
EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border - DiabloD3
https://www.eff.org/press/releases/eff-aclu-media-conference-call-today-announce-lawsuit-over-warrantless-phone-and
======
ironix
I'm going on a trip to Canada within the next month, from the US, as a US
citizen.

I want to be let into Canada without issue, so am taking a burner smartphone
connected to a non-critical gmail account that is plausibly-maybe my "real"
personal one. But not really. The maximum threat to me is detention, or more
likely, refused entry. If I am asked to unlock the device, I will.

Crossing back into the US, I am less concerned. If I am asked to unlock the
device, I will NOT. The maximum threat to me is semi-indefinite detention, and
I know at the end of it, I can reach out to the EFF to seek representation in
a larger action.

Does anyone else have any tips/tricks/ideas here? I realize trying to subvert
any Canadian border search is not a good idea, but it's a good middle-grounds
vs. "don't go to Canada" or "give them all your private data", I think. On the
other hand, I am willing to be more stringent with the US border because (A) I
am a citizen, I cannot be refused entry, and (B) this is a cause I would like
to participate in, so invite any negative outcome caused by my refusal to
unlock the device or share any logins.

~~~
iamatworknow
>Does anyone else have any tips/tricks/ideas here?

The trick is to not worry about it so much. In fact, I'd say that worrying and
looking nervous would make it _more_ likely that you would be searched.

I live on the US/Canadian border (on the US side) and go over probably 2 or 3
times per month. I regularly drive from New York state to Ottawa (going
through Canadian customs), then fly into the US (through US customs) and then
back again through Canada (Canadian customs again) driving home to the US (US
customs again) with no problems. It's closer than the nearest commercial
airport to me in the US and even with the customs delay, much more convenient.
I also just go over to have fun in Ottawa and Montreal regularly.

My vehicle has been searched 3 times in probably 6 years. My phone has always
stayed with me, in my pocket, un-searched.

I have only ever personally heard of one case of someone having their
electronics searched, and the extent of the search was Canadian customs using
the Windows search to look for files with "boy" or "girl" in the filename --
presumably looking for child porn.

To be clear, I'm not saying this doesn't ever happen, or that it will 100%
never happen to you, but the chances are very, very slim that they'll even ask
you more than a few questions, let alone do any sort of search. Your mileage
may vary, of course.

~~~
iamatworknow
To perhaps back my point up even further, look at the link that the EFF posted
showing CBP's data:

[https://www.cbp.gov/newsroom/national-media-release/cbp-
rele...](https://www.cbp.gov/newsroom/national-media-release/cbp-releases-
statistics-electronic-device-searches-0)

189,594,422 people processed at the US border between October 2016 and March
2017 with 14,993 electronics searches.

0.008% of people processed had electronics searched.

~~~
Canada
That would mean that in all of the ports of entry to the United States only 82
phones per day were searched. That's absolutely ridiculous. There are
approximately that many international airports. Just airports. Nevermind the
enormous flow of land traffic with Canada and Mexico or all sea traffic.

[https://en.wikipedia.org/wiki/List_of_international_airports...](https://en.wikipedia.org/wiki/List_of_international_airports_by_country#United_States)

CBP is claiming that they searched, on average, less than one phone per day in
each airport? Give me a break.

Their claim is probably the number of times they've done some kind of deep
analysis with forensic tools. Surely the number of times a border guard
casually looked through emails and texts is far higher.

~~~
snowwrestler
EDIT: I'll leave my comment below up for the record, but I'm probably wrong,
and Canada above is probably right. CBP is not clear about what kind of
"searches" they are counting in these stats, and they could well be only
counting forensic searches, not cursory (the quick scroll through).

\---------

That number sounds reasonable to me. CBP has no reason to hide their
activities because they believe they are faithfully enforcing the law.

Electronic searches are not something agents do casually; federal agents do
very few things casually on the clock. They're far too busy.

Typically it has to be either a decision in advance (targeting a specific
person) or a big set of warning signals at once that create a suspicious
profile.

I could be wrong about this; I don't have personal experience. But I've
discussed these sorts of cases with friends who are federal agents and
prosecutors.

~~~
Borealid
There is something I don't understand about this whole debate: why is it
considered a "search" of a phone when data is decrypted or exfiltrated?

If one "searches" a safe, and finds inside a paper with some random characters
on it, the safe has been searched. The paper was there, it was discovered, the
interior of the safe was viewed. The meaning of the characters may not be
understood, but the safe was searched.

If one "searches" a phone, and finds inside some random pattern of bits, why
is the search "not completed" until the bits are deciphered into something the
agent understands?

It seems to me that the act of searching doesn't imply understanding what was
found, yet for some reason all the public discourse - including legal
analysis! - is predicated on the idea that "searching" a phone means
deciphering its digital contents.

------
greymeister
The US extends the border-search exception to anywhere within 100 miles of an
airport with international fights, meaning something like 60% of the US lives
within a "border zone" as most international airports are close to dense
population centers.

~~~
djrogers
This is tangential, and I'm sure you didn't mean to, but you've come close to
implying that a CBP agent can stop, search, and detain _anyone_ within 100
miles of an International airport. That's not the case, it would have to be
someone who actually crossed the border in to the USA.

That said, and I can' believe I have to make this disclaimer as it feels about
as obvious as saying I'm against torturing kittens, but I am against the
overreaching searches the EFF and ACLU are suing over here.

~~~
tbrownaw
_it would have to be someone who actually crossed the border_

... And if they want to detain you, who gets to decide whether that happened?

~~~
lovich
It's fine they just have to check your papers real quick. Also, never question
if they can do that unless you want to be arrested for resisting arrest

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aey
Donate to the eff. They will send you an awesome hoodie.

~~~
abtinf
A few years ago, I considered starting regular donations to the EFF.
Unfortunately, I did not realize they had taken pro position on state
intervention and control of the Internet, a concept generally described with
the orwellian phrase "net neutrality." This position directly contradicts much
of the their advocacy that I wanted to support.

~~~
natch
I am glad you commented, so that others could rebut your misguided position.

It's not usually kosher to comment on voting here, but I think in this case
it's worth making an exception to help keep you readable: I un-did my downvote
of you because I hope that others who, out of innocent ignorance perhaps,
currently share your position, will be able to read your comment (I don't want
you to go to full invisibility) and then read and consider the responses to
it.

I would advise anyone who agrees with this guy (abtinf) to really think it
through a bit. The "regulation is bad therefore ALL regulation is bad" trap is
easy to fall into. Even if you are a strict libertarian, net neutrality is a
case where regulation is stopping really bad things from happening, and,
though it sounds paradoxical, enabling MORE freedom, not less.

~~~
nunyabuizness
> net neutrality is a case where regulation is stopping really bad things from
> happening

I'm fairly anti-regulation and I from what I understand, net neutrality is a
(federal) regulatory solution to a problem created by explicitly by (state +
local) regulation.

I honestly don't understand why people think that net neutrality is a better
solution than a (currently non-existant) federal policy to remove state and
local regulations that created ISP oligopolies which limited internet freedom
in the first place.

~~~
literallycancer
You don't have regulation forcing companies to share infrastructure with
competitors in the US? Like the electrical grid or water pipes?

Building things from scratch to compete with an established competitor at that
scale is nearly impossible, you'd never see any new players entering the
market if they had to build a new grid.

Why is net neutrality different?

>I honestly don't understand why people think that net neutrality is a better
solution than a (currently non-existant) federal policy to remove state and
local regulations that created ISP oligopolies which limited internet freedom
in the first place.

You'd have to break up the oligopolies first, right?

------
rdiddly
I wish I could thank these guys with big hugs but instead I'll probably have
to settle for donating.

~~~
StavrosK
No reason why you can't do both!

------
derefr
Interesting question to me: is any country offering easy-to-attain diplomatic-
courier status, such that I could (legitimately) label my laptop bag as a
diplomatic pouch to protect it from search?

(Yes, it's more complex than this; you'd have to be able to upload a manifest
of what's in the bag and what it weighs to some service of that country's
government, and then the country's embassy here would forward the manifest to
the State Dept and they'd send you a sticker for your bag, etc.)

~~~
azernik
No. This would be in direct contravention of the Vienna Protocols [1] that
define a diplomatic pouch and its protections. You are not allowed to stuff
your personal shit in a diplomatic courier pouch, and any country openly and
intentionally allowing the abuse of the Vienna Protocols for these purposes
would be in very hot water internationally. Like, international-incident,
embassies-expelled hot water.

[1] Article 27 Section 4: "The packages constituting the diplomatic bag must
bear visible external marks of their character and may contain only diplomatic
documents or articles intended for official use."

~~~
derefr
It's still not clear to me that e.g. the Queen of England couldn't travel
around with her shopping list in a diplomatic pouch. A country's government
gets to decide for itself what is and isn't for its "official use", no? So if
a country says your laptop contains materials intended for their official use,
then it _does_. It's just a matter of you being important enough for them to
be willing to make that claim on your behalf.

~~~
azernik
And as soon as they get caught, the countries so offended against will call
that (rightfully) a flagrant _lie_. The treaties were written specifically to
_prevent_ such a use of diplomatic privilege. That adjective "official" in the
Convention is literally meaningless if a country is allowed to claim anything
is "official", and trust me, treaty writers do not insert any words without a
reason.

------
basseq
I hope this one goes to the Supreme Court, as that's the only place this will
be resolved. Otherwise, U.S. Criminal Law is clear: searches and seizures at
the border are exempt from requirements for warrants or probable cause.

Multiple circuit courts have upheld the Government's right to do this, and
that this right extends to electronic files and information. Only the Ninth
has disagreed ( _United States v. Cotterman_ ).

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wallace_f
Isn't the US Constitution the highest law in the US? The Fourth clearly states
people should be secure from search or seizure of their personal effects and
papers, which obviously extends to electronic devices.

So my question is, shouldn't there be extroardinary consequences for breaking
laws such as these?

Why does it appear so easy for government to get away with this? Is it a
really bad thing thay constitutional rights are being easily trampeled on? It
seems like a bad deal to me.

~~~
int_19h
4A says "secure in their persons, houses, papers, and effects, against
_unreasonable_ searches and seizures".

The exact definition of "unreasonable" is subject to interpretation by the
executive agencies and the courts. Search at the border for the purposes of
detecting contraband has been considered reasonable from the moment
Constitution was in force. Right now, we're finding just how far this can be
stretched.

~~~
wallace_f
>Search at the border for the purposes of detecting contraband has been
considered reasonable from the moment Constitution was in force.

Is this really true, though? Would you be able to provide a sourced example of
this -- Searching a person's personal effects and papers at the border,
ideally in a case that went to the courts?

~~~
int_19h
It is generally assumed to follow from the fact that the United States Customs
Service was established back in 1789, and its duties, from the very beginning,
involved dealing with contraband.

I poked around a bit, and while the first SCOTUS decision addressing this head
on seems to be from 1977, it goes into more detail:

"That searches made at the border, pursuant to the longstanding right of the
sovereign to protect itself by stopping and examining persons and property
crossing into this country, are reasonable simply by virtue of the fact that
they occur at the border, should, by now, require no extended demonstration.
The Congress which proposed the Bill of Rights, including the Fourth
Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had,
some two months prior to that proposal, enacted the first customs statute, Act
of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs
officials "full power and authority" to enter and search "any ship or vessel,
in which they shall have reason to suspect any goods, wares or merchandise
subject to duty shall be concealed . . . ." This acknowledgment of plenary
customs power was differentiated from the more limited power to enter and
search "any particular dwelling-house, store, building, or other place . . ."
where a warrant upon "cause to suspect" was required. The historical
importance of the enactment of this customs statute by the same Congress which
proposed the Fourth Amendment is, we think, manifest. This Court so concluded
almost a century ago. In Boyd v. United States, 116 U. S. 616, 623 (1886),
this Court observed:

"The seizure of stolen goods is authorized by the common law; and the seizure
of goods forfeited for a breach of the revenue laws, or concealed to avoid the
duties payable on them, has been authorized by English statutes for at least
two centuries past; and the like seizures have been authorized by our own
revenue acts from the commencement of the government. The first statute passed
by Congress to regulate the collection of duties, the act of July 31, 1789, 1
Stat. 29, 43, contains provisions to this effect. As this act was passed by
the same Congress which proposed for adoption the original amendments to the
Constitution, it is clear that the members of that body did not regard
searches and seizures of this kind as `unreasonable,' and they are not
embraced within the prohibition of the amendment."

([https://scholar.google.com/scholar_case?case=610713613239826...](https://scholar.google.com/scholar_case?case=6107136132398268257))

~~~
gsnedders
This provides a justification for customs to carry out searches, but very few
countries undertake customs checks on departing passengers.

What about searches at security, be it by the TSA or otherwise? They're
obviously very different (you can always opt-out and travel by another means),
but I suppose one can both argue that they're a) reasonable and b) justified
by contractual means (i.e., a requirement to pass through security before
boarding).

~~~
int_19h
TSA searches for air travellers are not done under the border search
exception. They instead claim something called "administrative exception".
It's a much more tenuous construct: it's basically saying that the search is
reasonable, because "the primary goal is not to determine whether any
passenger has committed a crime but rather to protect the public from a
terrorist attack" \- which is a valid and important public interest - and
because the means used are the least intrusive that are necessary to secure
that interest (are you laughing already?).

Here's some more on this.
[http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=16...](http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1683&context=wmborj)

------
meri_dian
If they can search your bags without a warrant at the border, why can't they
search your phone or laptop?

Edit: Contraband can be both physical and digital. If the government can
conduct searches for physical contraband then searches for digital contraband
in certain circumstances like border crossings seems reasonable.

~~~
martinflack
Your phone / laptop is now digitally connected to everything in your life.

Giving access of that over to a government agent is like handing them a diary
of everything you ever thought, a list of everyone you ever met, a record of
everywhere you ever went, a list of every book you've ever read, a list of
every medication you've ever taken, a list of every game you've ever played, a
list of every off-color joke you've ever cracked with friends, etc.

Would you hand that over on paper?

~~~
derefr
Another thing that contains all those same things is "your brain." It's harder
to get the facts out of it, but those TSA interview rooms represent an
attempt. If that is allowed, then I don't see what's better/worse about
searching your digital exobrain instead. Either way, you're handing over "you"
on a silver platter.

~~~
adekok
Answer one: speed

Assuming you have perfect recall, and answer all of their questions
truthfully, it will still take time for them to troll through all of your
memories and actions.

They can do the same with a telephone / laptop in minutes.

Answer two: perfect recall

You _can 't_ recall everything perfectly, and you _don 't_ write everything
down. So after a while, they won't have anything to go on. "What did you do in
Thailand last Wednesday?" ... "I dunno, I got drunk with my friends?"

Versus "we searched your phone and you took pictures last Wednesday of someone
who looks underage. Please turn around for the handcuffs".

In general, I have _everything_ to hide from state actors with near-infinite
resources, zero accountability, a deep understanding of the law (i.e. how to
get you for almost anything), and their own personal agenda to push.

They should need to prove to me why they need to look at my stuff.

~~~
macintux
You can plead the 5th. Your phone cannot.

~~~
tonyztan
Exactly. All the more reason to make sure the 4th is upheld.

------
tonyztan
Dupe:
[https://news.ycombinator.com/item?id=15240700](https://news.ycombinator.com/item?id=15240700)

Edit: Saw the downvotes, so just wanted to note that the linked post was
submitted before this one, and hence this comment. Not that it matters. :)

~~~
tonyztan
To clarify, I meant to say that this thread (id=15240781) is a dupe of the one
I linked to (id=15240700). HN marked the wrong dupe! :)

