[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

                              ----------                              

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]