Barry Covert wrote a guest column that appeared in the
October 9 issue of the Buffalo Law Journal. In “In this digital age, know your
rights”, Mr. Covert details how advances in technology and changes in national
security are affecting the rights of American citizens at the country’s borders
and airports. The article also includes an explanation of current policy regarding
the extent to which a person’s cell phone and laptop can be searched and
efforts from various lawmakers and organizations to make changes to that
The full article is available on the Buffalo Law Journal
In his article, Mr. Covert explains that, currently, cell
phones and laptops can be searched at airports and borders “with or without
individualized suspicion.” American citizens are not required to tell border
agents the passwords to their phones or social media accounts, but data can be
retrieved from some phones even without having the password. Agents are also
only allowed to look at data that is stored physically on the phone; data that
is stored in the cloud is protected. Mr. Covert went on to say that Americans
are only required to answer questions that relate to their admissibility back into
the country, such as verifying the validity of travel documents and ensuring
that no crimes are being committed.
In 2014, the Supreme Court decided that law enforcement need
to obtain a warrant before searching someone’s digital devices. The Court’s
line of reasoning was that cellphones are “not just another technological
convenience” and that they hold important private information that should be
protected. Homeland Security officials, however, claim that this decision does
not apply to searches at the border because the case in question did not deal
with that issue. Bipartisan legislation was introduced in April to attempt to
expand the protections that this Supreme Court decision provides. The
Protecting Data at the Border Act is co-sponsored by Sen. Ron Wyden (D-Ore.),
Sen. Rand Paul (R-Ken.), Rep. Jared Polis (D-Col.), and Rep. Blake Farenthold
(R-Tex.). This legislation, if passed, would require customs officers to have
warrants before searching electronics devices at borders which would, Mr.
Covert wrote, help to protect Americans’ rights at borders and airports.
About Barry N. Covert
Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.
This post does not purport to give legal advice and is for informational purposes only.