 5,000 in 2015 and 25,000 in 2016. In the first full month of President Trump’s tenure, February 2017, DHS conducted 5,000 searches—the same number in one month that were conducted in the year 2015.  

Today, in a hearing before the Senate Homeland Security and Governmental Affairs Committee, DHS Secretary John Kelly gave confusing and sometimes inaccurate testimony about the issue. Senator Rand Paul, a sponsor of the bipartisan legislation to require warrants for device searches at the border, asked if Kelly thought it appropriate to deny Paul entry to the country if he refused a warrantless search of his device at the airport. Kelly replied: “Under very, very, very critical circumstances I would say that an American citizen oughta be able to come back in and not have their electronics searched.”

In response to a question from Senator Paul about the sharp increase in the number of warrantless device searches at the border, Kelly claimed that “it certainly hasn’t increased significantly in the 90 days I’ve been in the job, and the 90 days Mr. Trump has been the president.” He then went on to deny that legal permanent residents and citizens have been threatened by DHS agents who’ve told them they will not be able to enter the country unless they consent to a device search, despite widespread media reports of coercion, violence, and threats to force compliance with warrantless searches. “Generally speaking,” Kelly said, “it’s done for a reason.” Kelly claimed that these searches are “not happening routinely,” despite the fact that his own department told NBC News there were 5,000 such searches in February alone, which works out to approximately 167 warrantless device searches per day, and puts DHS on track to execute nearly 50% more of these searches in 2017 than were conducted in 2016.

You can watch Senator Rand Paul grill Secretary Kelly below.

Tell your Senators and Representative that you want to see this bipartisan legislation pass. Our rights shouldn’t end at the border.

© 2017 ACLU of Massachusetts.