April 29, 2024

Wyden, Peters, Paul, and Crapo Press DHS on Use of Authority to Download Personal Device Data at Borders

Washington, D.C. – U.S. Senator Ron Wyden, D-Ore., said today that he has joined U.S. Sens. Gary Peters, D-Mich., Rand Paul R-Ky., and Mike Crapo, R-Idaho to press the Department of Homeland Security about its use of  border search authority on electronic devices, including details on what data is retained from these searches, how it is stored, and who has access.

The senators’ letter inquired about how U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) use their authority to search, download content from, and access sensitive information on individuals' phones, laptops, and other electronic devices without a warrant.  

The senators wrote, “Both CBP and ICE assert broad authority under the border search exception to the Fourth Amendment’s warrant requirement, which permits officers to conduct routine inspections and searches of all persons, including U.S. citizens, crossing the U.S. border without warrant, probable cause, or reasonable suspicion. We are concerned that the current policies and practices governing the search of electronic devices at the border constitute a departure from the intended scope and application of border search authority.” 

The senators continued, “The ability of these agencies to inspect property at the border—or at locations considered its functional equivalent—without a warrant, and under different legal standards than those applicable to law enforcement agencies without border search authority, is distinct. Specifically, we request information on how other agencies utilize CBP and ICE's border search authority to access information on individuals' electronic devices in situations where they would otherwise be required to obtain a warrant.” 

Americans who have had their devices searched, and civil rights and civil liberties organizations that have raised concerns about these searches a warrant, constitute a significantly different circumstance than the search of luggage or a vehicle at the border. Given the vast amount of information on electronic devices, there are also concerns that the government has amassed large amounts of personal data collected during these searches. The senators also requested information about the practice of other law enforcement agencies providing tips or recommendations to CBP and ICE, which have led to these warrantless searches. In October 2021, Sens. Wyden and Paul introduced the Protecting Data at the Border Act, bipartisan and bicameral legislation that would require the DHS to obtain a warrant to search Americans’  phones, laptops and other digital devices at the border.

The text of the letter is here.