“A primary duty of the United States Government is to protect its citizens, but it is critical that in doing so we do not forget our obligation to protect the privacy and rights of Americans,” said Congressman Smith.  “This legislation will provide clear and commonsense legal avenues for the Department of Homeland Security to pursue those who commit crime and wish to do our country harm without infringing on the rights of American citizens.  Importantly, it will ensure that American citizens and legal residents returning to the U.S. from overseas are not subject to invasive, warrantless searches of their data. Your private information should remain just that – private.”

“The government should not have the right to access your personal electronic devices without probable cause,” Congressman Polis said. “Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location. This bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents don’t continue to violate essential privacy safeguards.”

“The Supreme Court has made clear that generally law enforcement must get a warrant before searching an electronic device.  Yet, CBP continues to seize and search thousands of travelers’ devices every year without a warrant,” said Neema Singh Guliani, ACLU Legislative Counsel. “Congress must now take action to end this unwise and unconstitutional practice by enacting this important bill.”

"The Protecting Data at the Border Act is timely legislation that would rein in Customs and Border Protection. In recent months, we have seen an alarming increase in the number of invasive device searches at the border,” said EFF Staff Attorney Sophia Cope. “The extraordinary privacy interests in our cell phones and other mobile devices are not the same as those for a suitcase. EFF supports this important bill, which would require border agents to do what we believe the Constitution requires: get a probable cause warrant."

“A search of your cell phone or social media account is a direct look behind the curtain that covers the most intimate aspects of your life. A border stop shouldn’t be an excuse for extreme surveillance such as downloading the entire contents of your phone. This bill would ensure that the government demonstrates a good reason for searches at the border, and that a judge agrees,” said Greg Nojeim, CDT Director, Freedom, Security, and Technology Project.

Background:

The Protecting Data at the Border Act was introduced in response to recent countless stories of individuals being arbitrarily stopped at the border. These reports are both worrisome and threatening to the very principles of due process – a founding principle of our democratic system of government. Originally introduced by Congressman Smith as the “Traveler’s Privacy Protection Act,” this updated legislation reflects the changing digital landscape in which Americans are regularly engaged. 

• The legislation will set strict standards on border searches for accessing not only electronic devices such as cell phones and laptops, but also to protecting the privacy of your data and information stored online.
• This legislation would not in any way hamper the safety or security of travelers. It specifically allows for the screening of devices to ensure they are not otherwise dangerous (as is current standard practice when traveling inside the U.S.) The bill includes measures to ensure the privacy of your social media accounts, online presence data, and cloud storage.
• This is not an exceptional standard – within the United States, these search protections exist under the 4th Amendment. The fact that we do not extend these constitutional protections to the border is something that, in this technological era, must be fixed immediately. 

The Protecting Data at the Border Act requires reasonable suspicion of illegal activity for Department of Homeland Security (DHS) agents to search the contents of laptop computers or other electronic devices carried by U.S. citizens or lawful residents, and it prohibits profiling travelers based on their race, ethnicity, religion, or national origin.  Additionally, the bill requires a warrant or court order to seize information uncovered during a search, and ensures that information acquired during an electronic search is protected by strict disclosure limitations. Reporting requirements also mandate that DHS provides information on its border search policies and practices to Congress and the public.