
DHS Asserting Unconstitutional Authority to Search Travelers’ Phones and Laptops - panarky
https://www.eff.org/press/releases/new-documents-reveal-dhs-asserting-broad-unconstitutional-authority-search-travelers
======
rayiner
Whether this is "unconstitutional" is, of course, a hotly contested legal
issue. While EFF asserts that the "border is not a lawless place" the fact is
that border searches are where personal property rights and the right of a
sovereign to police its borders intersect, and the former has historically
given way to the latter. One of the very first things Congress did in 1789 was
create customs enforcement, empowered to conduct warrantless searches for
contraband or dutiable goods.

What the EFF's motion for summary judgment actually does is ask the court to
extend _Riley_. There, the Supreme Court held that a search of electronic data
on a phone was a fourth amendment violation, even where a search was otherwise
permissible without a warrant because it was a search incident to arrest. The
idea was that an electronic search did not serve the purposes of a search
incident to arrest, which focuses more on ensuring officer safety. A more
honest reporting of the article therefore would be "EFF asks court to extend
the reasoning of the Supreme Court's recent decision in _Riley_ to hold that
the Fourth Amendment protects travelers from searches of electronic data on
phones and laptops when such searches are not reasonably related to the
purposes of finding contraband and dutiable goods." But that wouldn't bring in
all the donor dollars!

I think the EFF actually has a good argument. Possibly the correct argument,
at least taking _Riley_ as a given. But man do I hate the press release. (Of
course, the EFF's legal filing omits the crap.)

~~~
jdsully
Although stored data can be contraband and the court may not see it as
different from a drug search. I think it’s unlikely we’ll see this succeed but
I’m hopeful.

~~~
chii
How can data possibly be contraband? Data is data - it is neutral.

~~~
istjohn
Stolen classified material, data used to commit/coordinate criminal activity,
child pornography off the top of my head.

~~~
clubm8
> Stolen classified material, data used to commit/coordinate criminal
> activity, child pornography off the top of my head.

Conversely, data could be attorney client privileged, HIPPA protected, or
classified. Many situations would require a traveler _not_ disclose their
encryption password.

The government is free to examine these devices, have fingers pressed to
keypads, but IMHO they are _not_ free to compel disclosure of the password.

------
zensavona
I am an Australian national who lives overseas and recently I was going
through the airport going into Australia to visit. Turns out we have something
similar going on, but backed by law and without constitutional protection.

I was told to hand over the passwords for my laptop and phone, lest they seize
them "until they can be opened" (see: forever). This was a mind-bending
experience for me and I was further interrogated since apparently I must have
"something to hide" if I don't want to hand over passwords to my devices to
just any person who works in an airport. They even started asking me things
like "What are you doing in Australia?", "Who are you visiting?", "Where are
you going?" (I am a citizen, it's absolutely no business of "Border Force" who
I visit or where I go) and when I was abrasive about those questions they even
asked "Have you been in trouble with the law in Australia?"

At the end I did ask what the reason was for them searching me, their answer
was simply that they don't need to have suspicion of anything specific.

~~~
RyJones
If you want extra attention all over the world, keep your clothes in Pelican
cases. Customs always thinks I'm bringing something in - just my clothes,
thanks, take a look.

~~~
m463
I imagine they don't x-ray well. Also, you probably get all kinds of attention
from theives - they would expect camera equipment, not clothes.

Of course, it would all lead to memorable international travel experiences!

~~~
sneak
They’re just plastic. They x-ray just fine.

~~~
m463
I was thinking of the aluminum ridged cases. Maybe I'm confusing it with
another manufaturer.

~~~
sneak
Those are called Rimowa, and they also x-ray fine. :)

------
JohnFen
Years ago, when this sort of thing started to become common, I decided I
couldn't afford the risk involved in having important electronics subjected to
this sort of search. By "risk", I don't really mean disclosure of data
(although that, too), but the risk of having the device seized or damaged.

My solution was to stop carrying these devices when I travel. I ship them
ahead to my destination through a parcel service, and carry a burner phone
(for emergencies) during my actual trip.

~~~
anarazel
I fail to see how that actually reduces risks. Mail/Packages across
international borders are routinely searched without warrant. It's
_explicitly_ allowed by law:
[https://www.law.cornell.edu/uscode/text/19/1583](https://www.law.cornell.edu/uscode/text/19/1583)

"For purposes of ensuring compliance with the Customs laws of the United
States and other laws enforced by the Customs Service, including the
provisions of law described in paragraph (2), a Customs officer may, subject
to the provisions of this section, stop and search at the border, _without a
search warrant_ , mail of domestic origin transmitted for export by the United
States Postal Service and foreign mail transiting the United States that is
being imported or exported by the United States Postal Service."

And I think most other countries have similar rules.

And depending on what kind of parcel service you use, you'd not even have
protections against warrant-less searches in US domestic context. I'm not
remembering the details, but IIRC only First-Class type mail / parcels are
protected. Most packages aren't.

~~~
JohnFen
The risk is reduced in two ways -- first, a smaller percentage of such
packages are actually searched. In practice, the searching happens if there's
something overtly suspicious about the package, or if you happen to already be
of interest to authorities. If any of my packages have ever been searched, it
was done well enough that I didn't notice.

Second, should my devices get damaged then the parcel carrier is on the hook
to make me good.

~~~
saagarjha
Plus there's no (or very little) risk of the courier service employing rubber-
hose cryptanalysis.

~~~
bpchaps
Do you have any proof of this?

~~~
yellowapple
FedEx is awful, but not "hunt me down wherever I'm at, kidnap me, and beat me
until I type in a passphrase for a laptop I shipped via Next Day Air" awful.

------
benmarks
Reminder to fellow travelers: disable biometric-based device access when
crossing the US border. It may not prevent your stuff from being cloned, but
it may matter down the road as more case law is established.

~~~
pardner
If I use an electronic boarding pass, I temporarily make that my wallpaper so
it is usable at the gate without unlocking my phone.

~~~
sneak
Or just print a paper one when you arrive at the airport. You can check in
online in app, and still reprint at a kiosk on arrival.

The idea of handing my phone to an agent of the government without physical
compulsion is abhorrent to me, and is something I hope to never engage in. For
this reason, mobile boarding passes are a non-starter. (see also: wireless
keyboards)

------
supernova87a
I think the course of this is that much like the border separation policy,
they want the circuits to disagree on the interpretation, and the Supreme
Court to get involved. Of course, "someone" could pass a law to clarify the
issue.

