A U.S. senator said Thursday that Homeland Security is bamboozling Americans into agreeing to allow their phones to be searched at the border, then storing their data for 15 years in a database that lacks good controls over who can access it.
Sen. Ron Wyden, Oregon Democrat, said Customs and Border Protection is stretching a 1986 law in pushing Americans to allow their electronics to be searched without a warrant, pressuring them to unlock the devices despite a sketchy legal basis for doing so.
And Mr. Wyden said CBP will sometimes “dump” the device data into its own system, where everything — texts, emails, pictures and documents — are saved for 15 years and can be accessed by thousands of agency employees.
“Innocent Americans should not be tricked into unlocking their phones and laptops,” Mr. Wyden wrote in a letter demanding answers.
CBP acknowledged it collects and stores some data for 15 years, saying that’s the timeframe required by the National Archives.
The agency said that happens in cases where someone is “a significant law enforcement, counterterrorism, or other national security” concern.
“In conducting border searches, CBP officers strictly adhere to all constitutional and statutory requirements, including those that are applicable to be privileged, personal, or business confidential information,” the agency said in a fact sheet. “CBP has strict oversight policies and procedures that implement these constitutional and statutory safeguards.”
Searches are relatively rare, given the total cross-border traffic. Out of 179 million entries through official ports in 2021, the agency conducted 37,000 searches of electronic devices.
This year, through 10 months of the fiscal year, CBP has rallied 38,600 searches so far.
Most are deemed “basic” searches where an officer would scroll through the device. “Advanced” searches involve downloading data.
The agency’s memo didn’t say how often advanced searches happen, citing “law enforcement sensitivities,” though Mr. Wyden said CBP told his office it was “less than 10,000” devices a year.
Mr. Wyden said about 2,700 Homeland Security personnel have access to the database and can search “at any time, for any reason.”
The senator said CBP officers provide Americans with a “tear sheet” explaining their rights, but it isn’t required to be given at the start of the encounter so someone might already have been “coerced” into unlocking a device by that time.
And the sheet doesn’t mention the 15-year data retention aspect.
“The tear sheet also states that collection of travelers’ information is ‘mandatory,’ but fails to convey that CBP may not arrest an American or prevent them from entering the country if they refuse to tell CBP their password,” Mr. Wyden said.