January 05, 2018

Wyden Statement on New Border Search Guidelines

Washington, D.C. –Sen. Ron Wyden, D-Ore., today said new restrictions on searches by the U.S. Customs and Border Protection (CBP) officers of Americans’ phones, laptops and other personal devices at the border are an improvement, but still allow far too many indiscriminate searches of innocent Americans.

The new guidelines require “reasonable suspicion” for Customs agents to conduct a deep, forensic examination of Americans’ devices at the border. CBP agents will continue to be able to manually examine an individual’s device, including looking through their browsing history, photos and messages stored on the device, without reasonable suspicion. These rules were already in effect for West Coast states, under a 9^th Circuit Court of Appeals ruling, but for most border crossings agents frequently searched Americans’ devices without any suspicion of wrongdoing whatsoever. CBP’s new rules also explicitly permit CBP to attempt to bypass the encryption or brute-force a password protecting a device seized at the border without reasonable suspicion.

Wyden asked Acting Customs Commissioner Kevin McAleenan to change these practices at a Senate Finance Committee hearing on December 7, and reiterated the request in written questions following the hearing.

“I’ve said it before and I’ll say it again: Americans’ Constitutional rights shouldn’t disappear at the border. By requiring ‘reasonable suspicion’ before conducting forensic searches of Americans’ devices at the border, Customs and Border Protection is beginning to recognize what the Supreme Court has already clearly stated that ‘digital is different.’ It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause,” Wyden said.

“However, there’s more work to do here. Manually examining an individual’s private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full Constitutional rights, no matter where they are in the United States. That’s why Senator Paul and I last year introduced the Protecting Data at the Border Act, which would end the legal Bermuda Triangle at the border and require warrants for law enforcement officials to search Americans’ phones and laptops at the border.”

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