Sen. Patrick Leahy, D-Vt., is reintroducing legislation that would restrict the power of U.S. Customs and Border Protection agents to seize and search laptops and cellphones at the border.
Leahy says the practice raises constitutional and privacy concerns.
Under current law, federal agents are allowed to search electronic devices without showing probable cause at entry points to the U.S., including airports and land borders.
Searches of laptops and cellphones at the border have quadrupled since 2015, according to Leahy. Last year, CBP conducted searches of about 33,000 devices, the senator said.
Leahy’s proposal, co-sponsored by Sen. Steve Daines, R-Montana, would require federal agents at the border to show probable cause and obtain a warrant before searching devices.
In an interview Friday, Leahy said the searches are an “annoyance” to Americans. The process for conducting searches at the border should more closely match the standards met by other law enforcement officers. His legislation would bring border policies in line with the probable cause threshold, he said.
“This says for Americans you’ve got to have some kind of reasonable suspicion,” he said. “If you want to do a more significant search, then you’ve got to have probable cause and you’ve got to have a search warrant.”
Leahy said the border agents’ practice of search and seizure without cause raises concerns for citizens and journalists.
The senator recounted the story of a man who was picking up gifts from his family in the Middle East in upstate New York, when customs agents detained him, searched his car and seized his phones. The incident, which occurred in July 2018, was reported by The Intercept this week.
In June, reporter Seth Harp wrote a column in The Intercept detailing how he was detained for hours and questioned about his work by border agents at the Austin airport after he flew in from Mexico.
In 2017, journalist Terry Allen, a freelance contributor to VTDigger, was detained by CBP officers along the Canadian border at the Highgate Springs port of entry on Interstate 89.
Allen was asked to delete photos that she had taken with her camera. During the exchange, an officer asked her to hand over her phone for inspection. She refused, and the issue was dropped.
Michael McCarthy, a spokesperson for Customs and Border Protection said the agency does not comment on pending legislation, and that he could not comment on why searches of electronic devices at the border have increased in recent years.
James Duff Lyall, the executive director of the American Civil Liberties Union of Vermont, said the organization has heard from several Americans crossing into Vermont from Canada who “have had a range of issues at ports of entry, including confiscation or searches of devices.”
Lyall he supports Leahy’s bill.
“People should not have to forfeit their constitutional rights when they travel, when they encounter Customs and Border Protection,” Lyall said.
The ACLU of Massachusetts and the Electronic Frontier Foundation are suing CBP over the practice of warrantless searches. The case centers on plaintiffs who say agents detained them and searched their electronic devices at the Highgate border station in Vermont. Leahy first introduced the legislation in March of last year. In the meantime, he has been building bipartisan support for the measure.
Read the story on VTDigger here: Border searches of laptops and cellphones quadruple since 2015.