It’s Time to Shore Up Fourth Amendment Protections at the Border

Since the Fourth Amendment passed in 1791, it has contained a “border search exception.” This exempts customs officials from its normal requirement of probable cause before they conduct “routine searches” of the person, papers or effects of someone crossing the border.

In the 1950s, federal regulations substantially extended this exception for the Customs and Border Police. There would now be a “border region” of the US, defined as being within 100 miles of the US border or of international waters around the coast, where CBP would be able to conduct “routine searches” without probable cause. The border region includes roughly two-thirds of US residents.

Searches have also substantially changed. The Constitution was not written with our current, highly digital world in mind, and in the 1790s, it wasn’t feasible for somebody to cross a border with a complete record of their life and movements in their pocket.

Up until 2014, the government asserted that it did not need a warrant to search the phones of people who had been arrested. In a landmark ruling in Riley v. California, the supreme court rejected this, and enshrined that law enforcement needs a warrant to search an electronic device even if the owner had been arrested. They reasoned that electronic devices, such as cellphones, contain such a vast amount of personal information that law enforcement must get a warrant to search them. The court wrote:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

But the Supreme Court did not address whether this general requirement also applies at the “border,” and because of that there is a circuit split about whether or not these protections actually do apply there. Academics, journalists and members of groups CBP disfavors, should not have to take elaborate precautions against CBP agents seizing devices teeming with sensitive data. Indeed, a fully originalist argument has been made that papers are categorically unseizable.

Instead of waiting on a conservative Supreme Court to rule in favor of Americans’ digital privacy, a group of bipartisan law makers, including Ron Wyden, Rand Paul, Ed Markey and Ted Lieu, have introduced legislation in both the House and Senate to clarify the law in regards to border searches of electronic devices. The Protecting Data at the Border Act would:

  • Require Border Patrol to get a warrant based on probable cause before they can conduct a search of a person’s digital devices
  • Prohibit Border Patrol agents from delaying (for more than 4 hours) or denying entry into the United States if someone refuses to hand over passwords or PINs to an electronic device
  • Require law enforcement get probable cause before seizing a device
  • Require written consent for border agents to search a digital device, or provide access or info for online accounts

We can’t wait for the Supreme Court to act. Please consider reaching out to your legislators and telling them to cosponsor the Protecting Data at the Border Act. You can call your legislators here!

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