A group of senators have raised concerns about the broad authority of Customs and Border Protection and Immigration and Customs Enforcement officers to search travelers’ electronic devices at U.S. border crossings without a warrant or suspicion of a crime. In a letter to Homeland Security Secretary Alejandro Mayorkas, senators from both parties requested more information on the data retained from these searches and how it is being used. The senators are worried that current policies may be infringing on Americans’ Fourth Amendment rights against unreasonable searches and seizures. CBP and ICE are able to conduct these searches under different legal standards than law enforcement agencies without border search authority.
CBP has defended its practice of searching devices at the border as essential to national security, noting that searches without probable cause can only retain information related to immigration, customs, or other enforcement matters. Officers are permitted to conduct a “basic search” that includes viewing contacts, call logs, messages, photos, videos, calendar entries, and audio files without a warrant or suspicion of a crime. However, if a traveler refuses to hand over their device with the passcode, it can be seized for days. An “advanced search” requires reasonable suspicion of illegal activity or a national security concern, with approval from a supervisor, and allows for the copying of the device’s contents into the Automated Targeting System database.
Between October 2018 and March 2024, CBP conducted over 252,000 searches, a small fraction of the total number of travelers processed at U.S. ports of entry. Senators have requested information on the breakdown of these inspections over the last five years, including how many were conducted with a warrant, with consent, or due to national security concerns. They also want to know the demographics of individuals who had their devices searched, how long data is retained, and if outside agencies influence searches that would otherwise require a warrant. Additionally, they are concerned that travelers may not be fully informed of their rights during the search process and whether they can refuse consent without facing legal penalties.
Senators Ron Wyden and Rand Paul introduced legislation in 2021 that would have required border officials to obtain a warrant before searching a device, but the bill did not advance past the Senate Judiciary Committee. In 2022, Wyden criticized CBP for allowing indiscriminate searching of Americans’ private records and pressuring travelers to unlock their devices without being fully informed of their rights. He raised concerns about the accessibility of the database where device contents are stored for 15 years and can be accessed by thousands of DHS personnel. CBP maintains that it conducts electronic device searches in accordance with statutory and regulatory authorities, as well as applicable judicial precedent.
In response to the senators’ letter, DHS did not provide any comment on the matter. The lawmakers are seeking transparency and accountability from the department regarding the practices and policies governing electronic device searches at the border. The debate surrounding the balance between national security and individual privacy rights continues to be a contentious issue, with concerns raised about the potential overreach of government authorities in conducting warrantless searches. It remains to be seen whether further legislative action will be taken to address these concerns and protect travelers’ rights at U.S. borders.
