Paul Questioning Next DHS Nominee on Device Searches Doesn't Mean Others Will, Too
Senate Homeland Security Committee member Rand Paul, R-Ky., will pressure the next nominee to lead the Department of Homeland Security about border agents demanding passwords from travelers, including U.S. citizens, to search their phones and other personal electronic devices without a warrant, his office told us last week. Paul "remains very much concerned about this policy and will press the issue with any nominee," a spokesman said. Experts told us it's important for the committee to raise concerns about the policy with next candidate, after DHS Secretary John Kelly became White House chief of staff last week, but at least one expert wasn't hopeful other members would make it a high priority.
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"I think the DHS nominee is going to be asked questions about immigration, immigration and immigration," said homeland security consultant Paul Rosenzweig, calling Paul's concern an "outlier" now. Skeptical about the policy himself, Rosenzweig, former deputy assistant secretary-policy at DHS, said the senator "can make things miserable" on that issue, but "I have also no doubt that it is on the galactic scheme of DHS issues ... fairly far down the line." Patrick Eddington, Cato Institute homeland security and civil liberties policy analyst who also opposes the policy, speculated the item might be a high priority for several other senators. If not, he said, "it only takes one senator making a stand on something vis-a-vis must-pass legislation for it to get traction."
DHS policy requesting device passwords at the border began under the Obama administration, and civil society, journalists and others say the practice increased with President Donald Trump (see 1704050030, 1703170019 and 1702210007). In April, Paul and Sen. Ron Wyden, D-Ore., introduced S-823 (with the corresponding HR-1899) that would require a warrant with probable cause to search a U.S. person's devices. Customs and Border Protection said such searches increased in FY 2016 and are projected to rise this year (see 1704110051). At a recent Cato event, Paul called device searches of American citizens and green card holders "obscene," but it's an issue the public can win on.
Katie Fallow, senior staff attorney at the Knight First Amendment Institute at Columbia University, which sued DHS seeking information about searches of travelers' electronic devices in April, said the group hasn't received information on the extent of searches by CBP and Immigration and Customs Enforcement officials. Fallow, who expects any Trump nominee DHS would support the same policy, speculated the issue hasn't been a higher priority on Capitol Hill because lawmakers believe it's being used against people who aren't their constituents.
Elaine Duke became acting DHS secretary last week and Trump hasn't named a permanent successor. Experts speculated Kansas Secretary of State Kris Kobach and House Homeland Security Chairman Michael McCaul, R-Texas, could be named. "Trump will look for a loyalist, and someone who’s super hard-line on immigration," which doesn't describe Duke, said Eddington, a former adviser to Rep. Rush Holt, D-N.J. He speculated Kobach's nomination wouldn't fly, either, while Rosenzweig said McCaul would be a good choice. Eddington speculated the nominee will be a former state-level homeland security director.