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Senators renew review of border agents’ power to search Americans’ phones

Washington — A group of senators is pressing Homeland Security Secretary Alejandro Mayorkas for more information on border agents’ broad authority to search travelers’ phones and other electronic devices without a warrant or suspicion of crime, renewing the examination of whether the U.S. government is encroaching 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 Finance committees asked the department to brief its staff within the next two weeks about the data retained during these searches and how the US government uses the data. data.

“We are concerned that 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,” said Senators Gary Peters of Michigan, Rand Paul of Kentucky and Ron Wyden of Oregon. and Mike Crapo of Idaho wrote in the four-page letter, referencing an exception to the Fourth Amendment.

The ability of Customs and Border Protection and Immigration and Customs Enforcement to inspect devices at the nation’s border crossings, airports and seaports “without a warrant and under legal standards different from those applicable to law enforcement agencies without border search authority, is distinct,” the senators said. Both CBP and ICE are agencies within DHS.

DHS did not respond to a request for comment.

CBP defended this long-standing practice as essential to protecting national security in a 2018 directive establishing guidelines for searches. Without probable cause to seize a person’s device and copy their data, the agency “may only retain information relating to immigration, customs and/or other enforcement matters,” it says. -he.

The guidelines allow officers to conduct a “basic search” without a warrant or suspicion that the traveler has committed a crime. These searches include manually scrolling through a person’s contacts, call logs, messages, photos, videos, calendar entries and audio files, according to a CBP analysis. But anyone who refuses to hand over their devices with access codes can have them seized for days.

If there is “reasonable suspicion of activity in violation of laws” or “a national security concern”, agents can conduct an “advanced search”, with the approval of a supervisor, and copy the content of the device, indicates the directive. The information is then stored in a database known as an automated targeting system, according to the analysis.

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 on how many devices their Data has been uploaded to the database. .

The senators asked Mayorkas for details of inspections over the past five years and whether any were conducted with a warrant, with the traveler’s consent or under the “national security concerns” exemption. They also want to know how many U.S. citizens, legal permanent residents and non-U.S. people have had their devices searched.

The letter includes a number of questions about how the data is retained, for how long, whether searches are influenced by outside agencies that would otherwise be required to obtain a warrant and whether database searches are followed.

The senators also noted that a document given to travelers to inform them of the search process “does not clearly indicate whether travelers have the right to refuse consent to the search without legal sanction, other than detention of the device “.

Wyden and Paul introduced legislation in 2021 that would have required border agents to obtain a warrant before searching a device, but it never passed the Senate Judiciary Committee.

In 2022, Wyden criticized CBP for “allowing indiscriminate searches of Americans’ private records.” After a CBP briefing, Wyden said travelers were pressured to unlock their devices without being informed of their rights and that the contents of their phones were uploaded to the database, where it is saved for 15 years and accessible to 2,700 DHS personnel.

CBP responded to Wyden that it “conducts border searches for electronic devices in accordance with statutory and regulatory authorities, as well as applicable judicial precedent.”

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