Sen. Wyden Wants Answers From New DHS Head, Introducing Legislation To Create Warrant Requirement For Border Phone Searches

There aren’t many rights extended to anyone in the “Constitution-free zones” we like to call “borders.” You may have rights 100 miles inland, but the government’s needs and wants outweigh citizens’ and non-citizens’ rights wherever immigration officers roam. According to the Supreme Court, warrants are required for cell phone searches. But neither the Constitution nor Supreme Court rulings apply within 100 miles of the border, where the government’s needs and wants are considered more important than the protections they can avail themselves of everywhere else in the country.

Senator Ron Wyden is looking to change that. Rather than cede more ground to the rights-swallowing concept of “national security,” Wyden is looking to change the laws governing the “Constitution-free zones.”

Sen. Ron Wyden will soon introduce legislation to prevent Customs and Border Patrol agents from demanding the passwords to online accounts and mobile devices from American travelers without a warrant.

In a letter to Secretary of Homeland Security John Kelly dated Feb. 20, the Democratic senator from Oregon said border searches that take place without a warrant circumvent the right to privacy and “weaken our national and economic security.”

We’ll see how that sits with John Kelly. Kelly appears to be on board with the new administration’s “extreme vetting” immigration stance. He’s offered to take the DHS’s requests for immigrants’ social media account info to the next level — moving it from a voluntary request on visa application forms to mandatory demands for account passwords. Chances are, Kelly has about as little use for citizens’ rights as he has for non-citizens in general. The security of the nation is prized above presenting the appearance of a Constitutional republic to the outside world.

Given the current climate in the White House, the legislation will be facing a steep uphill grade. But while we wait for the security vs. privacy legislative fistfights to commence, perhaps DHS head John Kelly will help us pass the time by explaining exactly what it is that he feels gives him the right to search devices without a warrant and/or demand this country’s visitors hand over their social media account passwords. From Wyden’s letter [pdf]:

1. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password traveler?

2. How is CBP use of a traveler’s password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?

3. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to data? How are such demands consistent with the Fifth Amendment?

4. How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?

5. How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?

Then again, perhaps not. Government officials are kind of used to ignoring questions they don’t feel like answering. This will put Wyden back in a familiar position: repeatedly asking unanswered questions of agency officials at any Congressional hearing his opponents can’t keep him from attending.

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Author: Tim Cushing

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