    [Senate Hearing 115-365]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-365

            EXAMINING WARRANTLESS SMARTPHONE SEARCHES AT THE BORDER

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON FEDERAL SPENDING
                       OVERSIGHT AND EMERGENCY MANAGEMENT

                                     of the

                                  COMMITTEE ON
                             HOMELAND SECURITY AND
                              GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 11, 2018

                                   __________

                      Available via http://www.Govinfo.gov

           Printed for the use of the Committee on Homeland Security
                            and Governmental Affairs

                            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            U.S. GOVERNMENT PUBLISHING OFFICE
    31-483 PDF			WASHINGTON : 2018

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                        RON JOHNSON, Wisconsin, Chairman
    JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
    ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
    RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
    JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
    MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
    JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
    STEVE DAINES, Montana                DOUG JONES, Alabama

                      Christopher R. Hixon, Staff Director
                   Margaret E. Daum, Minority Staff Director
                         Laura W. Kilbride, Chief Clerk
                       Bonni E. Dinerstein, Hearing Clerk

      SUBCOMMITTEE ON FEDERAL SPENDING OVERSIGHT AND EMERGENCY MANAGEMENT

                         RAND PAUL, Kentucky, Chairman
    JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
    MICHAEL B. ENZI, Wyoming             KAMALA D. HARRIS, California
    JOHN HOEVEN, Montana                 DOUG JONES, Alabama
                          Greg McNeill, Staff Director
                    Zachary Schram, Minority Staff Director
                          Kate Kielceski, Chief Clerk

                                C O N T E N T S

                                     ------
    Opening statement:
                                                                       Page
        Senator Paul.................................................     1
        Senator Peters...............................................     2
        Senator Wyden................................................    12
        Senator Jones................................................    13
    Prepared statement:
        Senator Paul.................................................    21
        Senator Peters...............................................    23

                                   WITNESSES
                            Wednesday, July 11 2018

    Laura K. Donohue, J.D., Ph.D., Professor of Law, Georgetown
      University Law Center..........................................     4
    Neema Singh Guliani, Senior Legislative Counsel, Washington
      Legislative Office, American Civil Liberties Union.............     6
    Matthew Feeney, Director, Project on Emerging Technologies, Cato
      Institute......................................................     8

                         Alphabetical List of Witnesses

    Donohue, Laura K. J.D., Ph.D.:
        Testimony....................................................     4
        Prepared statement...........................................    26
    Feeney, Matthew:
        Testimony....................................................     8
        Prepared statement...........................................    60
    Guliani, Neema Singh:
        Testimony....................................................     6
        Prepared statement...........................................    51

                                    APPENDIX

    Letters referenced by Senator Peters.............................    68
    Statement submitted for the Record from Customs and Border
      Protection.....................................................    81

            EXAMINING WARRANTLESS SMARTPHONE SEARCHES AT THE BORDER

                                  ----------

                            WEDNESDAY, JULY 11, 2018

                                     U.S. Senate,
                            Subcommittee on Federal Spending,
                        Oversight and Emergency Management,
                        of the Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:39 p.m., in
    room SD-342, Dirksen Senate Office Building, Hon. Rand Paul,
    Chairman of the Subcommittee, presiding.
        Present: Senators Paul, Peters, Harris, and Jones.
        Also present: Senator Wyden.

                   OPENING STATEMENT OF SENATOR PAUL

        Senator Paul. I call to order this hearing of the Senate
    Homeland Security and Governmental Affairs Subcommittee on
    Federal Spending Oversight and Emergency Management. I have to
    read it because the title of our Committee is so long, I cannot
    remember it.
        Today we will be discussing the Fourth Amendment's
    guarantee against unreasonable searches and seizures and its
    application to 21st Century technology at the U.S. border.
    Early last year, reports began to surface about travelers
    having their phones confiscated and searched by U.S. border
    authorities for no obvious reason and without a warrant or even
    much of an explanation. These searches have targeted a National
    Aeronautics and Space Administration (NASA) engineer, a former
    captain in the U.S. Air Force, a Wall Street Journal reporter,
    a government security contractor, and numerous other U.S.
    citizens.
        These searches are not just running a phone through an X-
    ray machine or a metal detector. Customs officials demand that
    these travelers unlock their phones so that the contents can be
    searched. If they refused, these travelers were threatened and
    interrogated. One man was handcuffed while another was
    physically restrained in a chokehold while government agents
    picked his phone out of his pocket. Yet another, the NASA
    engineer, was told that he was not allowed to leave until he
    gave his password to customs officials.
        Two ironies here: (1), the engineer was enrolled in the
    Border Patrol's Trusted Traveler Program, which strikes me as
    false advertising; and, (2), the phone in question was a
    government phone.
        Some may be asking, What about the Fourth Amendment
    protection against warrantless searches? Does this not extend
    to U.S. citizens at the border? Actually, the courts have held
    there is something of a gray area at the border, which, by the
    way, includes international airports and seaports. Customs
    officials may conduct routine searches of luggage or other
    containers without a warrant under what some refer to as ``the
    border search exception to the Fourth Amendment.'' This so-
    called exception has historically been used to ensure that no
    weapons, drugs, or other prohibited items, cargo, or persons
    are entering the country. I think that most Americans could
    agree that it is reasonable to let customs officials search
    suitcases for contraband. What is unreasonable is that
    government lawyers want you to believe that there is no
    difference between a suitcase and a smartphone.
        I disagree, and here again I think most Americans would,
    too. Physical contraband cannot enter the country unless it is
    smuggled in. But this is not the case for electronic property.
    Anything a Border Patrol Agent can find in the contents of your
    cell phone could enter the country through the Internet without
    the physical phone ever coming close to the United States. But
    it is all the more troubling when you consider what the
    government is gaining access to. Smartphones can reveal
    virtually everything about a person--their movements, habits,
    relationships, health, faith, and finances, all in a single,
    easy-to-use, and archived interface. Indeed, I think for many
    of us today, searching our smartphone would prove to be much
    more intrusive than even a search of our homes.
        This same sentiment has been echoed in recent Supreme Court
    decisions regarding the Fourth Amendment and digital data. In a
    unanimous opinion in a 2014 case involving cell phone searches
    incidental to arrest, Riley v. California, Chief Justice
    Roberts wrote, ``Cell phones differ in both a quantitative and
    qualitative sense from other objects that a person may
    possess.'' Searching a person's smartphone or other electronic
    device is fundamentally different than searching their suitcase
    or their car, and I believe as legal challenges to these
    searches reach the Supreme Court, they will agree.
        We have an esteemed panel of witnesses here today who will
    discuss the history of border searches, the appropriateness of
    using this authority to search smartphones, and what actions
    Congress should take to address this issue.
        At this time I would like to recognize Ranking Member
    Peters for his opening remarks. Senator Peters.

                 OPENING STATEMENT OF SENATOR PETERS\1\

        Senator Peters. Thank you, Mr. Chairman, for calling this
    hearing today. I appreciate your continued willingness to work
    in a bipartisan way to take on tough questions about our core
    values as Americans, our rights and responsibilities as
    citizens, and our role in the centuries long fight to ensure
    equal protection under the laws.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Peters appears in the
    Appendix on page 21.
    ---------------------------------------------------------------------------
        The problem we are exploring today requires us to examine
    detailed policy directives and puzzle over how 18th Century
    words fit to a 21st Century technology. The details are
    important undoubtedly, but at its core this hearing is about
    the liberties guaranteed to us by the Constitution. It is about
    our freedom to travel, our right to be secure against
    unreasonable search and seizure. It is about our right to be
    treated equally under the law without regard to race, national
    origin, or religion.
        The Fourth Amendment states clearly, and I quote from the
    amendment, ``The right of the people to be secure in their
    persons, houses, papers, and effects, against unreasonable
    searches and seizures, shall not be violated, and no warrants
    shall issue, but upon probable cause, supported by oath or
    affirmation, and particularly describing the place to be
    searched, and the persons or things to be seized.''
        U.S. Customs and Border Protection (CBP) asserts that the
    Fourth Amendment does not require a CBP officer to obtain a
    warrant or even have individualized suspicion before searching
    a smartphone or directing travelers to unlock their devices for
    official inspection. Today's witnesses, like most of the courts
    that have considered this question, disagree.
        This issue is of particular significance to those of us who
    live in Michigan. Michigan shares hundreds of miles of
    international border with Ontario, Canada, including the
    Ambassador Bridge, one of North America's busiest border
    crossings. Most importantly, Michigan is home to a large and
    extremely vibrant and patriotic Arab and Muslim American
    community, and community leaders tell me that they feel
    unfairly targeted by CBP.
        I have heard countless stories of my constituents returning
    from family vacations, medical conferences, work trips, you
    name it, and being singled out for additional screening, being
    required to turn over phones and computers, provide their
    passwords, and wait for hours while their devices are searched.
    Some constituents have reported being asked about their views
    on politics or foreign affairs.
        CBP says that travelers can file complaints if they feel
    that they have been mistreated, but my constituents fear that
    complaining will cause them further targeting. And who among
    us, tired from travel and eager to return home to family, would
    not feel very vulnerable in this situation?
        One of my constituents described his perceived targeting as
    a ``backdoor travel ban.'' The fear of unfair treatment and the
    profound inconvenience of repeated and prolonged searches
    creates an immense disincentive to travel. It hurts families.
    It impacts commerce. We can do better, and we have to do
    better.
        Under the Constitution, Arab and Muslim American citizens
    are entitled to the same liberty, the same privacy, and the
    same freedom of movement that I am entitled to. CBP plays a
    central role in securing our future and protecting our national
    security. It is critical that they have the tools that they
    need to succeed, but it is no less critical that those tools
    adhere to the Constitution in their design and application and
    that no law-abiding American is unfairly singled out.
        Just over the last few days, I have received several
    heartfelt letters describing unfair and unconstitutional
    treatment and asking for congressional intervention. Mr.
    Chairman, I ask that letters from the Arab American Institute,
    the Arab American Civil Rights League, the Arab American Anti-
    Discrimination Committee, and the Electronic Privacy
    Information Center be entered into the record.\1\
    ---------------------------------------------------------------------------
        \1\ The letters referenced by Senator Peters appear in the Appendix
    on page 66.
    ---------------------------------------------------------------------------
        Senator Paul. Without objection.
        Senator Peters. Congress should weigh in and establish
    clear constitutional rules and a means for ensuring that they
    are applied equitably. I am grateful that Senator Paul with
    Senators Wyden, Leahy, and Daines have taken the lead in
    identifying a path forward, and I hope this hearing goes a long
    way in making that path available.
        Senator Paul. Thank you, Senator Peters.
        First, I would like to begin by noting that we may have
    some Senators who are not on this Committee here today, and I
    would like to ask unanimous consent to allow them to fully
    participate in the hearing, provided Members of the
    Subcommittee be given deference in order of recognition.
        Next, I would like to remind the witnesses that the written
    testimony they have submitted will be included in the record
    and to keep your opening remarks to around 5 minutes. Let us
    begin.
        Laura Donohue is a professor of law at Georgetown Law and
    the director of Georgetown's Center on National Security and
    the Law, as well as the director of the Center on Privacy and
    Technology. She has written extensively on privacy,
    surveillance, national security, and emerging technologies, and
    enjoys the distinction of having been appointed as one of the
    five Friends of the Court to the U.S. Federal Intelligence
    Surveillance Court, positions which were newly created by the
    2015 USA Freedom Act.
        I would also note that she serves as a reporter for the
    American Bar Association's Criminal Justice Section Task Force
    on border searches of electronic devices, so she is
    extraordinarily well versed on the topic of the hearing today.
    Welcome, Professor Donohue.

      TESTIMONY OF LAURA K. DONOHUE, J.D., PH.D.,\2\ PROFESSOR OF
                 LAW, GEORGETOWN UNIVERSITY LAW CENTER

        Ms. Donohue. Thank you very much. Chairman Paul, Ranking
    Member Peters, and Members of the Subcommittee, thank you for
    the opportunity to testify at today's hearing.
    ---------------------------------------------------------------------------
        \2\ The prepared statement of Ms. Donohue appears in the Appendix
    on page 24.
    ---------------------------------------------------------------------------
        The border search of electronic devices is rapidly
    increasing. In 2015 CBP examined 8,500 devices. The number more
    than doubled the following year before soaring in 2017 to more
    than 30,000 searches. U.S. Immigration and Customs Enforcement
    (ICE) in turn searched just over 4,400 cell phones in 2015. In
    2016 it searched 23,000 devices.
        As Chairman Paul noted, the Supreme Court in Riley v.
    California recognized that these devices ``implicate privacy
    concerns far beyond those implicated by the search of a wallet
    or a purse.'' Even the term ``cell phone'' is misleading. The
    Court noted many of these devices are, in fact, mini computers
    that happen to be used as a telephone. They have an immense
    storage capacity and can hold millions of pages of text,
    thousands of pictures, or hundreds of videos.
        In contrast, most people do not lug around every piece of
    mail they have received for the past several months, every
    picture they have taken, and every article or book that they
    have read.
        The type of information is different than that uncovered in
    a luggage search: medical records, location information,
    political beliefs, religious convictions, and relationship
    details for decades, in fact, more information than can be
    ascertained from the search of your home.
        The Executive Branch is divided on how it addresses border
    searches. As Ranking Member Peters pointed out, CBP's January
    2018 guidelines allow for searches without any suspicion
    whatsoever. This means that the Executive Branch could seize
    the phones, iPads, and laptops of every Member of this
    Committee, those of your staff, your spouses, and your children
    whenever entering or leaving the United States without any
    suspicion of wrongdoing. There are no statutory limits on who
    can see this information, how long it can be kept, or how it
    can be used. And there is no special protection provided for
    sensitive materials, political materials, client-attorney
    privilege, trade secrets, medical information, or materials
    otherwise privileged under the law.
        For advanced forensic searches, officers must merely meet a
    standard of reasonable suspicion of illegal activities or
    national security concerns. No probable cause is required. The
    equivalent immigration directive has not been updated since
    2012. Like its counterpart, it pertains to any item containing
    electronic or digital information. But unlike its counterpart,
    ICE authorizes agents to search, detain, seize, retain, and
    share aliens' electronic devices and information with or
    without individualized suspicion. At any point during a border
    search, electronic devices or copies may be detained for
    further review, either on or offsite. They can be kept for 30
    days and extended at 15-day intervals thereafter.
        CBP claims the plenary authority to conduct searches and
    inspections of persons and merchandise crossing our Nation's
    borders. The government is right that this border search power
    derives from U.S. sovereignty. As I note in my written remarks,
    courts have for decades recognized that this power resides in
    Article I and Article II. But the Founders did not end the
    Constitution there. The Constitution also protects rights. And
    as Chairman Paul recognized when he introduced the Protecting
    Data at the Border Act, innovation does not render the Fourth
    Amendment obsolete.
        Three Supreme Court cases now recognize the heightened
    privacy interest at stake. Riley dealt specifically with mobile
    telephones. In the 2012 case of United States v. Jones, five
    Justices, the so-called shadow majority, adopted the view that
    individuals have a reasonable expectation of privacy in the
    whole of their physical movements. This past month, the
    Carpenter Court built on Jones. Chief Justice Roberts writing
    for the majority looked at just one type of information that is
    located on mobile telephones, noting six elements that make it
    different from other kinds of records, namely, that it is
    specific; it is retroactive; it is extensive, going back
    multiple years; it is precise; it is deeply revealing; and it
    is easy, cheap, and efficient to access.
        Mobile phone data is different in kind than other kinds of
    records, and it is different in kind than what we pack for a
    trip to, say, Australia. Lower courts, unclear about how to
    think about electronic border search post-Riley, Jones, and now
    Carpenter are reaching disparate and deeply concerning
    conclusions. I would be happy to discuss these further during
    the session.
        In addition to the Fourth Amendment issues, as I note in my
    written remarks, there are important First Amendment issues of
    freedom of speech and religion and association; there are Fifth
    Amendment self-incrimination and due process concerns; and
    there are Sixth Amendment right to counsel issues on the table.
        I look forward to the discussion. Thank you.
        Senator Paul. Thank you.
        Our next witness will be Neema Singh Guliani, who is senior
    legislative counsel with the American Civil Liberties Union's
    (ACLU) Washington Legislative Office, specializing in
    surveillance, privacy, and national security issues. She was
    previously on staff at the Department of Homeland Security
    (DHS) and Department of Agriculture and I think is very
    familiar with the type of oversight work we are doing here
    today from her time as investigative counsel with the House
    Oversight and Government Reform Committee.
        Welcome, Ms. Guliani.

        TESTIMONY OF NEEMA SINGH GULIANI,\1\ SENIOR LEGISLATIVE
        COUNSEL, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL
                            LIBERTIES UNION

        Ms. Guliani. Thank you. Chairman Paul, Ranking Member
    Peters, and Members of the Subcommittee, thank you for the
    opportunity to testify today and thank you for your leadership
    on this important issue.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Guliani appears in the Appendix
    on page 49.
    ---------------------------------------------------------------------------
        Each year, tens of thousands of individuals are subject to
    invasive and often humiliating searches of their electronic
    devices at the border without a warrant based on probable
    cause. One of these individuals is Diane Maye, a former Air
    Force captain and current professor of homeland security and
    global conflict issues. She is also a plaintiff in an ongoing
    case brought by the ACLU and the Electronic Frontier
    Foundation.
        In June 2017 Professor Maye was traveling to Miami when she
    was detained by CBP officers upon arrival. She was escorted
    into a small room, where CBP officers seized her smartphone and
    her laptop. Because she had no meaningful choice, Professor
    Maye unlocked both devices and watched as officers searched her
    laptop and later as they confiscated her unlocked phone for
    approximately 2 hours.
        In describing her experience, Professor Maye has said, ``I
    felt humiliated and violated. This was my life, and a border
    officer held it in the palm of his hand.''
        In yet another case, Ghassan and Nadia Alasaad, who are
    also plaintiffs in the same case, were returning from a family
    vacation when their entire family was detained by CBP,
    including their ill 11-year-old daughter. Upon arrival, they
    were directed to secondary inspection where CBP officers
    questioned Mr. Alasaad and searched through his unlocked phone.
    The CBP officers later requested that Ms. Alasaad turn over her
    cell phone password.
        The couple refused, in particular because Ms. Alasaad wears
    a headscarf in accordance with her religious beliefs and her
    cell phone contained pictures of her without her headscarf,
    which she did not want CBP officers, particularly male
    officers, to view. The CBP officers explained that failure to
    turn over the password and comply would result in Ms. Alasaad's
    phone being confiscated. Because they had no meaningful choice,
    the Alasaads provided the password.
        There are countless other examples, many which raise the
    additional concern that individuals are being improperly
    targeted based on their religion, political beliefs, or other
    impermissible factors. As Professor Donohue noted in her
    earlier remarks, the number of these searches has soared to
    over 30,000 in 2017, representing a 3\1/2\ time increase from
    2015.
        DHS violates the Constitution by engaging in these
    warrantless device searches, wrongly arguing that they fall
    under the border search exception to the Fourth Amendment's
    warrant requirement. These searches do not comport with the
    Fourth Amendment, as recent Supreme Court jurisprudence makes
    clear.
        The Supreme Court's unanimous Riley decision made clear
    that traditional exceptions to the Fourth Amendment's warrant
    requirement do not automatically extend to searches of digital
    devices. In its decision, the Court highlighted the volume and
    sensitivity of information stored on these devices, noting that
    it would allow someone to reconstruct the sum of an
    individual's private life. This term, in Carpenter, a case
    argued by the ACLU, the Supreme Court also ruled that
    historical cell phone location information was subject to the
    Fourth Amendment's warrant requirement. Similar information can
    often be gleaned from a device search.
        Indeed, several courts have rejected the government's claim
    that the border search exception places no limit on device
    searches at the border. The Fourth Circuit has recognized that
    a forensic search of an electronic device at the border
    requires some level of individualized suspicion, though it
    declined to address whether a warrant or probable cause is
    required.
        As this issue is litigated, however, thousands continue to
    have their rights violated. That is why it is important that
    Congress swiftly pass legislation, including the Protecting
    Data at the Border Act, sponsored by Senator Paul, Senator
    Wyden, and others. Congress should make clear that a warrant is
    required for all searches of the content of electronic devices,
    that travelers are not under an obligation to unlock or provide
    device passwords, and that individuals cannot be unreasonably
    detained for failing to consent to a search or unlock their
    device.
        Until such legislation is passed, Congress should press CBP
    to release new guidance that contains the following four
    improvements:
        One, the guidance should require a warrant in any case
    where the government seeks to search the content of a device.
    Current policy requires no suspicion for so-called basic
    searches and only reasonable suspicion for advanced searches.
        Two, the guidance should narrow the permissible purposes of
    the search. CBP should be prohibited from conducting searches
    at the request of or to assist other agencies. The guidance
    should also not allow suspicionless searches when there is
    vague so-called national security concerns. Such language is
    vague, could be interpreted as applying in cases where an
    individual poses no imminent threat, and increases the
    likelihood of discriminatory and arbitrary application.
        Three, the guidance should be amended to make crystal clear
    that travelers are not obligated to turn over their device
    passwords, and it should prohibit unreasonably detaining
    individuals for failure to take such action.
        And, finally, the CBP guidance should apply to all DHS
    components, including ICE, which maintains its 2009 policy
    which has even fewer protections.
        Again, thank you for your leadership on this issue, and I
    look forward to answering any questions you may have.
        Senator Paul. Thank you. Thank you for your testimony.
        Our next witness is Matthew Feeney. He is the director of
    Cato Institute's Project on Emerging Technologies where he
    focuses on the intersection of new technologies and civil
    liberties. He was previously an assistant editor at Reason.com
    and a writer at The American Conservative and the Institute of
    Economic Affairs.
        Welcome, Mr. Feeney.

     TESTIMONY OF MATTHEW FEENEY,\1\ DIRECTOR, PROJECT ON EMERGING
                      TECHNOLOGIES, CATO INSTITUTE

        Mr. Feeney. Thank you, Chairman Paul, Ranking Member
    Peters, and Members of the Subcommittee. Thank you for the
    opportunity to speak with you today about an important topic
    that I think should concern every American.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Feeney appears in the Appendix on
    page 58.
    ---------------------------------------------------------------------------
        In Riley v. California the U.S. Supreme Court recognized
    that searches of cell phones implicate privacy concerns beyond
    those associated with searches of wallets, cigarette packs, and
    other everyday items. Writing the Riley majority opinion, Chief
    Justice Roberts stated that the government's claim that the
    search of a cell phone and the search of a wallet are
    ``materially indistinguishable'' is ``like saying a ride on
    horseback is materially indistinguishable from a flight to the
    moon.''
        Roberts was correct. Our cell phones contain troves of
    revealing information about our personal relationships,
    careers, religious affiliations, and hobbies. It is no
    exaggeration to say that unfettered access to a cell phone
    allows investigators to uncover details about almost every
    intimate communication and relationship associated with the
    owner of that cell phone. Officials with access to cell phones
    can easily view photos, calendars, email accounts, social media
    postings, and other revealing data. Riley's holding that police
    need a warrant to search phones belonging to arrested persons
    recognizes the privacy interests American adults have in the
    content of cell phones.
        Despite Riley, as we have already discussed, cell phones
    and other electronic devices enjoy reduced protections at the
    border, thanks to the Fourth Amendment's border exception. The
    Supreme Court has yet to consider constitutionality of
    warrantless searches of electronic devices at the border;
    however, Congress can extend the Riley standard to the border
    via legislation.
        Although the warrantless search of electronic devices
    affect a minority of travelers, the number of these searches
    has been increasing, almost 60 percent between fiscal year (FY)
    2016 and fiscal year 2017.
        A 2009 CBP directive on electronic device searches stated,
    ``In the course of a border search, with or without
    individualized suspicion, an officer may examine electronic
    devices and may review and analyze the information encountered
    at the border.''
        A 2018 directive improved the 2009 directive, but not
    enough. The latest directive distinguishes between ``Basic''
    and ``Advanced'' searches. Under current DHS policy, a search
    of an electronic device that does not involve an officer
    connecting the device to external investigatory equipment is a
    Basic search. Basic searches do not require suspicion, which is
    required for so-called Advanced searches. The new directive
    includes a worrying provision that allows officers to examine a
    phone with external equipment if there is a ``national security
    concern.'' This is especially worrying because the directive
    notes that ``the presence of an individual on a government-
    operated and government-vetted terrorist watch list'' creates
    reasonable suspicion. Government watch lists, however, do not
    only include terrorists. Officials have placed law-abiding
    Americans on watch lists designed to prevent dangerous people
    from flying.
        The 2018 directive also requires travelers to unlock their
    phones. CBP officers have compelled American citizens to unlock
    and hand over their phones, even after being told that the
    phone contained sensitive data, such as those belonging to
    NASA's Jet Propulsion Laboratory.
        According to the latest directive, officers conducting a
    search must either have the travelers disable network
    connectivity or disable the connection themselves by, for
    example, putting the phone into airplane mode. But these
    policies are of little reassurance to travelers. Even in
    airplane mode, cell phones contain revealing information. Text
    messages, emails, photos, browsing histories, videos, and
    calendars are still available to officers examining a cell
    phone in airplane mode. In addition, cell phones in airplane
    mode do not conceal apps that the cell phone owners may use.
    You hardly need to have a phone connected to a network to
    uncover information about someone who has downloaded the Muslim
    Pro, Coinbase, or Tinder apps.
        Current DHS policy does not do enough to protect travelers'
    civil liberties. However, bills proposed by the Chairman as
    well as Senator Leahy do improve the CBP 2018 directive. A
    welcome provision of the Senator Wyden and Senator Paul bill is
    the warrant requirement for cell phone searches. The Leahy bill
    would also improve the status quo by requiring increased
    transparency. DHS has not published figures showing how many of
    these warrantless searches have contributed to terrorism or
    child pornography-related convictions. Such data would be
    welcome, as it would allow the public to better assess the
    efficiency of warrantless searches that endanger their privacy.
        As has been discussed, some of the U.S. courts of appeals
    have considered questions concerning the standard of suspicion
    that should be necessary; however, as things stand, there is no
    consensus. Until the Supreme Court addresses this issue,
    lawmakers can provide CBP with requirements that go beyond the
    unsatisfying directive issued by the Department of Homeland
    Security.
        Again, thank you for your attention to this important
    matter and for the opportunity to testify before you. I look
    forward to answering any questions you may have.
        Senator Paul. Thank you very much. I thank all of you for
    your testimony.
        When I first heard about this and I heard that it would be
    possible that an American citizen could leave the country and
    come back and be denied entry into their own country unless
    they give their password up, I was horrified by this. I very
    quickly called my colleague Ron Wyden and said, ``We have to do
    something about this.'' There are an array of people on both
    sides of the aisle who I think want to fix this.
        The first question I have is a little more tricky and goes
    to the fine point of things and may not bring us all into an
    agreement. But there is sometimes a debate over who the
    Constitution applies to. I think most people who read the
    Constitution realize it applies to everybody in the United
    States, all persons, Fifth Amendment, Sixth Amendment, you get
    a trial whether you are here legally, illegally, whatever your
    status is, you get a lawyer, a jury trial.
        It is a little bit different maybe at the border, and I
    think I could allow for a little bit of difference between
    citizens and U.S. persons and maybe those who are visiting.
    That is the question I throw out to you. For example, one of
    the gentlemen who had his phone taken was in the Trusted
    Traveler Program. Frankly, once you get in that program, if it
    is worth what it is supposed to be worth, you probably should
    be going through security much more easily than other people.
    Maybe somebody who is not in the Trusted Traveler Program might
    get searched more often, randomly or otherwise, and there might
    be different thresholds for people based a little bit maybe on
    citizenship and U.S. personhood versus someone who bought his
    or her ticket yesterday and is coming from an area where there
    is a lot of terrorism. Could we ask more questions at a lower
    level or would we have a warrant requirement for everybody?
        And so I would throw that question out to the panel on
    citizenship, whether the rules have to be exactly the same or
    at the border we might have a gradation based on citizenship
    versus non-citizenship.
        Ms. Donohue. Yes, thank you. I would distinguish here
    between law and policy. So as a matter of constitutional law,
    the Fourth Amendment--in 1990 Chief Justice Rehnquist ruled in
    a case called Verdugo-Urquidez that the Fourth Amendment does
    not apply to non-citizens who lack a substantial connection to
    the United States. And the reasoning that he had in that case,
    as well as Kennedy's concurrence in that case, which is
    slightly different from Chief Justice Rehnquist, but his
    reasoning was that the right of the people to be secure in
    their persons, houses, papers, and effects, as Ranking Member
    Peters quoted us the Fourth Amendment, it is the same people
    that are the people in the Constitution; therefore, the Fourth
    Amendment does not apply. And this might explain the difference
    between CBP's provisions, which come from a customs background
    applied as to U.S. persons, as opposed to immigration
    provisions in Title 19, which apply then to aliens and non-U.S.
    persons.
        With that said, in the last hearing that you had on this in
    2017, there was a really interesting discussion, and at that
    point Senator McCaskill noted that if she were visiting another
    country and was asked at that point to turn over your social
    media password, your mobile phones, all of your records, that
    this could cause significant foreign affairs and national
    security concerns. So she said, ``If my family was traveling to
    the United Kingdom and they told me we would have to answer
    questions about my beliefs, we would not go.'' This will have a
    profound impact on our standing in the world, a profound impact
    on the nature of our alliances around the world, and a profound
    impact on our national security.
        So while as a matter of law many of these--there might be a
    line to be drawn, and that I am happy to speak to as a
    constitutional law person, but as a matter of policy, that is
    something that Congress would have to take on board.
        Senator Paul. Right, and I think the one response I would
    have to that is that while you have to have scrutiny and you
    want protection, you also want to find ways that make the
    United States a friendly place to visit. That is why I am
    actually a big believer in some of the Trusted Traveler
    Programs, the frequent flyer programs. Let us try to do
    background scrutiny on people so they can go through the
    airports much easier and they do not feel oppressed. You could
    be from any country in the world. If you have gone through the
    process and we have screened you, I think we could get that. I
    really think we need to extend the Trusted Traveler Program to
    the whole world, and even the countries where we are so-called
    banning people now. Let people go through who are legitimate
    businessmen and businesswomen or academics or physicians or
    whatever that have legitimate reasons. I think we could
    probably obviate some of the problems we have, because you are
    right, who would want to go to a country where they are going
    to take your cell phone from you? But, on the other hand, we do
    have to worry about people coming here who might attack us.
        I think without question American citizens and U.S. persons
    should be protected by the Fourth Amendment when they come back
    home.
        Did either of you want to----
        Ms. Guliani. I think there are strong arguments in favor of
    applying a warrant standard to U.S. persons and non-U.S.
    persons. In addition to the reciprocity issue, how we treat
    non-U.S. persons when they arrive here is how we may be treated
    abroad. We have to recognize that the searches of these devices
    implicate not just the privacy of the person who owns that
    phone, but potentially thousands of others, their family
    members, their associates. When you are talking about, let us
    say, business travelers, they may have emails and other content
    that implicates the privacy of individuals inside the United
    States.
        So we are talking about an enormous privacy violation, and
    we are talking about searches that at the outset are really
    quite attenuated from searching for contraband, like you might
    do in luggage, or admissibility. For that reason, I think the
    right policy outcome is a strong standard that applies to both
    U.S. citizens as well as travelers.
        Mr. Feeney. I suppose it is difficult for me to give an
    unbiased opinion on this given I became an American citizen
    deliberately and happily after, well, retaining my British
    citizenship. I would note that I think the proposed legislation
    proposed by Senator Wyden, the Chairman, and Senator Leahy are
    all improvements on the status quo. But I think that what Neema
    and Laura mentioned is right, that maybe purely in the foreign
    policy realm, that it is good for our foreign policy to extend
    protections because we should be wary of how American citizens
    will be treated when they travel abroad.
        Senator Paul. Thank you for those responses. I have a
    family urgency I have to get to, so Senator Peters has agreed
    to take over. Before I leave, though, I want to thank Senator
    Wyden for coming. It is not very often that a Senator comes to
    a Committee they are not on, and I appreciate his support on
    this issue and actually coming to a Committee that he is not
    even obligated to come to.
        With that, I am going to turn the gavel over to Senator
    Peters.
        Senator Peters [presiding]. Thank you, Mr. Chairman, and I
    will actually recognize Senator Wyden. I know you have a busy
    schedule, and the last thing you needed was another Committee
    to come to, but we appreciate that you are here because I know
    this is an issue you are passionate about, and you have the
    floor.

                   OPENING STATEMENT OF SENATOR WYDEN

        Senator Wyden. Well, Senator Peters, thank you for your
    thoughtfulness. Thank you, Senator Jones, for giving me the
    opportunity, and also to the majority that arranged for me to
    come. I know this is unorthodox, and being unorthodox has
    characterized my life. [Laughter.]
        I thank you all for it.
        Just one question so I do not impose too much on my
    colleagues. From the very beginning, what we tried to tap into
    was the zeitgeist of the times, and the zeitgeist of the times
    seems to be picking up, for example, that digital is truly
    different. That is how John Roberts puts it. The Carpenter case
    was certainly a step in the right direction, really looking to
    some of the privacy issues surrounding geolocation questions,
    and I remember from my Intelligence Committee days, we
    established that you had privacy rights overseas, if you were a
    soldier, and certainly constitutional rights should not stop
    automatically. They should not just disappear at the border.
        So for my one question, Ms. Guliani, let me ask you about
    the government waiting until a person gets to the border zone.
    When you think about this concept, the question is whether it
    could be used as an end run around the warrant process. And all
    our bills, metadata, the bill as it relates to border searches,
    we have always had this, I think, very generous emergency
    exception so that if the government really thinks the security
    and safety of the American people is at stake, you can move
    quickly, then come back and settle up later on the warrant
    process. But to actually have an end run around the warrant
    process is something completely different, and what you would
    have is just the opposite of my saying you ought to have an
    emergency process when something looks serious, the government
    does not have much to go on, probably does not have enough to
    get a warrant, so the government waits until the person gets in
    the border zone, then asks another agency, maybe CBP, to grab
    the devices for searches.
        Now, in our bill we require reporting on instances like
    this in addition to requiring a warrant. Does anybody know how
    often these kinds of searches take place by agencies, like ICE
    would be an example?
        Ms. Guliani. We have reporting by CBP which has put out
    numbers that shows a dramatic increase in border searches. But
    I think what your remarks sort of touch on is a bigger problem:
    one, the weaknesses in the guidance in allowing these
    warrantless searches; the fact that the guidance does not
    prohibit them from being used for general law enforcement
    purposes as an end run around the Constitution. For example,
    the guidance does not prohibit searches performed at the
    request or to assist other law enforcement agencies, which is a
    major problem. And there is also, I think, a question about
    oversight and compliance even with the limited protections in
    that guidance. How do we know that a lot of the restrictions in
    that guidance are really being followed by the agency? The fact
    is that there is not a lot of comfort that that is happening.
        Senator Wyden. I appreciate the way in which you have
    tackled this over the years, keeping the focus on the
    substance, and we have talked to Mr. McAleenan about exactly
    some of those kinds of concerns, and some of those may be
    possible to address administratively as well as by statute.
        Senator Peters, Senator Jones, I thank you both for your
    courtesy, and I look forward to working with you both on this
    and many other matters in the days ahead.
        Senator Peters. Thank you, Senator Wyden, and thank you for
    your leadership on this issue and other issues related to
    privacy and constitutional protections. We appreciate it.
        Senator Jones, you are recognized.

                   OPENING STATEMENT OF SENATOR JONES

        Senator Jones. Thank you, Senator Peters.
        This is always a tough issue for someone who has been both
    a prosecutor and a defense lawyer, because I have been on both
    sides of the aisle, I recognize that. Of course, I think that
    also made me a better lawyer to understand when I could see
    both sides of this.
        I am curious, Ms. Donohue. There are people who say the
    counter to the argument is that given the nature of a border
    crossing--and I mean at a port of entry (POE)--that you could
    really never get probable cause to go to a magistrate, to
    select--absent an extraordinary--somebody coming in with a sign
    hanging around their neck saying, ``I am a dangerous person,''
    you could really never get enough information to get a warrant
    to search a phone. What is your response to that for folks that
    are coming in? They are just travelers, they are coming in.
    What would it take to get past that probable cause standard?
        Ms. Donohue. Yes, thank you for the question. There are a
    number of cases where the courts have actually said they had
    probable cause in order to examine the phone. So even post-
    Riley we see cases that have come forward. There is one that
    came out of the Fourth Circuit, for instance, United States v.
    Kolsuz, and in that the court said that the forensic border
    search of a mobile device was non-routine; it required
    individualized suspicion. But it did not reach what level of
    individualized suspicion was required, whether it was regular
    individualized suspicion or some sort of probable cause,
    because they said in that case probable cause was present.
        Similarly, in the Fifth Circuit there is a case, United
    States v. Molina-Isidoro. The court said once again some level
    of individualized suspicion is necessary, but in this case they
    had probable cause in order to search the device. And there are
    many cases like that where the courts have come forward and
    said, ``Well, they actually had probable cause.'' It tends to
    be where there is some--one of two things has happened. Either
    they have found criminal items in the suitcase, for instance.
    In one case it was firearms parts that were illegally being
    exported out of the country. That was probable cause to search
    the phone. In other cases it might be a text hit on the
    Treasury system or some other hit when they run a name through
    a database. Then that satisfies probable cause depending on the
    information that comes up. I think that there is an empirical
    counter to that.
        The one thing I would mention, however, is the history of
    this is this was actually to raise revenue for the United
    States, and that was the history from England, and I wrote
    about this--they are in the written remarks, the history of
    this. This has never been used as a general law enforcement
    power, and that is partly to prevent it from becoming an end
    run around the Fourth Amendment. This is specifically for
    customs issues and post-World War II, certain other items that
    might be carried in the mails like child pornography and the
    like.
        So there are limits on the types of things that they can
    search for at the border, and that is probably why the border
    exception.
        Senator Jones. Let me follow up on that with you and
    probably Ms. Guliani. You mentioned contraband. That is what
    people normally think. You go through customs. They look at
    your suitcase to see if you are bringing in Cuban cigars, those
    kinds of things. Can't you bring in contraband on your cell
    phone?
        Ms. Donohue. Child pornography has been the way that this
    is presented most readily at the border, and the way that they
    have actually found that is just by searching the cell phone
    when they have reasonable suspicion, usually from some sort of
    a hit, a lower level hit on one of the systems that they can
    check when somebody comes across the border. That seems to be
    the level. There are some plans that have been used. There was
    a computer facility that was going to be built in Iran, and
    they found some plans that were actually on the cell phone. I
    guess one could consider that a form of contraband of a sort,
    but it tends to be really in the child pornography area that we
    have seen cell phones used, which raises the difficult issue as
    a prosecutor. Should you be able to just upload it to the cloud
    and pull it down on the other side? And what do we do for those
    types of cases?
        Senator Jones. Sure.
        Ms. Donohue. And there I would suggest the Foreign
    Intelligence Surveillance Act (FISA). When the law came down,
    the Foreign Intelligence Surveillance Act can be used when the
    primary aim is criminal in nature, and we have surveillance
    provisions that are addressing those types of criminal
    activity.
        Senator Jones. Do any of you have an issue with a border
    agent being able, I say an agent, a customs agent, for whatever
    reason just kind of randomly saying, OK, you are number 14 in
    line, sorry, we are going to go look through your suitcases? Is
    anybody going to have a problem with that? That happens. Nobody
    has a problem with that? All right. I am getting silence, so I
    am going to assume that nobody has a problem.
        I have a question. I hate to dumb this down a little bit,
    but this is a tough topic. I mean, it really is. So if in that
    suitcase there is a three-ring binder like the one I have here,
    is it OK for the agents to look through that binder?
        Ms. Guliani. I think the distinction when we are talking
    about electronic devices is sort of twofold. One is just the
    quantity and the types of information we are talking about.
        Senator Jones. Why does that make a difference? I am not
    challenging you. I am just asking you for the record. Why does
    that make a difference because of the quantity as opposed to
    the thickness of the binder?
        Ms. Guliani. As the Supreme Court has recognized, the types
    of information on an electronic device are different. We are
    talking about medical information, information about your
    religious beliefs, your political affiliation. You are talking
    about quantity and types of information that are extraordinary
    sensitive. It would be the equivalent of somebody arriving at
    the border not just with a suitcase, but maybe an entire house
    full of papers. That just does not happen. I think that we are
    really in a different realm when we are talking about digital
    searches of data.
        And then when we look at sort of the purposes underlying
    border searches, looking for contraband, determining
    admissibility, these types of searches are quite attenuated.
    Even in the child pornography context, there is not particular
    evidence that suggests that the border is an area where there
    is increased risk of that. Child pornography certainly is a
    problem, but it is something that individuals use the Internet
    for. If you have that exception, what you are essentially
    saying is, because of this one issue that there is no evidence
    is more prevalent at the border, we are going to open up every
    single individual to a search that is incredibly invasive,
    often humiliating, often scary and frightening for the people
    who are put in that position. That seems to me to swallow the
    Fourth Amendment.
        Senator Jones. All right. Thank you. I think I am about out
    of time. Let me say I think this is a really tough issue, and I
    agree with all of you, because the one thing that troubles me
    more than anything about this issue is the potential for
    profiling and targeting in a bad way. With all due respect to
    you all, the issue of the invasive search is an issue for me
    but not as much for me as it is targeting people with last
    names that raise an eyebrow. I think that is a real issue. As a
    prosecutor you can take anything anybody says and say, ``Oh,
    here it is,'' whether they answer fast, whether they answer
    slow, whether they hesitate, whether they do not. There are
    just so many ways you can read into it the way you want to read
    into it, and so the profiling is an issue that I am really kind
    of focusing on, Mr. Chairman. Thank you very much, Senator.
        Senator Peters. Thank you, Senator Jones.
        Actually, I will pick up on the profiling comment. In my
    opening comments I mentioned the fact that we have a vibrant
    Arab American/Muslim American community in Detroit, and it is
    exactly that concern that I hear regularly from the community,
    that folks can pretty much plan on spending more time at the
    airport coming and going based on the fact that they are part
    of that community. What are you hearing out there? Is this
    real? And how do we deal with it?
        Ms. Guliani. I think we have heard a series of disturbing
    complaints. In a complaint that was received by the Knight
    Institute through a FOIA request, there was a report of an
    individual who in the same encounter they had their device
    searched, they were asked about their political affiliation,
    their religious beliefs, and who they gave charitable
    contributions to. I think these types of complaints raise the
    concern that individuals are being inappropriately targeted
    because of their religion or how they look, and that, frankly,
    is one of the reasons a warrant requirement is so important.
    Whether your device is searched and whether you are held should
    not be the result of a whim by a particular officer. It should
    be subject to strict judicial oversight. The fact that there is
    no warrant really allows and enables that type of
    discriminatory targeting in a way that raises significant
    constitutional concerns.
        Senator Peters. Mr. Feeney, the CBP's current rules include
    instructions for any data that is collected to be destroyed if
    the data does not provide probable cause. For anyone whose
    smartphone or laptop has been seized, searched, or returned by
    the CBP, how sure can we be that the data collected is truly
    deleted and is no longer accessible either to those authorities
    or any other government agency?
        Mr. Feeney. Well, I think that there is a certain point at
    which you trust that CBP are adhering to their own policies.
    There are, of course, audits that will oversee that kind of
    thing.
        The worry, of course, though, is that some U.S. citizens
    might not take that policy as reassurance enough. One of the
    cases that was mentioned was of this NASA engineer who had his
    travel interrupted and his phone searched, and afterwards he
    did make changes to the phone and his social media profiles.
    And I do not think that is much of a surprise.
        The guarantee that non-relevant data is destroyed is really
    important, but, frankly, even with CBP saying that they will do
    it, I imagine it will still change the behavior of American
    citizens who are stopped at the border because I think knowing
    that your phone has gone to a back room and has been examined
    by officers will prompt some change of behavior, and we should
    not be that surprised by that.
        Senator Peters. Yes, Ms. Donohue?
        Ms. Donohue. Yes, I just wanted to note that leaving it to
    CBP and ICE to police themselves, to come up with their own
    regulations, is quite dangerous. This was actually exactly the
    proposal that was put forward in Riley. The government argued
    to the Court that we should be able to come up with our own
    regulations for how to deal with cloud technologies and mobile
    phones. The Court replied, saying, ``The Founders did not fight
    a revolution to gain the right to government agency
    protocols.'' It was a really profound point that the Court had,
    which is this is about rights, and those rights should be
    statutorily guaranteed, and they are constitutionally
    guaranteed. They should not be left up to the whim of an
    organization or an agency in terms of their regulations.
        Ms. Guliani. Right, and this is absolutely an area where
    there needs to be more oversight. We do not know to what extent
    CBP complies with its own limited protections that are in its
    policy. When it comes to data retention, I think there does
    need to be independent auditing, compliance reviews done by
    independence entities to make sure that even what is in those
    policies is being followed.
        Senator Peters. You mentioned the cloud. I just want to be
    sure that I understand what we are dealing with here. If you
    access the device, what was being stored on the device, that
    does not mean--or does it--that once you get into the phone,
    then you access cloud storage that an individual may have,
    which, of course, opens up more than a house. That is a whole
    building full of materials. Is there a limit to this? What are
    we talking about?
        Ms. Donohue. For ICE there is not. For CBP it is in their
    regulations. As of January of this year, they now say that you
    have to put the phone in airplane mode while you are examining
    it. But that has been as a regulatory matter, not as a
    statutory one.
        Senator Peters. That is back to your point, that we are
    counting on them to do that, and it would be better for us to
    look at that legislatively to prevent that from happening. ICE
    does not have to do that, though.
        Ms. Donohue. Right, ICE has no limits in their regulation
    on that.
        Ms. Guliani. I think that is part of the problem. We have a
    CBP policy. It does not extend to all of DHS. So ICE is still
    bound by its 2009 policy, which has even less protections.
    Again, I think the cloud issue raises another area where there
    needs to be more oversight. I am sure you have heard stories,
    as we have heard, of individuals who say, look, information in
    the cloud was accessed during these searches, whether that was
    before the change or after the change, and it certainly is an
    area where there needs to be more rigorous oversight to ensure
    that policy is being followed.
        Senator Peters. Mr. Feeney.
        Mr. Feeney. I would only mention, as I mentioned in my
    remarks, putting a phone into airplane mode is actually not as
    big a privacy protection as I think a lot of people believe it
    is. Most of the intimate details on someone's phone are still
    accessible to a phone in airplane mode, including emails, text
    messages, browsing histories, and photos.
        Senator Peters. Right. Now, we have been discussing
    searches right at the port of entry or right at the border, but
    the Border Patrol is also authorized to set up checkpoints and
    patrols within 100 miles of international borders and coasts.
    Being from the State of Michigan, we have a lot of
    international border, as I mentioned. If you go 100 miles from
    that border, it is a pretty good chunk of the State. In fact, I
    think the ACLU says the entire State. I am not sure the
    geography works for that, but, nevertheless, it is a
    significant part.
        Talk to me a little bit about those authorizations and
    things that we should be concerned about.
        Ms. Guliani. When it comes to device searches, it has
    primarily been done at ports of entry. Were CBP to do it in the
    interior, I think it would be unconstitutional. But I share
    your concern. I think that we have long been concerned about
    this 100-mile zone where CBP asserts its authority to conduct
    stops and to conduct searches without a probable cause warrant.
        We have heard stories from individuals who live in that
    100-mile zone who report being stopped by officers, undergoing
    often humiliating experiences, really expressing consternation
    that they are Americans living in America and they are being
    subject to this kind of treatment by their own government.
        Senator Peters. Ms. Donohue.
        Ms. Donohue. Thank you. I would add a couple of things.
    First is the fleeing felon exception. We all know this is an
    exception to the warrant requirement for the home, and it goes
    back centuries, into English law.
        Similarly, the way that we have thought about customs
    border authorities historically through the United States'
    history has been that as somebody crosses the border, it is
    almost like the fleeing felon, like you have this extended
    border as they extend into the interior. The reason for this is
    because illegal goods put on vehicles or vessels could be
    transported somewhere else. There is this exception idea that
    when that item is on that car and it is being shipped somewhere
    else, that illegal item that is undutied or illegally brought
    into the United States, then you can chase it. That is a very
    different determination than whether you can go through
    somebody's home. I would really distinguish between those two.
        In addition, there are special home protections even away
    from the border. Within those 100 miles, ICE cannot just go
    onto anybody's farm; they cannot go onto open agriculture land.
    They need a warrant in order to do so because of the privacies
    of life, because of what individuals living there would be
    exposing to the government unwillingly or unwittingly perhaps.
        I think on both counts, both in terms of comparing it to
    the fleeing felon and the reason why we have this customs
    border exception as well as looking at the protections afforded
    the home, I think it would be an invalid exercise of the border
    search authority within that 100 miles.
        Senator Peters. All right. Thank you.
        One of the proposals before us includes requirements that
    the government collect specific statistics about the people
    whose electronic devices they are searching or seizing, noting
    age, sex, country of origin, citizenship, or immigration
    status, ethnicity and race of any traveler subjected to
    electronic device searches or seizures, as well as the number
    of travelers whose devices were searched and seized. I have
    heard some conflicting opinions about this from folks in
    Michigan and people representing communities that feel
    particularly targeted by these practices, with some arguing
    that knowing these statistics would help identify
    discrimination, but others arguing that this information could
    be potentially misused.
        My question is: Where do you fall in that debate? Mr.
    Feeney, from your perspective as a researcher on these issues,
    what kinds of data should be useful for the government to
    collect about people stopped, searched, or detained by the
    Border Patrol? In what instances should that data be collected
    by the government, if at all?
        Mr. Feeney. I think that DHS should publish not only the
    number of these searches but also the suspicion they had for
    the searches. I do not object to the age, citizenship, or--I
    suppose citizenship status, of course, there is a whole host of
    data demographics that I do not object to being revealed. I
    take the point that there is a worry about this data being
    misused. But the most important data that I would like to see
    more transparency with is the number of times this authority
    has actually led to or been involved with cases that have
    convictions. It is not clear how efficient this authority is. I
    think it is interesting that when DHS spokespeople have been
    before committees such as this, they have not been particularly
    forthcoming about the number of times that this authority--
    actually, at least convictions, that is the most interesting
    data point. I would welcome there being more data associated
    with the citizenship, age, sex of the people affected by these
    searches, as long as, of course, their names are withheld.
        Senator Peters. Right. Ms. Guliani.
        Ms. Guliani. Similarly, we share your concern that these
    searches may be used to target people inappropriately. I think
    data could help to get at that point and reveal the extent to
    which particular travelers are targeted. But bottom line, the
    reason we have these concerns, the reason there is this problem
    is because CBP's policy allows searches either with no
    suspicion for a basic search or with only reasonable suspicion
    for advanced searches. What really needs to happen is a warrant
    requirement so that there is judicial oversight to protect
    against that type of discriminatory application.
        Ms. Donohue. I agree with my colleagues, but I would have
    First Amendment concerns about collecting that kind of
    information from individual travelers.
        I would also like to add on a point that Senator Wyden
    raised, my concern about a lot of this is it is becoming an end
    run around the Fourth Amendment, and we actually do have cases
    on the record where agents have come forward and said, ``Yes, I
    could have actually done something while this person was in the
    country, but I knew that when they crossed the border, I would
    have just had much broader powers.'' They wait for people to
    travel in order to conduct these searches. I would be
    interested in the type of information that would reveal that
    kind of activity, which I think is particularly pernicious and
    concerning.
        In addition, I guess one other thing that I want to mention
    is the circuits are split right now. We have not had even
    application of Riley to the border search exception, and so the
    Eleventh Circuit just issued an opinion where it said that
    there is no individualized suspicion required whatsoever at the
    border. This is not at all a settled issue, and I think it is
    particularly important for Congress to step forward and weigh
    in.
        Senator Peters. Right. Well, thank you. I would like to
    thank our witnesses for your testimony today as well as your
    work in this very important issue. I think you will find there
    is quite a bit of interest to Members of this Committee to
    continue to work with you and to continue to work on this
    issue.
        Seeing no one else here to ask any questions, I am going to
    close the hearing, and I am going to remind everyone that the
    record will remain open until July 25 at the close of business
    for Members to submit additional questions or comments to our
    witnesses. With that, this hearing is adjourned.
        [Whereupon, at 3:36 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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