Senators Question Homeland Security Secretary on Border Officers' Phone Search Authority
Washington — A group of senators is pressing Homeland Security Secretary Alejandro Mayorkas for more information on border officers' broad authority to search travelers' phones and other electronic devices without a warrant or suspicion of a crime, renewing scrutiny of whether the U.S. government is infringing on Americans' Fourth Amendment rights against unreasonable searches and seizures.
In a letter sent to Mayorkas on Thursday, top Democrats and Republicans on the Senate Homeland Security and Senate Finance committees asked the department to brief their staff within the next two weeks on what data is retained from these searches and how the U.S. government is using the data.
"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," Sens. Gary Peters of Michigan, Rand Paul of Kentucky, Ron Wyden of Oregon and Mike Crapo of Idaho wrote in the four-page letter, referring to an exception to the Fourth Amendment.
The senators highlighted the unique authority of Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) to inspect electronic devices at the country's entry points without a warrant and under different legal standards than regular law enforcement agencies. Both CBP and ICE operate under the Department of Homeland Security (DHS).
CBP justified this practice as crucial for national security in a 2018 directive that outlined the rules for these searches. The agency stated that without probable cause, they can only retain information related to immigration, customs, or other enforcement matters from the devices they search.
Under the guidelines, officers can perform a basic search of a person's electronic device without a warrant or suspicion of criminal activity. This includes looking through contacts, call logs, messages, photos, videos, calendar entries, and audio files. Individuals who refuse to provide their device passcodes can have their devices confiscated temporarily.
If there is reasonable suspicion of illegal activity or a national security threat, officers can conduct an advanced search with supervisor approval and copy the device's contents. The collected information is stored in a database called the Automated Targeting System.
Between October 2018 and March 2024, CBP conducted more than 252,000 searches, a tiny fraction of the hundreds of millions of travelers processed at U.S. ports of entry, according to the agency, which does not specify how many devices had their data uploaded to the database.
Senators have asked Mayorkas for a breakdown of the inspections from the last five years and whether any were conducted with a warrant, with consent from the traveler or pursuant to the "national security concern" exemption. They also want to know how many U.S. citizens, legal permanent residents and non-U.S. persons had their devices searched.
The letter includes a number of questions about how the data is retained, for how long, if searches are influenced by outside agencies who would otherwise be required to obtain a warrant and whether searches of the database are tracked.
The senators also noted that a document that is given to travelers to inform them of the search process "does not clearly state whether travelers have the right to refuse consent for the search without legal penalty, other than device detention."
Wyden and Paul introduced legislation in 2021 that would have required border officials to obtain a warrant before searching a device, but it never made it out of the Senate Judiciary Committee.
During 2022, Wyden strongly criticized CBP for its practice of allowing unrestricted access to Americans' private records. Following a briefing with CBP, Wyden revealed that travelers were coerced into unlocking their devices without being informed of their rights. Additionally, the contents of their phones were uploaded to a database, where it is stored for 15 years and accessible to 2,700 DHS personnel.
In response to Wyden's concerns, CBP stated that it conducts electronic device border searches in compliance with statutory and regulatory authorities, as well as relevant judicial precedents.
