In moments of optimism, I’d like to believe there is still some common ground upon which liberals and conservatives – even supporters of President Trump – can stand with firm resolve. One such patch should be ensuring privacy protections for the digital devices and sensitive personal information of all U.S. citizens when they pass through border checkpoints.
Toward that end, U.S. Sen. Ron Wyden, D-Ore., has signaled his intention to file legislation that would require customs and law enforcement agencies to acquire a warrant before compelling access to a U.S. traveler’s electronic device and also prohibit the growing practice of demanding social media identities and passwords. In a letter to John Kelly, director of homeland security, Wyden poses the following questions:
- What legal authority permits (U.S. Customs and Border Protection) to ask for or demand, as a condition of entry, that a US person disclose their social media or email account password?
- How is CBP use of a traveler’s password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?
- What legal authority permits CBP to ask for or demand, as a condition of entry, that a US person turn over their device PIN or password to gain access to encrypted data? How are such demands consistent with the Fifth Amendment?
The Electronic Frontier Foundation, which has long decried these warrantless searches, notes in a blog post the increasing urgency of pushing back against them.
Sen. Wyden’s letter comes after several recent reports that Customs and Border Protection (CBP) agents have been conducting invasive searches of the digital devices of Americans and foreign travelers alike. For example, CBP agents demand that travelers unlock or decrypt their devices, or simply disclose their device passcodes. Additionally, CBP agents access not only public social media posts by demanding handles, but also private social media and other “cloud” content via smartphone apps. The AP recently reported that border agents accessed an American citizen’s eBay and Amazon accounts via his cell phone.
In a particularly egregious example of abuse, a U.S.-born NASA scientist returning from a trip to South America was detained for hours and compelled to unlock his NASA-issued phone for an inspection without being given any reason or justification. You can read a detailed account of his ordeal here.
These fishing expeditions by border agents do nothing to increase our national security and yet create real costs for business travelers and their employers.
