U.S. Representative Jared Polis


The Hill Op-Ed: Let’s end warrantless searches at the border

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Washington, April 26, 2017 | comments

Let’s end warrantless searches at the border

By Rep. Jared Polis

What would you do if a law enforcement officer, without a warrant, requested that you turn over your mobile phone and password?

Most of us would be alarmed given that today’s average smart phone is a portal to an abundance of our private information, often linking to health records, personal contacts, private emails,  and a bank account.  The federal government should not be allowed to demand that U.S. citizens release that information without a warrant, whether it is stored on a mobile phone or not.

Nevertheless, this exact scenario happened to an American NASA engineer, an American Wall-Street Journal reporter, and a young-American couple visiting Niagara Falls, along with thousands of other American travelers. In fact, over the past two years, there has been a noticeable increase in warrantless electronic searches. U.S. Customs and Border Protection reported that it conducted over 23,000 searches of electronic devices in 2016, compared to 8,500 in 2015 and are on pace for another record setting year in 2017.

The uptick is alarming, and that is why I recently introduced bipartisan legislation, closing the loophole that allows the government to search electronic devices without a warrant at the border.

The Protecting Data at the Border Act requires law enforcement to obtain a warrant based on probable cause prior to searching or seizing a device of a U.S. citizen. Additionally, it prohibits officials from delaying or denying entry to the U.S. if a citizen declines to provide passwords and social media account information. There are some emergency exceptions, in which the government would be required to obtain a warrant after the search.

The U.S. Supreme Court agrees with the general principle behind the legislation. In the Riley v. California (U.S. 2014), Chief Justice John Roberts said: “The sum of an individual’s private life sits in the pocket or purse of almost any traveler carrying a cell phone, laptop or tablet computer.”  The Riley decision was a victory for the Fourth Amendment, requiring law enforcement to get a separate search warrant for electronic devices for someone in custody.

But as we know, currently, the protection against warrantless searches ends at the border.  At the border, the government has wide latitude to search bags and cars without a warrant, and Customs and Border Protection has been exploiting that latitude by demanding electronic devices and passwords. If a person does not comply, they risk being detained, denied entry, or losing their device. Customs and Border Protection even claim that they have the authority to download all of the information stored on the device.

It seems basic -- U.S. citizens should be allowed to re-enter without having to turn over their entire private lives or a company’s proprietary information to a border agent unless there is sufficient cause to get a warrant. It is clear that police cannot do the same to an individual walking down the street or in their home, so why are Americans giving up constitutional rights just because they travel to Canada or Chile?

The Protecting Data at the Border Act is the commonsense solution. The government should not have the right to access your personal electronic devices without probable cause. Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protects Americans from government overreach at all times and all places. This bill is long overdue. It will ensure that Customs and Border Protection agents do not continue to violate essential privacy safeguards that are the cornerstone of our constitution and country. 

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