Peters presses DHS officials on searching electronic devices at the border

Immigrants wait overnight next to the U.S.-Mexico border fence to seek asylum in the United States on Jan. 07, 2023 as viewed from Ciudad Juarez, Mexico. As of August, there is a backlog of more than 2.6 million pending immigration cases, according to the Transactional Records Access Clearinghouse, a research center at Syracuse University. (John Moore/Getty Images)

U.S. Sen. Gary Peters (D-Bloomfield Twp.) last week sent a letter to the Department of Homeland Security, seeking information about how its border search authority applies to electronic devices and their data. 

U.S. Sen. Gary Peters (D-Bloomfield Twp.) speaks at the Mackinac Policy Conference, June 1, 2022 | Laina G. Stebbins

The letter, which was also signed by U.S. Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.) and Mike Crapo (R-Idaho), sought to understand how U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) officials use their authority to search, download content, and access sensitive information on electronic devices without a warrant. 

“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,” Peters wrote in the letter.

“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,” he wrote. 

The search of electronic devices has raised civil rights concerns due to the amount of information they contain, with the Supreme Court unanimously ruling in Riley v. California that police officers must obtain a warrant in order to search a person’s device under Fourth Amendment, which prohibits unreasonable searches and seizures.

However, searches at the border receive an exception to the Fourth Amendment, allowing federal officers to conduct routine inspections and searches of individuals at the U.S. border without probable cause or reasonable suspicion of criminal activity.

The ACLU, which submitted a brief in the Riley case, has pushed for limits on the government’s power to search phones and laptops at the border. 

The CBP and ICE have a distinct ability to inspect property at the border that is subject to different legal standards than agencies without border search authority, Peters wrote in the letter. The senators are specifically interested in how other agencies use CBP’s and ICE’s search authority to access information on individuals’ electronic devices where they would normally be required to receive a warrant. 

They are also seeking information about other law enforcement agencies providing tips that lead to these searches, and how data collected during the search is stored and shared. 

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