
EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border - Cbasedlifeform
https://www.eff.org/press/releases/eff-aclu-media-conference-call-today-announce-lawsuit-over-warrantless-phone-and
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ScottBurson
The distinction I would suggest is that CBP should have the power to search
the effects of entering travelers looking for _physical_ contraband; so, for
instance, to examine a laptop and cell phone to make sure they're not fakes
full of cocaine or fentanyl or something. They should have no jurisdiction
over _information_. They don't get to examine all the bits coming into the
country over the Internet, and we certainly don't want to give them that
power!

The idea that the CBP can make a meaningful difference to the security of this
country by searching the informational effects of .1% of incoming travelers,
when there's I-don't-know-how-many gigabits/sec of connectivity to other
countries that anyone in the US can use by firing up their smartphone, is
ludicrous on its face. The idea that they can accurately select the .1% of
travelers that might be carrying evidence of a crime just by looking at them
is equally ludicrous.

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tonyztan
The proposed "Protecting Data at the Border Act" makes the distinction between
physical vs. digital examination that you mention.

[https://www.congress.gov/115/bills/s823/BILLS-115s823is.pdf](https://www.congress.gov/115/bills/s823/BILLS-115s823is.pdf)

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ScottBurson
Aha, so it does! The corresponding House bill is HR 1899.

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makecheck
Airport searches should be limited to what might cause a _transportation
security_ issue. Nothing on a mobile device qualifies, especially since in-
flight wifi provides a way to download anything to the device in flight that
is not present when checked at Security.

Regular border searches should have no right to look at devices at all, since
there is no plane or train to endanger and there are _even more_ ways to beam
over data after you cross the physical border.

The entire thing just stinks of intimidation tactics, subjecting people to
personal invasions with, yet again, no measurable improvement to actual
security.

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kinkrtyavimoodh
For general TSA searches, you are correct, but border security is not about
ensuring the safe transportation of the person crossing the border, so I am
not sure how your framework makes sense.

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alreadyhere
Surely the passport is a sufficient signal. Chances are if you have a fake
one, you aren't likely to keep incriminating data on your phne, like your
actual facebook profile.

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takeda
outofatacos wrote:

> I haven't traveled abroad in a couple years, so I'm not sure exactly how
> this works, but I would be unable to contain my laughter if some CBP cop
> asked me to unlock my phone or laptop. Is this something that actually
> happens nowadays? Why on earth would anyone ever consent to this nonsense?

For some reason this comment is dead and it is a valid question IMO.

For people who don't know, if you don't have a citizenship they actually might
deny your entry if you won't cooperate.

If you do, they can't refuse you entering the US, but they can confiscate your
electronics.

Doesn't seem right, that's why EFF and ACLU is suing.

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rothbardrand
> confiscate

Steal. Confiscation without a warrant is theft. With a warrant they may be
able to search, but failing to return within 48 hours is also theft.

Alas, the government steals so much in so many different ways, and runs
schools indoctrinating children in "patriotism" that its hard for people to
see these things anymore.

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robin_reala
But only for people who are US citizens, or at least permanent residents. It’s
not making visiting the US any more appealing to the rest of the world.

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johncolanduoni
If they can’t establish a better situation for US citizens, there’s no way
they could ever generalize it. Seems like a sound tactic on the ACLU/EFFs part
to me.

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mtgx
Indeed. But he's right to point that out.

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jordigh
Can someone offer a simple explanation of why the EFF and ACLU might succeed?

I remember seeing big signs at US border crossings that said YOU HAVE NO
RIGHTS in big allcaps, and I think the law is mostly on their side. Those
signs are probably still there.

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freeone3000
What law says they have no rights? That seems to supercede the constitution,
which can't be done. Constitution needs to be interpreted in this case.

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jordigh
The argument I've heard is that the constitution only applies to people who
are in the US and her citizens. At a border crossing you're not in the US, and
if you're not a US citizen, then I think you literally have no rights.

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valuearb
That argument is wrong, the constitution not only applies to US citizens while
they are out of the US, but it also applies to people who aren't US citizens.

"No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive ANY
PERSON of life, liberty or property, without due process of law; nor deny to
ANY PERSON within its jurisdiction the equal protection of the laws"

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CWuestefeld
I agree that your statement is morally and logically correct.

But from a legal perspective, it's quite false. SCOTUS has said that the
government's need to ensure security at the border leads to a different
balance of rights versus authority when you're near the border. (you should
also ignore the fact that these rules put 2/3 of the US population "near the
border" and thus having weakened protection over their rights)

We can yell all we want about the clear meaning of the Constitution, but that
doesn't stop the government from confiscating our stuff and throwing us in
jail.

For what it's worth.... There's a statement attributed to Abraham Lincoln,
"The Constitution is not a suicide pact", which is taken to mean that we
shouldn't be so dogmatic about the Constitution as to let it destroy us. I
think the words of this statement are correct, but everyone interprets them
backwards. It's not a warning, it's an affirmation. As Americans, we should be
confident that our Constitution is not something that can harm us if taken too
literally. It's not a pretty idea, a luxury that becomes dangerous if indulged
in too much. Rather, the Constitution is, indeed, our strength.

We should have confidence that things like the free market of ideas that our
freedom of speech creates, or that ready militia made up of all able adults
who exercise the right to bear arms can defend us from invaders or errant
government. I believe that our freedoms are not luxuries that we should forgo
when the government decides there's sufficient danger: it's holding fast to
them that will deliver us from danger.

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tmnvix
I happened to catch a few minutes of one of those border/customs reality shows
a couple of weeks ago. A young German couple were trying to enter the US from
Canada as tourists. They had very little in the way of funds and claimed that
they planned on sleeping in their van while travelling.

The official at the border asked them if they planned on working. They both
said "no". He asked them again but warned them that their computers and phones
had been searched. Again they said "no". The official then showed them
correspondence that showed they were expected at a farm were they were
expected to work as wwoofers.

They were denied entry.

Personally I don't agree that their correspondence should have been checked in
the first case but I can see that this is an example of how this type of
privacy invasion might be argued for by government.

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Joking_Phantom
Does anyone know of a case where a search of electronic material beyond
physical inspection actually resulted in any illegal materials?

I don't doubt that our current body of legislation and judicial precedents
make this practice legal, but I honestly can't see this policy actually doing
anything.

The classic case of illegal electronic information would be child pornography
- but who would be stupid enough to bring it with them to the border for
consumption or for trafficking, when the Internet exists? If they were to
bring it to the border, what's to stop them from encrypting it not divulging
the key?

Beyond C.P., I can imagine certain trade secrets being illegal, like Samuel
Slater back in the day. But that was to the benefit of America, and the
British were right to suspect him due to his position giving him the
capability to leak information that was held secret by state laws. American
analogues obviously enforce the unwanted disclosure of state secrets and such
based on identities and institutions prior to crossing the border - which
makes what the CBP are doing redundant at best.

Terrorists do not need anything outside of this country to operate. We've seen
domestic and foreign terrorists alike build their bombs with legal sources of
information and material.

IMO, what happened was a power hungry busy body official in the CBP
spearheaded this policy. Just another case of crappy people in crappy
politics, making crappy solutions to nonexistent problems. It is fortunate
that the rest of humanity will be reasonable enough to revert such egregious
and useless wastes of resources.

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KGIII
Top link, quite recent, thousands of results:

[http://dailycaller.com/2017/08/17/handful-of-refugees-
caught...](http://dailycaller.com/2017/08/17/handful-of-refugees-caught-
bringing-child-porn-across-ny-quebec-border/)

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Joking_Phantom
Thank you for the reply, but these are refugees crossing into Canada. Not
American citizens entering the United States. I don't see thousands of results
either.

A quick google search revealed absolutely nothing fruitful - 3 articles about
the refugees seeking asylum in Canada being deported after CP discovery, 1
American citizen charged with CP found in his residence, 1 American citizen
charged by a Saskatchewan provincial court, and 1 former Border Patrol agent
caught as part of a Texan initiative that counters crimes against children.

Not a single example comes to mind of an American citizen entering or leaving
with illegal electronic information. If these searches were actually doing
anything useful, I'm sure an organized effort to promote its success would've
been underway.

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

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adventist
It would seem to me that the Federal Government is in charge of the border,
and that until you are actually in the United States, you have no reasonable
expectation of the Bill of Rights. There are many things that need to get
checked at the border. Maybe they could just have a judge there to stamp each
request as it goes through.

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wallace_f
I have my whole life on my phone and laptop. Most of the details and
particularly _papers_ , as stated in the 4th, of my life are contained there.
I also need my devices to function and keep up like a normal person in 2017,
and to keep a job.

So if I need to leave the country and come back, and must bring them, I just
forfeited my expectation of privacy guaranteed by the bill of rights?

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dsp1234
_I should no longer have any expectation of privacy_

The above poster suggests even worse.

"until you are actually in the United States, you have no reasonable
expectation of the Bill of Rights.". They suggest you have _no_ constitutional
rights outside of the US border. Forget your cell phone, this would imply that
black bag operations are completely legal as long as the US citizen is outside
of US borders at the time.

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794CD01
No, it implies that they are not illegal, and I would agree. That doesn't
necessarily mean they are legal - they are alegal since US law does not apply
outside its borders. Just like there doesn't need to be a US law making it
legal for you to hire a prostitute in the Netherlands or gamble in an Indian
reservation.

Admittedly, that argument is not very convincing for the US in particular so
pretend we are talking about some other country that is not the self-appointed
world police.

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dragonwriter
> US law does not apply outside its borders.

Except for laws which expressly include territorial limits (the phrase,
“within the special maritime and territorial jurisdiction of the United
States” occurs as a limitation in several US criminal laws, for example) US
laws absolutely do apply outisde of US borders.

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JudasGoat
I only make around 20k and I donate $5 monthly to both the EFF and ACLU. I
never notice it missing out of my account. Does anyone now of a third
organization worthy of support. Not to brag, but I could probably swing $15 a
month.

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KGIII
With ACLU, you can also donate to your local chapter.

I'm also rather fond of Heifer International.

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outoftacos
I haven't traveled abroad in a couple years, so I'm not sure exactly how this
works, but I would be unable to contain my laughter if some CBP cop asked me
to unlock my phone or laptop. Is this something that actually happens
nowadays? Why on earth would anyone ever consent to this nonsense?

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crispyambulance
I, and almost anyone else, would consent to it for the sake of getting on the
flight. Yeah, I don't like it either. It doesn't happen a lot, but when it
does I imagine these outcomes:

1) Handover unlocked device, let CBP knuckle-dragger browse through it, in
front of me, until they're bored and they hand it back. Get on flight. This is
the best case scenario.

2) Handover unlocked device, CPB knucke-dragger takes it to back room where he
may or may not download all contents and store it, enabling NSA to play seven-
degrees-of-keven-bacon, Osama-edition, forever. That's the worst scenario, but
very unlikely that anything comes of that.

3) Laugh at CBP knuckle-dragger, keep phone locked, miss flight, go to airport
detention for an indeterminate amount of time until I give in and handover
unlocked phone, be subject to scrutiny and "commentary" from CBP official, and
maybe, get put on a list somewhere which will cause this to happen every time
I fly.

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mikeash
If you are a US citizen entering the US (don't try this if you're a green card
holder or a visitor), then in the case of (3), they can't hold you
indefinitely, although they can hold your phone indefinitely.

This has never happened to me, and it probably never will, but if it does my
plan is to refuse to unlock the phone and wait it out.

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crispyambulance
I used the term "indefinitely" too loosely. I should have said "far longer
than most people are willing tolerate for the sake of making a point."

But OK, staying locked is a fine thing to do but most people would want to get
on with their lives.

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dang
Url changed from [https://www.nakedcapitalism.com/2017/09/electronic-
frontier-...](https://www.nakedcapitalism.com/2017/09/electronic-frontier-
foundation-aclu-sue-warrantless-phone-laptop-searches-us-border.html), which
points to this.

