Foreigners visiting the United States may be asked to open up their phones and other electronic devices to Customs and Border Protection agents without the need for a warrant, under the expanded border security rules recently announced by the Trump administration.
Congress, however, is looking to ensure that U.S. citizens are not included in the warrantless searches, with lawmakers proposing a bill that will require border agents to have a warrant before they search through the phones of legal citizens.
Warrantless Searches At The Border Currently Legal
At the ports of entry in borders of the United States, the Fourth Amendment of the U.S. Constitution that grants the right to be free from unreasonable search and seizure does not apply. Border agents are free to search through the phones and other electronic devices of people, whether they are going into or heading out of the United States. People can also be forced to unlock their phones to allow the border agents to scroll through the social media account of the person.
It should be noted that, while warrantless searches are relatively uncommon, the number of cases where the invasive practice has been used is increasing. In 2015, the Department of Homeland Security said that less than 5,000 mobile phones were searched without a warrant, but last year, that number surged to 25,000. For February alone of this year, it was reported that 5,000 electronic devices belonging to both Americans and foreigners were searched at a border without a warrant.
Congress Proposes Bill To Exempt Americans From Warrantless Searches
Sen. Ron Wyden, D-Ore. proposed a bill, co-sponsored by Sen. Rand Paul, R-Ky. and introduced in the House by Rep. Jared Polis, D-Colo., and Rep. Blake Farenthold, R-Texas, that seeks to end warrantless searches from being carried out on Americans.
"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," Rep. Polis said.
It is not clear whether the proposed law would also apply to foreigners who are filing an application for a visa or an entry permit into the United States before they reach the border. The new security rules launched by the Trump administration require visa applicants to also open up their phones and electronic devices while applying, with officials allowed to ask applicants for their passwords to their social media accounts.
An anonymous senior official of the Department of Homeland Security told The Wall Street Journal that the goal of the move is to know who the applicant is in communication with, claiming that the information that can be acquired from the phone of applicants could be invaluable.
The proposed bill to end warrantless border searches for Americans is receiving widespread support from supporters of data privacy, with Sophia Cope, a staff attorney for the Electronic Frontier Foundation, describing the bill as "timely legislation that would rein in Customs and Border Protection."
However, the bill is already in danger, as it is doubtful that other members of Congress will vote to adopt the legislation. John Kelly, the secretary of the Department of Homeland Security, did not even respond to requests by Wyden to answer certain questions regarding the searches carried out by border agents.
