
Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional - coloneltcb
https://www.aclu.org/press-releases/federal-court-rules-suspicionless-searches-travelers-phones-and-laptops
======
gorgoiler
I’m not sure to whom the reasonable suspicion has to be announced? It makes it
hard for me, a lay person, to understand the practical ramifications of this
decision.

Would the suspicion have to be announced to me, when I’m asked to unlock my
phone, or would it have to be presented to a court, when they are asked to
prosecute me based on the contents of my phone? If they find illegal content
on my phone, wouldn’t the prosecutor just tell the court “she matched a
profile for the sort of person that carries illegal documents”?

The latter is only meaningful if the case goes to court, which feels like a
stretch. There are many forms of punishment that can be meted out without
having to go to court. Vexatious detention, confiscation of property, etc.

The former seems silly — surely I can’t impede law enforcement because they
haven’t justified their authority to me?

~~~
landryraccoon
The point of the law is that even if law enforcement finds evidence of guilt
via illegal search, they cannot use that evidence in court. This is a crucial
protection for citizens. The point of the ruling isn't that it prevents the
search, it prevents the result of that search from being used against you. If
law enforcement wishes to establish the guilt of a suspect in court, it has to
use only evidence it obtained through legal means.

[https://dictionary.law.com/Default.aspx?selected=2087](https://dictionary.law.com/Default.aspx?selected=2087)

~~~
mark-r
Unfortunately there is still parallel construction:
[https://en.wikipedia.org/wiki/Parallel_construction](https://en.wikipedia.org/wiki/Parallel_construction)

Honest question: can illegally obtained evidence be used to get a search
warrant?

~~~
gamblor956
No, if a warrant is obtained using illegal evidence, then you poison the
warrant and all the evidence arising from it.

Parallel construction happens way less frequently than people think it does,
since it requires that there be an _actual_ parallel path to the evidence that
would have been available at the time the evidence was improperly obtained.
It's basically only upheld when evidence was collected improperly through one
means (i.e., a confession without Miranda disclosure), but could have been
collected properly through other means available at the time of the improper
collection (i.e., if the contents of the confession would have been revealed
by a standard CSI search).

~~~
taurath
I don’t think you have to be mirandized to give a confession, no?

~~~
nkrisc
Not a lawyer nor intimately familiar with the subject, so until someone more
knowledgeable chimes in and at risk of making a fool of myself:

I believe it depends on context. If you're in police custody and being
questioned, you need to be read your Miranda rights. If the police show up to
your door and you suddenly blurt out a confession, I don't think it matters.

~~~
gamblor956
That's mostly correct, but it gets even more contextual: if you confess right
when you greet the police, your confession is admissible.

However, once the police start asking questions, they have to show they had
not created a "custodial" situation in which the suspect was not free to leave
(or in this case, to close the door and tell the police to fuck off). In most
states, the burden is on the defendant to show that a custodial situation was
created; in some states, that is presumed and the police have to show that a
custodial situation was not created.

------
eyegor
Hopefully this stands (or gets challenged and reaffirmed in a higher court).
This is a tiny step in the right direction when it comes to the border search
exception, which has been upheld in the supreme court [1, 2]. Also commonly
known as the 100-mile constitution free zone [3].

[1] Almeida Sanchez vs United States

[2]
[https://en.wikipedia.org/wiki/Border_search_exception](https://en.wikipedia.org/wiki/Border_search_exception)

[3] [https://www.aclu.org/other/constitution-100-mile-border-
zone](https://www.aclu.org/other/constitution-100-mile-border-zone)

------
cies
So a govt agency does something illegal. To be honest, im not thrilled. They
seem to be acting against the laws they claim to uphold all the time.

Do they get punished? Are they put under extra monitoring now?

This is not a democracy people, this is not "trias politica". Police brutality
rampant, this merely being one more case. These court rulings seem rather
useless, when the same govt keeps illegal torture prisons (Guatanamo) open,
where people's lives are ruined without due process.

~~~
yqx
I didn't study law, but as far as I understand, illegal is not the right word
here. They (govt) do things for which there is no legal precedence all the
time. The court could also have found no problem with these searches. Now that
they did take issue with it if the searches would continue then yes, that
would be illegal.

~~~
t0ddbonzalez
"Evidence collected in breach of your constitutional rights" is probably a
better way of describing the situation.

------
ISL
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

Sounds like the Court got it right.

~~~
csours
I suspect you may know this, but there exist many locations and circumstances
wherein various rights are suspended.

[https://www.aclu.org/other/constitution-100-mile-border-
zone](https://www.aclu.org/other/constitution-100-mile-border-zone)

~~~
CharlesColeman
> I suspect you may know this, but there exist many locations and
> circumstances wherein various rights are suspended.

It sounds like this recent ruling may have rendered that page out of date.

From your link:

> According to the government, however, these basic constitutional principles
> do not apply fully at our borders. For example, at border crossings (also
> called "ports of entry"), federal authorities do not need a warrant _or even
> suspicion of wrongdoing_ to justify conducting what courts have called a
> "routine search," such as searching luggage or a vehicle.

From the OP:

> In a major victory for privacy rights, a federal court in Boston today ruled
> that _the government’s suspicionless searches_ of international travelers’
> smartphones and laptops at airports and other U.S. ports of entry _violate
> the Fourth Amendment_. The ruling came in a lawsuit, Alasaad v. McAleenan,
> filed by the American Civil Liberties Union, Electronic Frontier Foundation,
> and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and
> laptops were searched without individualized suspicion at U.S. ports of
> entry.

~~~
turc1656
" _It sounds like this recent ruling may have rendered that page out of date._
"

Not exactly. Here, the only change is related to digital devices being
searched. Everything else that happens at the border regarding searches is
unchanged. So the limitation of the 4th amendment is still largely unaltered.
But the protections have now been extended to digital devices only at border
searches.

The article doesn't go into it (maybe the actual USSC does?) but I assume the
logic here is that the reasoning behind the 4th amendment border search
exception in the first place is to monitor what's coming across the border in
terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't
really any concerns with digital devices. They are legal and anything done
with them that might be illegal isn't related to the device crossing the
border. And much of what can be done with them can also be done with any cheap
device purchased in the states or using a cloud service (in the modern era).
So randomly searching the devices doesn't really do much of anything related
to border protection.

~~~
cmurf
Ok so why do they do it? They're many examples. This one isn't even especially
good because this employee was protecting his employer's privacy rather than
his own.

[https://www.cnbc.com/2019/04/03/apple-employee-files-
complai...](https://www.cnbc.com/2019/04/03/apple-employee-files-complaint-
against-cbp-for-asking-to-unlock-phone.html)

------
tus88
But are travelers (foreigners) part of "the people"?

~~~
Finnucane
If you're on US soil you're subject to US law, including all provisions of the
Constitution. And the Constitution makes a distinction between 'citizens' and
'people' (i.e., everybody, including noncitizens)

~~~
hannasanarion
Aside from all the arguments brought up so far, there's that word
"unreasonable" which the courts have historically interpreted with an
"expectation of privacy" standard. You have a high expectation of privacy when
you're in your house, somewhat less when you're in a car, and much less when
you're entering an airport or crossing a border.

In the old days, it was routine for customs officers to search ships coming in
to harbor, including the effects of their passengers, to enforce importation
laws. If customs couldn't do this, then importation laws would have no teeth,
which is clearly not the intention of the constitution, which gives Congress
the explicit power to enact and enforce them.

CBP argues that their smartphone and laptop searches were just an extension of
that old custom, the court disagreed, ruling that a smartphone or laptop is
fundamentally different from a ship's log or traveler's trunk, such that a
higher expectation of privacy exists.

~~~
swiley
In the old days it was also routine for people to own eachother so I’m not
sure how much that really means.

~~~
hannasanarion
Yeah, and there was a constitutional amendment that changed that. There is no
constitutional amendment that removes the word "unreasonable" from the 4th.
CBP's argument is that these searches are reasonable, given the reduced
expectation of privacy.

------
CobrastanJorji
Slight correction: "suspicionless searches OF ELECTRONIC DEVICES."
Suspicionless searches of all air travelers is still very legal.

------
8bitsrule
Reasonable suspicion

[https://en.wikipedia.org/wiki/Reasonable_suspicion](https://en.wikipedia.org/wiki/Reasonable_suspicion)

>a legal standard of proof in United States law ... more than an "inchoate and
unparticularized suspicion or 'hunch'"; it must be based on "specific and
articulable facts", "taken together with rational inferences from those
facts", and the suspicion must be associated with the specific individual.

------
Fellshard
Open question, here: Doesn't this backfire and make TSA more likely to operate
on the basis of profiling alone? What makes a traveler suspect?

This reminds me of Sowell's distinction between 'Type I' and 'Type II'
discrimination: when all other information is forbidden from you, you'll end
up using the only information you have as your heuristic, however noisy and
biased that information might be compared to a more comprehensive source. This
leads to incidental systemic discrimination.

That said, if 'suspicionless' is tied to concrete external evidence rather
than mere profiling, this should be a good move.

~~~
umvi
Unpopular opinion: why is profiling bad in context of airplane security?

If 100% of airplane terrorist attacks are carried out by people of X country
(Xians), and 0% of airplane terrorist attacks are carried out by people from Y
country (Yians), it seems like a pointless charade of political correctness to
check Xians and Yians with equal frequency.

I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of
Yians.

~~~
knodi123
> why is profiling bad in context of airplane security?

Why is airplane security different than other contexts?

> 100% of airplane terrorist attacks are carried out by people of X country
> (Xians), and 0% of airplane terrorist attacks are carried out by people from
> Y country

That's not the real world. There have been white terrorists, christian
terrorists, etc. There have been muslim terrorists from most countries.
Sometimes they don't look culturally muslim at a glance - maybe we should
bring back Fumi-e?

[https://en.wikipedia.org/wiki/Fumi-e](https://en.wikipedia.org/wiki/Fumi-e)

> I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of
> Yians.

As an islamic terrorist, you just gave me a fantastic idea about how to beat
your security. I won't go into detail, don't want to make it too easy in case
some other terror group also figures out how to look like a WASP.

~~~
umvi
> Why is airplane security different than other contexts?

Because hundreds of lives are at stake, unlike (most) other contexts like
screening college applications or work visa applications.

> That's not the real world. There have been white terrorists, christian
> terrorists, etc.

Are you saying terrorists happen at equal frequencies across all demographics?
There have been Christian terrorists, yes, but those strike me as _exceedingly
rare_ compared to Muslim terrorists, for example.

Why would you ever stop and frisk a family? Has a terrorist attack ever been
carried out by a couple with children in the history of the world? Or even
just gender profiling - how many terrorist attacks are carried out by women
vs. men? Men should be scrutinized _much_ more frequently than women; it's
simple statistics.

~~~
namdnay
> There have been Christian terrorists, yes, but those strike me as
> exceedingly rare compared to Muslim terrorists

In the USA??? I think the opposite is true. How many terrorist attacks have
you had on US soil this year, and how many of the perpetrators identified as
Christian vs Muslim?

~~~
stevenwoo
Almost all of the abortion clinic bombers and shooters are self proclaimed
Christians in the USA, as are most white supremacists - responsible for many
attacks on synagogues in the USA including the recent Pittsburgh shooting.
Also, Timothy McVeigh was targeting the large number of African Americans he
saw working or in childcare at OKC federal building to try to start a "race
war".

------
luckydata
It was always CLEARLY unconstitutional. It's worrying it took so long to have
it declared as such.

~~~
ngngngng
As an American I'm very confused why clear constitutional violations don't
warrant any repercussions on the perpetrating individuals.

So I work for a company that deals with medical data, if I violate HIPAA, I
don't get to just keep doing it until a federal court says stop and then walk
away as if nothing happened. I'm personally held responsible for those
violations. Not just my company, me.

Why aren't each of these agents that obviously and egregiously violated the
constitution subject to imprisonment or fines for each violation?

~~~
1123581321
The Constitution does not specify punishments for violating it. Congress could
pass legislation specifying punishments in accordance with this ruling, but it
would not be retroactive.

~~~
wnoise
They did: 42 USC 1983. (
[https://www.law.cornell.edu/uscode/text/42/1983](https://www.law.cornell.edu/uscode/text/42/1983)
). It technically only applies to actions by state by state (or local)
officials, not federal, though SCOTUS created an equivalent for federal
actions known as Bivens (
[https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag...](https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents)
). However, SCOTUS has also limited both with the doctrine of qualified
immunity. (
[https://en.wikipedia.org/wiki/Qualified_immunity](https://en.wikipedia.org/wiki/Qualified_immunity)
)

~~~
1123581321
Interesting. Thank you.

------
brailsafe
I've usually been fine crossing into the US via Canada as a Canadian, save for
some cursory searches. However I don't stand out visibly or audibly. On my
second last trip through, I didn't have a precise address that I was staying
at on the other side of the country for a road trip, so I was taken aside.
While waiting, I talked to a Canadian-German fella who had been molested for
upwards of 4 hours on the basis of validating that he wasn't intending to work
in the U.S. Apparently they handed him a brochure that effectively said they
can do anything they want with his data and so on upon that suspicion.
Likewise, my gf made what I thought was a joke that at least we weren't brown
or something. At least, I thought it was a joke until I looked at the line up
behind us.

------
aerovistae
Yeah, too bad the border control agents basically do what they want and this
case means nothing.

They'll do the same thing, and someone will say "But what about Alasaad v.
McAleenan?" and in the small windowless holding room the agent will say "What
about it? You want to leave, unlock your phone."

~~~
landryraccoon
Evidence from an illegal search cannot be used in court.

[https://dictionary.law.com/Default.aspx?selected=2087](https://dictionary.law.com/Default.aspx?selected=2087)

~~~
vkou
If a border agent is giving me shit, the last thing I'm worried about is
whether or not any evidence they gather is going to be used against me in
court.

99.9% of the time, the most negative outcome of this kind of interaction will
be losing my stuff, being arrested and held for anywhere up to 24 hours, or
being denied entry. For most people, these are a compelling enough reasons to
comply with a power-tripping border agent. Despite this ruling, your recourse
in such a situation will remain quite limited.

~~~
dsfyu404ed
The metric the agent's boss's boss's boss cares about is convictions because
that's how they justify their budget "look at all these criminals we're
catching". If they can't use the illegal searches in order to convict people
of crimes they're much less likely to spend the man hours doing them as
routine procedure.

Also, it's not exactly hard for a lawyer to argue that you were coerced into
consenting to a search in your hypothetical example. Since the people crossing
the border are mostly non-criminals if CPB does use those tactics routinely it
will not take long at all for a suitably politically sympathetic victim to
come along and precedent to be established saying that is also not ok.

~~~
nikanj
Alas, a metric they just don’t care about is passenger feelings. The power
tripping is real, and most people would consider being detained for hours to
be a big issue, even if it never even goes to court.

------
badrequest
Kudos to the ACLU and the EFF for standing up for what is right.

------
compiler-guy
I support this ruling very strongly, and am super-glad it went the way it did.

But at the same time, if it were as obvious as just quoting the constituion,
it wouldn't have made it to the Supreme Court in the first place. The SC
decides cases that are difficult, not cases that are easy.

Again, I believe this is the right decision, but it was no layup.

~~~
michaelmrose
Your argument is poorly formed this was an extremely obvious case of reading
the plain language of the law as already quoted. Which court it arrived in
isn't proof positive of the complexity of the law. Its proof of how irrational
and diseased our system of government is.

Perhaps you would like to advance an actual argument insofar as abusing access
to portable computing devices to virtually riffle through an individuals
entire life without benefit of court or even articulable suspicion? This is an
intrusion into an individuals privacy worse than anything the framers could
have imagined justified only a by a right to search that exists to discover
contraband THINGS not contraband thoughts.

Lest we forgot Texas had to have the supreme court tell them that they
couldn't outlaw gay sex not that long ago.

~~~
hannasanarion
It is "obvious" only if you ignore centuries of customs practice and the word
"reasonable" in the text. The 4th amendment protection from searches is not
absolute.

~~~
michaelmrose
Searching a digital device and further remote databases it has access to is
more akin to going to the persons home and riffling through all their papers
and interrogating their friends and family than it is to a traditional customs
search.

It's reasonable to search for harmful or illegal materials entering the
country. You have a compelling interest in the safety of the citizens and this
is likely your one chance to reasonably interdict them before they can cause
harm to the citizenry.

No such special circumstance exist for information. Information flows freely
and securely over most of the world and interdicting it at the border is
laughable. Once you leave behind existing powers and arguments for same you
are left making an argument for new powers undreamt of by the founders.

You can argue for example that being able to access all the private words and
documents of travelers allows you to make better decisions as far as whom and
what ought to be interdicted or examined. This might even be a compelling
argument for you. It is however not a continuation of centuries of practice
but rather entirely new power that ought to be enumerated in new laws if it is
to be granted.

If we insist that we react to the changing landscape provided by technology
solely by interpreting what 18th century individuals wrote we ought to
interpret very conservatively insofar as grants of government power. If such
new powers are needed let the peoples representatives write the required laws.

------
theandrewbailey
OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist;
please unlock your phone"? Their actions have effectively said that for almost
20 years.

~~~
JumpCrisscross
> _what stops the TSA /DHS from saying "We suspect you are a terrorist; please
> unlock your phone"?_

The same thing that stops all tyranny. A vigilant and engaged citizen body.

Practically, this means donating to the ACLU and related groups. It also
means, if you’re party to injustice, suing or reaching out to organisation who
can help you sue to assert our rights.

~~~
thisisnico
Do these suspicions require some sort of preliminary-evidence of those
suspicions before acted upon?

~~~
abathur
Edit: Oops. Fixed a use of "probable cause" where I meant "reasonable
suspicion".

IANAL, but my rough impression from the opinion is _kinda_. It seems like the
reasonable suspicion can emerge entirely from the interaction itself, but that
it should be based facts/reasons the agent(s) can articulate.

I found the section titled "7\. Reasonable Suspicion, not Probable Cause,
Applies to Both Such Searches" on pages 33-38 of the actual opinion (embedded
on [https://www.aclu.org/legal-document/alasaad-v-mcaleenan-
opin...](https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opinion-
summary-judgment)) provided good background on this.

~~~
abathur
Later on page 46 there's a more succinct statement.

The judge is evaluating one element of the relief the plaintiffs sought--that
the agencies be required to expunge data copied during a search which, per the
ruling, is unconstitutional. More specifically, the judge is addressing one
stated reason for seeking that relief--concern that data obtained
unconstitutionally will leave them forever flagged for extra scrutiny.

> "in the future, whether information has been retained from prior searches or
> not, agents must be able to point to specific and articulable facts for
> reasonable suspicion to believe that Plaintiffs’ electronic devices contain
> contraband, which also addresses the concern about any likelihood, greater
> than the general public of U.S. citizens returning to the U.S. borders, of
> being subject to a non-cursory search."

------
notjesse
And that is why I donate to ACLU every month.

------
Havoc
A tiny bit of sanity returns to the US borders.

Think I'll give it a miss for now though. The entire border crew seems like a
law onto themselves.

e.g. last time - got hassled about being a dual citizen (neither US). But then
while standing in a queue for a metal detector (as per agent instructions)
another agent pulls me out of the queue and says I don't need to do this go
around there. Rest of epic long queue proceeds towards detector/search as if
nothing happened...just me.

Very much doubt there is any rhyme or reason behind what's happening at the
borders beyond massive power trips.

------
dontbenebby
IANAL, so can someone help me understand: How is this the final say if it's
out of a court in Boston? Isn't that only one circuit?

~~~
kickopotomus
It is not necessarily the final say. DHS may turn around and challenge the
ruling which may then be picked up by the Court of Appeals for further review.
However, the Court of Appeals does not have to review the case and even if
they did, they very well may agree with the ruling from the district court.

~~~
dontbenebby
So as a practical matter, is it likely border officials will honor the ruling?

~~~
mrandish
As with virtually all govt authority figures whose 'authoritah' gets
constrained by pesky constitutional 'noise', they will adopt the minimal
appearance of compliance that their dept lawyers estimate they can get away
with. I wish I was kidding.

It's definitely a good ruling to have on the books but it could very well just
end up being a checkbox matter to have a pretense of "suspicion" (ie "this
person appeared nervous").

Depending on the jurisdiction of this district court the DHS might even decide
that it doesn't apply outside that jurisdiction until a higher court rules on
it.

~~~
cinquemb
Well, I'll be more tempted to fly into logan, at least for now…

But yeah, all hangs on what is "suspicion" (or what passes for it in
practice), compared to say a targeted op or warrant provided by a court (even
if its one of those secret courts like FISA).

------
BurnGpuBurn
They'll probably now resort to kindly asking to view the contents of your
phone and laptop, and when you don't give it to them, they'll take that as the
"reasonable suspicion" they need to force you.

The courts decided good, but in practice it wont matter at all.

------
akersten
Does this apply to the "special Constitution zone" that intrudes 100 miles
inland from the US border? Doesn't matter if it's constitutional or not if
you're in a no-constitution zone.

~~~
dragonwriter
> Does this apply to the "special Constitution zone" that intrudes 100 miles
> inland from the US border?

This is specifically about border searches, so, insofar as such a zone exists
(the description is hyperbolic and more useful for motivating activism that
any kind of analytical application), yes.

> Doesn't matter if it's constitutional or not if you're in a no-constitution
> zone.

There is no such thing. There is an executive-asserted 100 mile zone (statute
only says a reasonable distance, and AFAIK courts have not ruled on actual
boundaries) from the border in which federal officials can conduct warrantless
searches of vehicles to identify people without legal permission to be in the
country.

~~~
akersten
> There is no such thing.

No, you admit there is such a thing, you just call it something differently.
We're clearly talking about the same thing, whatever we choose to call it, it
exists.

What you call "executive asserted zone in which [the constitutional protection
against unreasonable searches and seizures does not apply]", I call a "no
Constitution zone". It's clearer.

As far as activism goes, the way I see it: we can either use plain language to
convey a pretty good approximation of the situation, and help people
understand the crazy state of people's rights at the border, or dress it up in
business language like a government-sanctioned PR release and lose a
listener's interest immediately.

Someone probably learned about the zone from this very thread, which wouldn't
exist had I not been provocative. And is it really provocative to point out
that something's not right?

~~~
dragonwriter
> What you call "executive asserted zone in which [the constitutional
> protection against unreasonable searches and seizures does not apply]”

The editorial insertion is not correct, and is the source of the problem.
Neither the statute (which is ambiguous as to exact geographic extent) nor the
executive interpretation asserts the inapplicability of the Constitutional
protection against unreasonable searches within the zone, it authorizes an
extremely narrow category of _warrantless_ searches (the courts have
consistently held that warrantless searches can be reasonable, and that
statutory authorization for a sufficiently narrow and appropriate purpose is a
significant factor in favor of finding a warrantless search reasonable; there
is no serious debate over whether what the statute seeks to authorize is
Constitutionally appropriate and within some geographic boundaries, the entire
debate, after you get past the hyperbolic posturing, is over two questions:
whether 100 miles is more than is reasonable, and whether the failure of the
statute to explicitly say a reasonable boundary impermissibly delegates the
boundary-setting to the executive.)

> As far as activism goes, the way I see it: we can either use plain language
> to convey a pretty good approximation of the situation

It's not a good approximation of the situation, as taking it as even an
approximation suggests things like your upthread misapprehension that it would
be germane to a search of data on devices rather than a search of _vehicles_
for _unauthorized immigrants_.

Look, I agree with what the ACLU is seeking to acheive with it's hyperbolic
portrayal and even think that most uses that the ACLU makes of that portrayal
are warranted for that purpose (and I think both that 100 air miles is too
great a distance and the failure of Congress to set explicit boundaries makes
the statute unreasonable.) But it's not even remotely a good approximation of
the actual situation, except perhaps in the narrow context of discussion
narrowly focussed on immigration enforcement.

------
SamuelAdams
> the government’s suspicionless searches of international travelers’
> smartphones and laptops at airports and other U.S. ports of entry violate
> the Fourth Amendment

So, does this not apply to people flying domestically?

~~~
dreamcompiler
No. TSA doesn't search smartphones and laptops, and the searches they do apply
to everybody. When you search everybody equally, courts have ruled it's not a
4th amendment violation. See drunk driving checkpoints.

------
abathur
IANAL, but I'm reading the opinion itself and I've found it pretty accessible
so far.

If you find this issue interesting, you may find reading at least part of it
rewarding. The ACLU has a PDF embedded on this page:
[https://www.aclu.org/legal-document/alasaad-v-mcaleenan-
opin...](https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opinion-
summary-judgment)

Sections B-E (pages 14-47) are the most useful.

------
theodric
Looks like TSA/Customs is about to get a lot more suspicious. All of these
travellers, without exception, look shifty as hell.

------
gist
> A border officer searched plaintiff Zainab Merchant’s phone, despite her
> informing the officer that it contained privileged attorney-client
> communications.

(The following (what I say) does not mean to imply that I don't agree with the
ruling:)

I don't get why this is a factor at all or even relevant. In particular the
'despite her informing the officer'. Why would the officer be in a position to
determine a) If the plaintiff is even an attorney to begin with b) If the
plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to
only make a comparison) in order to prevent the phone from being searched
because it might in fact contain contraband? Very convenient, right? Why in
particular would the lawyers rights (because they are an attorney) be greater
than any ordinary individual? Further why would it matter if an officer saw
the attorney client information to begin with? The assumption is that anything
they (the officer) sees would have to be kept private no matter what it was.
Lastly could someone (a business person) then assert that there was material
non public information on the phone and that as a reason to not search it? The
point is if they did see it the officer could (in theory) trade on that
information. Where does this stop?

------
cmurf
They can image my mobile device in, what, 5 minutes? Why hold it for days or
weeks except as a form of coercion? You land and need your phone to retrieve
the phone number for friends or family, to order rides, create and manage
accommodations, and find directions. Taking someone's mobile device leaves
them stranded.

~~~
neilalexander
They can only image your device if they can connect to it. I don't know what
Android is like in this regard, but an iPhone won't open up the USB interface
to a foreign device until it has been unlocked and the device has been trusted
by entering the passcode, which keeps some power in your hands.

If they just take the device off you, your power is taken away in a different
way, but it's still taken away from you.

~~~
cmurf
I'm not an expert. From what I can tell on my phone, USB interface isn't
available unless developer options are first enabled, and then USB debugging
is enabled, and the phone is unlocked, and then once an initiate USB
connection is made the user needs to acknowledge the host USB trying to make a
connection which requires the phone is unlocked to see and acknowledge the
request.

So, offhand I'm not sure to what additional degree a user is at risk if they
have developer options and USB debugging enabled, if they're also unwilling to
hand over their unlock code. Obviously if neither debugging nor developer
options are enabled, they can be trivially enabled once the unlock code is
entered.

------
t0ddbonzalez
Solution: Go through border control with blank phone/laptop and restore from
backup later.

~~~
cmurf
Is this what the EFF, ACLU, etc. actually recommend these days? Or do they
want regular Joe Citizen to be willing to subject themselves to duress by
customs?

If most people erase their devices, it's a kind of giving up. Accepting data
loss (hopefully temporarily, but not everything is stored in the cloud, e.g.
SMS messages, at least in Android phones with the original texting app) is
punative. And disproportionate. And resets are a PITA for non-technical
people. As a work around to avoid being harassed, to me it proves we've lost
the privacy fight.

~~~
t0ddbonzalez
I don’t speak for the EFF or ACLU so ¯\\_(ツ)_/¯

Speaking of disproportionate...I think it’s disproportionate to surrender my
phone to DHS/ICE for unwarranted inspection in order to enter the country.

------
ComputerGuru
This is a US District Court ruling; I think it's safe to say it's going to be
appealed and find its way to the USMC. It's hard to imagine the executive
branch of the federal government giving up all that power.

------
RiOuseR
We didn't need a court to tell us the obvious, but this is nice to hear.

------
duxup
Constitutional aspect aside, it seems like such a pointless / resource waste
of an activity. It seems highly unlikely to dig up much of any value.

------
coldcode
Good. Also given there is no one running Homeland Security I wonder if it's
even likely that this will be pushed to the SC.

~~~
1MoreThing
Don't confuse the lack of a Senate-approved director with a lack of someone in
power at a government agency. There are very much people running the
Department of Homeland Security.

------
Tomminn
Next stop, how about letting a foreigner visit the US for a week without
having their fingerprints taken.

~~~
forgotmypass9
How about letting foreigners change airplanes without treating them like they
plan to visit or be illegal immigrants? Canada, UK, I'm looking at you guys
too.

Last time I changed airplanes in Canada: "How long do you plan to stay in
Canada?" "Well my flight leaves in three hours." "Are you bringing any nuts or
fruit in to Canada?"

------
AdmiralAsshat
So will the CBP be ordered to destroy all the images they made of devices
searched at the border?

~~~
vilhelm_s
No.

> As part of the relief sought, Plaintiffs seek expungement of all information
> gathered from, or copies made of, the contents of Plaintiffs’ electronic
> devices including social media information and device passwords. [...]
> Although this is not a criminal case, considering the remedy for the
> unconstitutional search in the criminal context is illustrative of the
> extraordinary nature of the remedy sought here. Even where law enforcement
> officers have conducted a search in violation of the Constitution, the
> “fruits of [the] search need not be suppressed if the agents acted with the
> objectively reasonable belief that their actions did not violate the Fourth
> Amendment.” [...] even where criminal proceedings followed a border search
> that exceeded the bounds of the Fourth Amendment and the fruits of same were
> suppressed, expungement of the border agents’ files would not necessarily
> follow. Nor should it where other deterrents to border agents’
> unconstitutional searches remain in place. [...] In light of this other
> relief, including declaratory relief, the Court DENIES the request for
> expungement of information

[https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.h...](https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2Ffield_document%2Falasaad_opinion_summary_judgment.pdf)

------
devin
Forgive my ignorance, but will this change anything at the border in the
immediate term?

------
kong75
How are they going to determine whether they have "reasonable suspicion"?

------
SN76477
The the authoritarians will simply move the goal post of what is suspicious.

------
annoyingnoob
There is hope for the US, hard to believe with the current state of affairs.

~~~
sneak
They let the border pigs keep all of the illegally and coercively stolen
private information from the thousands or millions of phones they've already
imaged (under the basis of "it was believed to be legal at the time"), so not
really.

Third-party doctrine lets them silently access your emails and IMs and texts
at rest, and Section 702 as well as creative definitions of "access" let them
sniff them all in transit. Privacy from the fed snoops is 100% an illusion;
the entire population is under continuous realtime monitoring.

This border search thing is an important but ultimately minor victory; total
surveillance is the name of the game in the United States now, and likely will
remain so until the country no longer exists.

Strong encryption is the only defense we have against mass surveillance, but
sadly most people don't care enough about their own privacy (much less that of
others - the classic "What do you have to hide?") to demand it in
communications products and services, so the majority of personal networked
communications happens in ways that are extremely simple for the corrupt
federal government to collect, analyze, and permanently store.

~~~
annoyingnoob
I think you are preaching to the choir a bit, given the HN audience. I suspect
that the continuous realtime monitoring that is done by private corporations
is as bad or worse. Maybe you don't win the war all at once but one battle at
a time.

~~~
sneak
> _I suspect that the continuous realtime monitoring that is done by private
> corporations is as bad or worse._

On the whole, governments have run a lot more prisons, forced labor camps, and
concentration camps than private corporations have.

I am not worried about the collection of the data. I am worried about what it
will be used for in ten, fifteen, twenty years’ time.

------
jeffdavis
This is a District court. A nice victory, but hardly "major".

------
bsimpson
It makes me really sad that it took a court case to decide this.

~~~
waterheater
Drafting a law would be worse. Smartphones have only been around for 12 years,
so no good law could have been passed because we did not fully understand how
the smartphone would shake out.

It took time because society needed to reckon with the newfound implications
brought by such profound technological shifts.

Freedom doesn't come from a drive-thru window. You have to wait at the table
until the issue has cooked.

------
cgb223
What constitutes “reasonable suspicion” in this case?

~~~
sjs382
[https://en.wikipedia.org/wiki/Reasonable_suspicion](https://en.wikipedia.org/wiki/Reasonable_suspicion)

------
rwmj
Does "travellers" include non-US citizens?

~~~
kova12
I'm not a lawyer, but afaik the Constitution protects equally citizens and not
citizens

~~~
BrainInAJar
Should've gone with your first instinct. They cannot _arrest you_ for not
unlocking your phone, but you will be denied entry, forever.

------
classified
Everyone knew that before and it didn't stop anybody. It won't stop now
either. Violating the Constitution with impunity has become standard.

------
gigatexal
Good to see common sense prevailing

------
mlang23
Best thing is to just not have anything to do with the US of A. Death penalty,
loaded guns everywhere, a general attitude of being the masters of the world
which leads to things like suspicionless searches. No, thanks. I think the
best would be if more people would actually stop dealing with the USA. Its
becoming a trend. I once turned down an invitation to a conference in Hawai,
and guess what, I was not alone.

~~~
bluGill
Death penalty exists, but it is rare.

Loaded guns exist, but they are not common. Most of them are in the hands of
well trained people who are harmless unless (in the unlikely event) that
deadly force is the only way they can get out of the situations.

The US has its problems, but you have been listening to propaganda by anti US
forces (you might want to figure out who they are and what their agenda is!)
if you think either of the above issues are worth a worry.

~~~
ubermonkey
I'm a US citizen. Most of his points are valid.

Guns fucking everywhere is a problem. Lots of Americans think so. Yes, we
absolutely execute people -- and our criminal justice system is a completely
sham, especially if you're not white and rich.

Oh, and God save you from our health care economics.

If I weren't American, I'd absolutely never come here. In fact, I _am_
American, and I'm actively researching ways to establish residency elsewhere.

~~~
jopsen
Is it really that bad though. We like painting a negative picture, because we
want the US to improve.

But on the human freedom index the US is ranked 17 alongside Sweden.

The US has problems, systemic and cultural problems that should be fixed. But
your risk of getting shot in a mass shooting is low.

~~~
ubermonkey
"But your risk of getting shot in a mass shooting is low. "

But absurdly HIGHER than say, in Sweden. And most gun violence isn't mass
shootings.

Plus, there's the ever-present specter of medical bankruptcy.

~~~
jopsen
Yes, but overall the risk of getting shot is still low. So it being 10x higher
isn't that bad.

I didn't say the US doesn't have issues, just that looking at the whole
picture -- and comparing with other countries, it's not that horrible.

In Sweden economic opportunities are slightly fewer. Not that it really
matters, if you live in modern Western country you're doing pretty well.

------
MaupitiBlue
Haven't read the opinion, but I'd anticipate that this will be reversed on
appeal. My guess is that this was either an Obama or Clinton judge.

Both my Crim Pro and Con Law professors skipped border search cases and summed
them up with "you have no rights at the border." That's been the common law
since King Tut.

~~~
ars
[https://en.wikipedia.org/wiki/Denise_J._Casper](https://en.wikipedia.org/wiki/Denise_J._Casper)
Obama Judge.

But you should realize you are basically saying Judges are not impartial
arbiters, but rather biased based on who appointed them.

~~~
MaupitiBlue
Not quite. I’m saying that liberal judges tend to ignore the law when it comes
to highly political issues.

For example, how many opinions have you read from Ginsburg where she says “I
personally disagree with this outcome, but the law is clear.”? Quite rarely.

~~~
larkost
I would argue that this is not really a "liberal" thing. Up until the 1970's
the courts (including the Supreme Court) regularly found that the right to
bear arms was in the context of establishing a militia, and not really a
personal right. They consistently citied the "A well regulated Militia" part.
The law was clear.

Nowadays Supreme Court president effectively ignores the militia part, and has
created a personal right mostly out of whole cloth. So 200 years of president
out the window, mostly for a political issue.

~~~
homonculus1
That interpretation is farcical and was rightly overturned. How can a right be
held by the collective if it is not protected for the individual? Are we to
believe that individual journalists may be hauled off to jail without
violating the freedom of "the press"?

Collective rights are held by the States. "The people" are individuals and the
prefatory militia clause is not a limit.

~~~
iron0013
The founders included that clause for a reason.

~~~
homonculus1
The Supreme Court opinion in DC v. Heller explains why that clause was
included:

>The Second Amendment is naturally divided into two parts: its prefatory
clause and its operative clause. The former does not limit the latter
grammatically, but rather announces a purpose. The Amendment could be
rephrased, “Because a well regulated Militia is necessary to the security of a
free State, the right of the people to keep and bear Arms shall not be
infringed.”

[https://supreme.justia.com/cases/federal/us/554/570/#tab-
opi...](https://supreme.justia.com/cases/federal/us/554/570/#tab-
opinion-1962738)

~~~
iron0013
And to think that Scalia considered himself an originalist! I guess that only
applied when it was convenient to him :/

~~~
homonculus1
This is originalism as clearly supported by the numerous references to
contemporary language, other writings of the authors, and comparison to other
language in the Constitution. Have you read the opinion?

