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Feingold, Cantwell, Smith Offer Bill Protecting Travelers from Suspicionless Laptop Searches

Press Release

Location: Washington, DC


U.S. Senators Russ Feingold (D-WI) and Maria Cantwell (D-WA) and Representative Adam Smith (D-WA) have introduced legislation to ensure that American citizens and legal residents returning to the U.S. from overseas are not subject to invasive searches of their laptop computers or other electronic devices without any suspicion of wrongdoing. The Travelers Privacy Protection Act was introduced in response to a Department of Homeland Security policy, released on July 16th that allows customs agents to detain laptops for an unspecified period of time to "review and analyze" their contents "absent individualized suspicion." The policy was released after reports emerged of U.S. customs agents requiring American citizens and legal residents to turn over their laptops or cell phones and wait for hours while the devices were searched. In some cases, the contents of the devices were copied, and in other cases, the devices were confiscated and returned weeks or even months later with no explanation. The bill is cosponsored in the Senate by Senators Daniel Akaka (D-HI) and Ron Wyden (D-OR).

"Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, emails, and photographs, and examine which websites they visited - all without any suggestion of wrong-doing," Feingold said. Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans."

"We need to strike the right balance of keeping Americans safe while protecting their right to privacy. When it comes to homeland security, this Administration time and time again has exceeded the boundaries of current law behind closed doors, without public input, and without oversight. The search and seizure of computers, cell phones, digital cameras, and other electronic devices of returning U.S. travelers at airports, even where there is no reasonable suspicion of wrongdoing, is just the most recent example. This bill establishes reasonable rules of the road under which the government can protect our border, while not violating American's precious constitutional rights," Cantwell said.

"The chief responsibility of the United States Government is to protect its citizens, and while doing so it is critical that we do not overshadow the obligation to protect the privacy and rights of Americans. This legislation will provide clear and commonsense legal avenues for the Department of Homeland Security to pursue those who commit crime and wish to do our country harm without infringing on the rights of American citizens. Importantly, it will provide travelers a level of privacy for their computers, digital cameras, cellular telephones and other electronic devices consistent with the Constitution and our nation's values of liberty," Smith said.

The Travelers Privacy Protection Act requires Department of Homeland Security agents to have reasonable suspicion of illegal activity before searching the contents of laptops or other electronic devices carried by U.S. citizens or lawful residents, and it prohibits profiling travelers based on their race, ethnicity, religion, or national origin. The bill also specifies that after 24 hours, a search becomes a seizure, which requires probable cause and a warrant or court order. Information acquired during an electronic border search is protected through strict limitations on disclosure, with narrow exceptions for sharing information about possible criminal violations or foreign intelligence information. Finally, the bill contains provisions ensuring that DHS provides information on its border search policies and practices to Congress and the public.

On June 25th, Senator Feingold chaired a hearing in the Senate Judiciary Subcommittee on the Constitution on the DHS border search practices. Following the hearing, DHS finally posted on its website its search guidelines for customs agents, after having resisted calls for public disclosure for nearly two years.

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