U.S. Senator Gary Peters (MI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, is pressing the Department of Homeland Security (DHS) for information regarding its use of border search authority on electronic devices, including details on what data is retained from these searches, how it is stored, and who has access.
The senators’ letter seeks to understand how U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) utilize their authority to search, download content from, and access sensitive information on individuals’ phones, laptops, and other electronic devices without a warrant. Senators Rand Paul (R-KY), Ron Wyden (D-OR) and Mike Crapo (R-ID) also signed onto the letter.
“Both CBP and ICE assert broad authority under the border search exception to the Fourth Amendment’s warrant requirement, which permits officers to conduct routine inspections and searches of all persons, including U.S. citizens, crossing the U.S. border without warrant, probable cause, or reasonable suspicion,” wrote Senator Peters. “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.”
Senator Peters continued: “The ability of these agencies to inspect property at the border—or at locations considered its functional equivalent—without a warrant, and under different legal standards than those applicable to law enforcement agencies without border search authority, is distinct. Specifically, we request information on how other agencies utilize CBP and ICE’s border search authority to access information on individuals’ electronic devices in situations where they would otherwise be required to obtain a warrant.”
Americans who have had their devices searched, and civil rights and civil liberties organizations, have raised concerns that the searches of electronic devices—which hold vast amounts of an individual’s private information — without a warrant constitute a significantly different circumstance than the search of luggage or a vehicle at the border. Given the vast amount of information on electronic devices, there are also concerns that the government has amassed large amounts of personal data collected during these searches. The senators are seeking information about these searches, how collected data is stored and shared, as well as the practice of other law enforcement agencies providing tips or recommendations to CBP and ICE that lead to these searches.
In his role as Chairman of the Homeland Security and Governmental Affairs Committee, Peters has been committed to greater transparency and fair treatment for all travelers in travel screening processes. Michiganders, including members of the Arab American and Muslim American communities, have raised concerns about persistent and potentially discriminatory enhanced screening practices and a reported increase in secondary inspections of American citizens in the Detroit Metro Airport that involve these electronic device searches.
In 2023, Peters released a report identifying how screening practices at airports that build on and expand beyond the terror watchlist have ballooned over time and outlined reforms to strengthen our national security by improving and instilling confidence in government screening practices. Peters also sent letters to the Inspectors General (IGs) of the Departments of Justice, Homeland Security, Defense, State, and Treasury, and the Intelligence Community requesting a coordinated review of the full implementation of the terrorist watchlist.
At Peters’ urging, the Government Accountability Office (GAO) released a report in 2022 assessing the TSA’s travel screenings for discrimination and making recommendations for improvement. Peters has hosted DHS Secretary Alejandro N. Mayorkas in Dearborn to meet with leaders from Michigan’s Arab and Muslim American communities to discuss travel screening and other civil rights issues. Following that meeting, Customs and Border Protection established a new position to serve as a community relations liaison between the agency and Michigan’s Arab and Muslim American communities.
The text of the letter is available here.
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