According to the Government, People Under Arrest Have More Rights Than Travelers at the Border

When Americans are standing on U.S. soil, we have constitutional rights. The government can’t go into your house and see what’s in your drawers or poke around in the attic. Police officers can’t take your phone and thumb through your photos without a good reason.

If you’re at the border or certain airport areas, the administration believes those protections evaporate. Without cause, government officials argue they have full authority to require Americans to unlock their phones, laptops, and other digital devices; search through our apps and files; and even copy everything on them.

Not only do they believe they have this authority in theory — these searches are happening now, and they’re becoming more common every day. The U.S. government has nearly doubled the number of searches at the border in the past year, according to new numbers released this week by Customs and Border Patrol. There are even stories of Americans being tackled when they refuse to unlock their phones at the border.

These searches are based on outdated legal interpretations created before most Americans were carrying around phones that hold nearly every detail of our lives. Looking through a person’s suitcase reveals a fraction of the information as going through his or her phone. It’s long-past time for Congress to make the law clear.

That’s why a bipartisan group of lawmakers in the Senate and House introduced the Protecting Data at the Border Act last week. Sen. Rand Paul (R-Ky.), Rep. Jared Polis (D-Colo.), Rep. Blake Farenthold (R-Texas) and I stood together to put commonsense limits on border searches of digital devices.

Our bill is simple. It says if agents want to search your digital devices at the border they need to get a warrant, just like law enforcement would need anywhere else in America. The bill includes an emergency exception to bypass the warrant requirement if time is a factor.

As things stand now, the government has taken the position that people who are under arrest on suspicion of committing a crime have far more rights than innocent Americans do at the border.

Second, it requires informed, written consent before the government may request and obtain assistance from a U.S. person to access data on a locked device or account, such as by disclosing their password or providing access. The bill also prohibits the government from delaying or denying entry to a U.S. person if he or she refuses to provide such assistance.

To put more sunshine on these practices, our bill also requires that the government create and publish statistics on the electronic border searches they conduct.

Our bill would bring the law at the border in line with the rules for searching Americans’ devices everywhere else. As things stand now, the government has taken the position that people who are under arrest on suspicion of committing a crime have far more rights than innocent Americans do at the border. A unanimous 2014 Supreme Court decision says police need a warrant to search the device of people who are under arrest, but despite that, border patrol continues to search innocent Americans without any suspicion.

So what’s standing in the way?

The government will say it needs this power to find criminals. But searching tens of thousands of people’s devices every year without cause is a tremendous waste of resources. The government should be focusing in on the real threats, not creating a digital dragnet for Americans returning to or leaving the United States.

The government says it doesn’t search that many Americans, although so far it has refused to provide data with exact numbers, which I asked for nearly two months ago. But we already know that this administration is considering extremely invasive social media searches for people entering the country. And Trump floated even more extreme ideas during the campaign.

So please, help us spread the word that Americans don’t have to give up our constitutional rights just because we’re at the border. Let’s make our voices heard!

The ACLU supports the Protecting Data at the Border Act.

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Libertarian Avenger

Rand Paul is the man. Protect the 4th Amendment.

Kim

Thank you for this insightful piece. Do you happen to know if there are any stats on when officers have looked through phones (any specific demographic targeted? any specific information they expect to find?)? Is there any information on what determines someone to be "suspicious"?

Anonymous

Any law, including the "Supreme Law of the Land", is meaningless if there is no risk of penalty for law breakers and enforcement. That is Law 101, it's the basic concept of how laws work since the beginning of civilization.

Many Anericans don't know this, but there are federal laws that already define and allow enforcement. Those border agents and their agency management could be criminally prosecuted today under existing law (Title 18 U.S. Code 241-245 or using "pattern & practice" statutes under Title 42).

Maybe the question should be: why aren't we enforcing the supreme law if the land under the federal criminal code? Why won't the DOJ prosecute their own?

Anonymous

There seems to be an ingrained culture by many constitutional officers, like police and border agents - that there is no harm in violating their own oath of office (which includes obeying the Fourth Amendment and Bill of Rights). Essentially a "No harm, no foul" attitude.

America's most respected law man, Robert Jackson, publicly said that;

"Uncontrolled, search and seizure is the first and most effective weapon in the arsenal of every arbitrary government".

In other words Jackson, who prosecuted America's worst criminals and Nazi war criminals, believed violating the Fourth Amendment was extremely harmful because it created arbitrary government actions that led to other violations. Once you all fishing expeditions, it opens the door to more abuses of power.

It might benefit police and border agents to check out the movie "The Lives of Others" that came out around 2006. It's based on events that really happened and illustrates why violating one's oath of office on the Fourth Amendment is so dangerous. It's a German film, ironically American film makers have largely ignored the harm done to American citizens by fishing expeditions and have glamorized Stasi-like tactics.

S. Boardman

Re Robert H. Jackson:

https://youtu.be/0cfuWj52jQM

Anonymous

After posting to the ACLU comment board, like clockword within minutes, local police "coincidentally" make their presence known in response to these legal First Amendment exercises. Guessing it's just a mild form of intimidation to illegally silence First Amendment exercises.

The federal criminal code (Title 18 & Title 42) makes this form of apparent intimidation a federal crime that can carry prison time.

What's so insidious about this type of illegal intimidation to silence legal rights, is it's nearly impossible to make a police report with the local internal affairs department or even the U.S. Justice Department (since some, not all, DOJ officials use the very same tactics).

The purpose of the First Amendment is designed to restrain and outlaw this type of police corruption. Maybe we just need a new watchdog to enforce it?

Anonymous

Not just phones how about the invasive body searches. I have TSA pre check and was frisked, not just patted down, at a US airport last month. There is no need for these pseudo military thinking TSA personnel to touch genitals.

TSA Massage

I get checked almost every time I go through. I think it stems from a time I got caught bring ONE stick of foreign turkey jerky and not reporting it. I was finger printed, fined 100$ and put in the system. This was the 1990's.

Now every time I get felt up I make sure they know. I say things like "...mmmmmhh, you like that...get you some...you like touching that penis....go on...touch it, give it a good massage...". I say this as loudly as courteous. Hahahahaha! It makes those TSA F'ers as uncomfortable as they're making me.

F the TSA and their penis touching monkeys.

Anonymous

I am travelling to the US on a holiday in 3 weeks time. As a UK citizen do I have any rights should I be asked to hand over my phone at border patrol?
I'd like to think I don't fit the profile of a criminal - caucasian, blonde, average joe but you never know.

Any advice would be greatly appreciated

American Citizen

Under Trump's administration, anything goes. His travel ban was enacted before anyone knew about it, and has been challenged in court only after messing with thousands of travelers. It seems that our rights are being eroded, so yours as a U.K. citizen are in as much question as ours are here, I'm sorry to say. This article woke me up to the fact that we don't seem to have the same rights at the border (airport) as we do in the rest of the country which seems very unconstitutional to me.

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