New Bill Requires Warrants for Border Device Searches of U.S. Persons, Sets 4-Hour Limit on Consent Delays

This proposed legislation, the "Protecting Data at the Border Act," aims to significantly change how government officials handle your electronic devices—like phones and laptops—when you're entering or leaving the U.S. Citing the Supreme Court's recognition of digital privacy in Riley v. California, the bill states U.S. citizens have a reasonable expectation of privacy for their digital lives, distinct from physical luggage. The core idea? Generally, officials would need a warrant based on probable cause to search the digital contents of a U.S. person's device at the border.

Your Digital Life Gets Stronger Borders

So, what does this mean practically? Under Section 4, if you're a U.S. person (as defined under the Foreign Intelligence Surveillance Act), an officer couldn't just demand to scroll through your photos, emails, or social media apps without getting a warrant first, similar to procedures outlined in the Federal Rules of Criminal Procedure. Think of it like needing a warrant to search your house, but applied to your phone's contents at the border. Importantly, the bill explicitly prohibits denying you entry or exit, or delaying you for more than 4 hours, just because you refuse to provide access to your device's contents or online account info without a warrant.

If an officer does want your consent to search, Section 4 mandates they give you written notice first. This notice has to clearly state they cannot compel access without a warrant, deny your travel, or hold you up longer than four hours while deciding if you'll consent. If you do consent, it must be in writing, confirming you understand your rights. Furthermore, Section 6 limits when they can actually seize your device: only if there's probable cause you've committed a felony and the device contains related information.

Exceptions and Accountability Measures

Now, it's not an absolute shield. Section 4 allows warrantless searches in specific emergency situations: immediate danger of death or serious injury, national security threats, or combating organized crime. However, even in these cases, officers must apply for a warrant within 7 days after the search. If the warrant is denied, any data copied must be destroyed. There's also an allowance for accessing devices to provide emergency services (like medical help), provided it's not part of a criminal probe.

To keep things transparent, Section 7 requires the Department of Homeland Security to report annually to Congress (and publicly online) on how often they access digital data at the border. This report must break down instances by reason (warrant, emergency, consent), the individual's status (U.S. person or not), nationality, perceived race/ethnicity, and whether data was copied or shared. Section 5 adds teeth by stating that any digital content obtained unlawfully under this Act generally can't be used as evidence in court, mirroring existing evidence rules.