The controversial practice of U.S. Customs and Border Protection (CBP) agents randomly demanding that Americans turn over passwords to their mobile devices so they can be searched at the border and at ports of entry may be coming to an end.

Warrantless Searches At the Border

The current practice, in place since 2009, has been increasingly utilized by border protection agents, and not without criticism.   CBP Directive No. 3340-049 provides that “with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law.” Directive § 5.1.2 The Directive also specifically grants officers the power to confiscate and hold personal electronic devices for up to five days, with provisions for additional extension of time.  Id. at  § 5.3.1.1  The Directive also grants border protection officers  the authority, with some limitations, to retain and disseminate the information gathered from a search of a personal electronic device.  Id. at 5.4.  The directive applies both to inbound and outbound travel across the border.

Section 1 of the Directive sets forth the rationale for conducting such searches:

These searches are part of CBP’s long-standing practice and are essential to enforcing the law at the U.S. border. Searches of electronic devices help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. Finally, searches at the border are often integral to a determination of admissibility under the immigration laws.

Historical Legal Authority Supporting Border Searches

It may come as a surprise to some that the broad powers of search granted to border patrol officers is supported by longstanding U.S. Supreme Court precedent and even by the drafters of the Bill of Rights.  Routine border searches may be conducted without a search warrant, even in the absence of reasonable suspicion, because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (upholding a warrantless border search of a vehicle, including removal and disassembly of the gas tank, despite the lack of reasonable suspicion).  In 1977, the high court noted in another decision   that “ [t]he Congress which proposed the Bill of Rights, including the Fourth Amendment . . . had, some two months prior to that proposal . . . granted customs officials “full power and authority” to enter and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . .” United States v. Ramsey, 431 U.S. 606, 616 (1977)( citing Carroll v. United States, 267 U.S.132, 162 (1925)).

This broad and longstanding power bears reexamination after the Supreme Court’s recent ruling in Riley v. California, 134 S. Ct. 2473 (2014), in which the Court examined searches incident to custodial arrest,  applied to the digital contents of cell phones.  A unanimous Court concluded “that officers must generally secure a warrant before conducting such a search.” Id., at 2485.  This now begs the question of whether the border search doctrine is now limited by the Riley decision.  Four members of Congress seek to create a legislative “Yes” answer to that question.

The Proposed Legislation

On April 4^th, Senators Ron Wyden (D-Oregon) and Rand Paul (R-Kentucky) in conjunction with Representatives Jared Polis (D-Colorado) and Blake Farenthold (R-Texas) introduced the Protecting Data at the Border Act, which would require U.S. government agents to first obtain a search warrant before searching personal digital electronic devices held by a “United States Person” as defined by 50 U.S.C. 1801(i):

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3).

In particular, the bill:

• Requires law enforcement to secure a search warrant before searching a United States Person’s electronic device
• Prohibits border agents from delaying or denying a United States Person entry in to the United States if that person refuses to hand over their electronic device and password
• Requires law enforcement to show probable cause before seizing a United States Person’s electronic device
• Requires that a United States Person know their rights before they consent to giving up social media account names or passwords, or before turning over access to their devices to law enforcement
• Allows law enforcement to ignore the proposed statute in emergency situations

The bipartisan bill seeks to extend and codify the Supreme Court’s recent pronouncement in Riley.   The proposed bill would extend that principal to searches by border agents and narrow the “border search exception” to the Fourth Amendment’s protection against unreasonable searches.  That exception, citing a compelling state interest in securing U.S. borders, allows for “routine” searches, such as searching luggage and handbags.  Chief Justice Roberts in Riley noted that “[m]odern 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.”  As noted by its sponsors, the purpose of the pending bill is to legislatively set in stone that the random search of an American’s personal electronic digital device is not “routine” and should not be authorized by the ‘border search exception” to the Fourth Amendment.

Whether this proposed legislation will advance through Congress and be signed into law by President Trump is not yet clear.  Stay tuned for further developments.