U.S. GOVERNMENT PUBLISHING OFFICE

31–483 PDF WASHINGTON : 2018

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 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

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 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, Montana 

GARY C. PETERS, Michigan 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

GREG MCNEILL, Staff Director 

ZACHARY SCHRAM, Minority Staff Director 

KATE KIELCESKI, Chief Clerk 
(III) 

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 

(1) 

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. citi-
2 

1The prepared statement of Senator Peters appears in the Appendix on page 21. 

zens 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 PETERS1

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. 

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 
3 

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 
4 

1The letters referenced by Senator Peters appear in the Appendix on page 66. 

2The prepared statement of Ms. Donohue appears in the Appendix on page 24. 

the Electronic Privacy Information Center be entered into the 

record.1

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. 

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. 
5 

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 
6 

1The prepared statement of Ms. Guliani appears in the Appendix on page 49. 

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. 

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. 
7 

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 

31⁄2 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 
8 

1The prepared statement of Mr. Feeney appears in the Appendix on page 58. 

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. 

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 
9 

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 
10 

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; 
11 

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 socalled 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 at-
12 

tenuated 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 
13 

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? 
14 

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? 
15 

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 
16 

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? 
17 

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 Pa-
18 

trol 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 
19 

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 
20 

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.] 
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