Journalist Seth Harp shared a troubling story of warrantless border patrol searches of Americans coming into the country in a lengthy piece at The Intercept over the weekend.
Harp was returning to Austin, Texas, from Mexico. He was singled out for "secondary screening" by Customs and Border Patrol (CBP) officials clearly trying to get more information about his work, with agents asking him about the story he was currently investigating, as well as about his reporting as a war correspondent and his discussions with his editors and colleagues. The end result was, according to Harp's telling, a pack of agents happy to wield their authority to demand unwarranted access to Harp's devices and property, as well as detailed information about his journalistic work, before they permitted him to reenter the country.
For those who have been paying attention to what has been happening on our borders since the 9/11 attacks, Harp's tale should have the ring of the familiar. For years now border agents have been demanding that Americans—including journalists—provide unfettered access to their devices and property without warrants or probable cause. Under President Barack Obama, for instance, there was a fivefold increase in warrantless border searches of tech devices. Back in 2016, Department of Homeland Security officials attempted to seize Wall Street Journal reporter Maria Abi-Habib'sphone when she flew into Los Angeles International Airport.
Abi-Habib did not cooperate and was eventually released. Harp did cooperate and then watched as CBP agents pretty much accessed every single bit of data on his iPhone and laptop. This was a learning experience for Harp, but not for those who have long been warning about such unwarranted searches. The Electronic Frontier Foundation and the American Civil Liberties Union, for example, are currently suing over the practice, representing 10 U.S. citizens and one permanent resident.
However, any bill Congress considers related to border security should avoid–at minimum–invasive surveillance technologies like biometric screening and collection, DNA collection, social media snooping, unregulated drones along the border, and automatic license plate readers aimed at interior traffic.
Among those in Congress who have been raising alarms about this behavior are Sens. Rand Paul (R–Ky.) and Ron Wyden (D*–Ore.), two men who regularly attempt to develop bipartisan coalitions to bolster Americans' Fourth Amendment rights.
Wyden is using Harp's story to highlight a bill that he and Paul have been trying to pass that would protect people like Harp, and the rest of us, too. The Protecting Data at the Border Act would require a warrant, based on probable cause, before a government official may access an American's tech device at a border entry point and would forbid officials from denying Americans reentry to the country if they refuse to provide passwords or online account information. The legislation would also prevent border officials from holding Americans for more than four hours to try to convince them to cooperate.
Wyden first introduced this bill back in April 2017, and it went absolutely nowhere. He and Paul recently reintroduced the bill in May, along with co-sponsors Edward Markey (D–Mass.) and Jeff Merkley (D–Ore.). In the House of Representatives, Rep. Ted Lieu (D–Calif.) introduced a companion bill.
The two senators provided some choice quotes in a prepared statement to explain why the bill is so important:
"The border is quickly becoming a rights-free zone for Americans who travel. The government shouldn't be able to review your whole digital life simply because you went on vacation, or had to travel for work. Senator Paul and I are introducing this bill to start taking back Americans' Constitutional protections," Sen. Wyden said. "It's not rocket science: Require a warrant to search Americans' electronic devices, so border agents can focus on the real security threats, not regular Americans."
"The Fourth Amendment is more important than ever in the digital age, and as the Supreme Court recognized in 2014, smart phones and digital devices are shielded from unreasonable searches. Respecting civil liberties and our Constitution actually strengthens our national security, and Americans should not be forced to surrender their rights or privacy at the border. Our bill will put an end to these intrusive government searches and uphold the fundamental protections of the Fourth Amendment," Sen. Paul said.
Read the bill's text here
* CORRECTION: This post has been updated to correct Wyden's political affiliation.