The senators have sought answers from Homeland Security Secretary Alejandro Mayorkas regarding this issue, which has been in place since 2018 and has sparked debates over potential Fourth Amendment violations.
The senators, including Gary Peters (D-MI), Rand Paul (R-KY), Ron Wyden (D-OR), and Mike Crapo (R-ID), expressed their concerns in a letter. They stated, "We are concerned that the current policies and practices governing the search of electronic devices at the border constitute a departure from the intended scope and application of border search authority."
The senators further pointed out that the ability of these agencies to inspect property without a warrant, under different legal standards than those applicable to law enforcement agencies without border search authority, is distinct.
In 2018, Customs and Border Protection (CBP) defended its authority to search electronic devices without warrants, arguing that it is crucial for national security. The agency issued a directive that year outlining the guidelines for these searches. According to the directive, without probable cause to seize a device and copy its data, the agency "may retain only information relating to immigration, customs and/or other enforcement matters."
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The directive allows officers to conduct a "basic search" without a warrant or any suspicion of criminal activity. These searches can include manually scrolling through a person's contacts, call logs, messages, photos, videos, calendar entries, and audio files. However, anyone refusing to provide their devices and passcodes may have their devices seized for several days.
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In cases where there is "reasonable suspicion of activity in violation of the laws" or "a national security concern," officers can conduct an "advanced search" with a supervisor's approval and copy the device's contents. The information is then stored in a database known as the Automated Targeting System.
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Between October 2018 and March 2024, CBP conducted over 252,000 searches, a minuscule fraction of the hundreds of millions of travelers processed at U.S. ports of entry. The agency does not specify how many devices had their data uploaded to the database.
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The senators also expressed concerns about other federal agencies using the data obtained by CBP without warrants. They requested information on how other agencies utilize CBP and ICE's border search authority to access information on individuals' electronic devices in situations where they would otherwise be required to obtain a warrant.
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The senators have requested a briefing within two weeks to discuss the extent of Border Patrol's authority to conduct these searches, the number of searches conducted, whether any government agency "installed software, firmware, or hardware" on devices, and several other concerns.
This issue has not received significant media attention, but there has been considerable debate related to this practice. In 2023, a federal judge agreed that CBP's authority to conduct warrantless searches at the border is excessive.
However, a recent ruling by a federal judge stated that a free pass to probe electronic devices is too broad, and that Americans enjoy some protections at the border similar to those they have elsewhere.
In the case of United States v. Smith, Jatiek Smith, the subject of a federal investigation, was stopped at the Newark airport upon his return from Jamaica. As detailed by U.S. District Judge Jed S. Rakoff, federal agents "forced him to turn over his cellphone and its password. They reviewed the phone manually and created and saved an electronic copy of it as it existed as of that date and time – all without a search warrant."
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This development comes on the heels of Congress passing legislation reauthorizing the Foreign Intelligence Surveillance Act, which has stirred controversy over a provision allowing federal agencies to spy on American citizens without first obtaining a warrant.
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