
ACLU: Border Agents Violate Constitution When They Search Electronic Devices - hsnewman
https://www.npr.org/2019/05/02/719337356/aclu-border-agents-violate-constitution-when-they-search-electronic-devices
======
SolaceQuantum
Alright so I'm actually pretty confused here- I was under the impression that
the constitutional protections of all citizens have been suspended 100 miles
from all borders including airports in the united states. Therefore violating
constitutional rights is in fact perfectly legal. Is this incorrect? (I might
have just been exposed to so many ways my rights have been suspended that I no
longer know what rights I can even legally defend anymore.)

~~~
rayiner
You’re under that impression because the ACLU did some very dishonest
reporting about that subject. (I’m an ACLU member, it’s a fantastic
organization. But it’s marketing people have a questionable commitment to
educating the public truthfully.)

The “100 mile” regulation involves the scope of CBP patrol authority:
[https://constitutioncenter.org/blog/does-a-constitution-
free...](https://constitutioncenter.org/blog/does-a-constitution-free-zone-
really-exist-in-america).

The law, 8 USC 1357, says that CBP agents have the power to patrol and search
“a reasonable distance from the border” to prevent entry of illegal aliens.

First, calling that a “Constitution-free zone” is rhetoric, not fact. 8 USC
1357 only refers to the CBP’s power to patrol and search, not other
Constitutional protections. And while there can be reasonable disagreement
about where the line should be, clearly there must be some distance within the
US where the CBP must be able to patrol and search without a warrant. The
border is an infinitely thin line. CBP can’t patrol foreign territory. It
necessarily must patrol US territory some distance inward from the actual
border.

The “100 mile” regulation was an _upper limit_ on what “reasonable distance”
could be. The actual regulation requires the CBP to define “reasonable
distance” based on geography, where border crossings are, etc. The idea is
that checkpoints must be at the “functional equivalent of the border.” In the
middle of the desert or the Alaska tundra, the checkpoint might reasonably not
be exactly at the geographic border. But in no event can it be more than 100
miles from the geographic border.

So all those graphics of how many people live within 100 miles of the border
were very misleading. New York City is not within the extended border, even
though it’s within 100 miles of the border, and CBP has never claimed
otherwise.

~~~
jMyles
> clearly there must be some distance within the US where the CBP must be able
> to patrol and search.

An alternative is to not have a CBP that is part of the Homeland Security
apparatus and which does not patrol at all, and only conducts searches at
specified border crossings and only based on suspicion of smuggling.

This was the configuration of things from 1789 until 2003.

~~~
rayiner
Any border crossing checkpoint is necessarily not at the actual border (which
is mathematically impossible). And it’s absolutely incorrect to claim that
historically we only patrolled the border to prevent smuggling. The border
patrol was established in 1924. Federal immigration officers have been around
since 1891. Exercise of the authority of the US to expel aliens for national
security purposes dates to the founding era.

~~~
jMyles
> Any border crossing checkpoint is necessarily not at the actual border
> (which is mathematically impossible).

Sure. To the degree that we still want borders (and I think it's a decreasing
degree as time moves forward), this will remain true.

> And it’s absolutely incorrect to claim that historically we only patrolled
> the border to prevent smuggling.

Yeah? My understanding of the history of the US Customs Service is that it was
a revenue generating agency and not a law enforcement arm.

Did it conduct widespread police-style patrols like those we have today? I
feel reasonably confident that the answer is "no", but this is not my primary
area of historical study.

> The border patrol was established in 1924.

But again, compare it to CBP today. It was what, a few hundred men on
horseback in the desert? At least that's my understanding. Around WW2 it
ramped up to a couple thousand, but it still wasn't an established,
militarized police force comparable to today's CBP.

> Exercise of the authority of the US to expel aliens for national security
> purposes dates to the founding era.

But the Alien and Sedition Act (for example) is nearly universally regarded as
a shameful period in the early history of the country. It's certainly not
something to point to as a precedent of this being done well.

~~~
rayiner
> Sure. To the degree that we still want borders (and I think it's a
> decreasing degree as time moves forward), this will remain true.

I suspect you and I disagree quite strongly on that point. Borders are really
important (and the U.S. would probably be better with more borders and
internal political separation, not less).

> But the Alien and Sedition Act (for example) is nearly universally regarded
> as a shameful period in the early history of the country. It's certainly not
> something to point to as a precedent of this being done well.

Maybe, but they give a pretty good idea of what the founders thought about the
constitutional scope of the federal government's power over the borders.

~~~
nkurz
> (and the U.S. would probably be better with more borders and internal
> political separation, not less)

Could you expand on this?

~~~
rayiner
Concrete example. I am a Marylander. We recently decided to raise the minimum
wage to $15. Over the river in Virginia, it's just $7.25. Even if Marylanders
are willing to shoulder higher prices in order to get a higher minimum wage,
we can't make that decision in isolation. We have to worry about businesses
crossing the border into Virginia and--because the Constitution prohibits
internal tariffs--still being able to freely sell to Maryland customers.

Or, consider guns. Most Marylanders support gun control. But Virginians love
guns. We have no border so whatever gun laws we make are easily circumvented.

Likewise, we signed up for ACA expansion (extending Medicaid to poor adults)
when it was first offered. Virginia didn't get around to doing it until many
years later, and even then put in various additional requirements. If we were
a country and controlled our own politics (and we could be--we're bigger than
Norway, Denmark, or Finland) we'd have universal healthcare. Instead, we have
to accept whatever we can get after compromising with Alabama, Mississippi,
etc.

Borders enable self determination. When you’re a political unit and you
control your borders, you can have your own laws and own institutions. When
you tear down borders, you eliminate the ability of smaller political units to
control the flow of goods, capital, and people. But those things must be
regulated. So there is pressure to push power up to higher level political
units to regulate those things. And in the process that pushes politics and
political accountability further away from the people. And because it expands
the polity, it forces compromises among people with different values and
priorities.

A concrete example is guns. Idaho has lots of guns (57% of people own a gun).
It also has low homicide rates (lower than Belgium). But because of the lack
of internal borders, there is little ability to have different gun laws in
different places. So there is a huge push to regulate guns at the federal
level. So people in Idaho have to fight federal legislation that is proposed
because people in Chicago are shooting each other with guns streaming over the
border from Indiana.

You’re seeing that happen in Europe right now. The EU started by tearing down
trade borders. But once you do that, you needed EU-wide rules for regulating
the economy. That pushed more power to the EU, and now you’ve got bureaucrats
in Brussels who can override popular law in Sweden.

------
mikece
I have heard of security researchers setting up their laptops such that the
default boot option will take you to a pretty vanilla-looking Ubuntu install
with office apps and the like but when they reboot to do real work they log
into a hardened Debian (or equivalent) install on an encrypted volume that
even tech savvy CBP agents would have a hard time recognizing existed. This is
great for a laptop... I wish there were cell phones that had an option like
this. Perhaps the Librem 5 could support this at some point?

~~~
roywiggins
Problem is, if this catches on, CBP will just start asking whether you've got
any encrypted volumes. If you say no, you're guilty of lying to a federal law
enforcement officer. If you refuse to answer they'll take that to mean _yes_ ,
and they'll look a lot harder.

~~~
logfromblammo
The legally correct answer to that question is "I do not consent to searches
or seizures, and do not answer questions without my legal counsel present".
But the practically correct answer is "I don't understand your question." or,
more succinctly: "What?"

No matter how much it catches on, there will still be people who have no idea
what it is, and even if they have it, someone else may have set it up for them
so they wouldn't need to know. Even if someone can prove you did understand
the literal meaning of the question, you can always plausibly argue that you
didn't understand why it was being asked in relation to the questioner's
official investigative authority.

~~~
roywiggins
Of course, you have plenty of defenses, including "I forgot about it". But the
existence of a defense doesn't mean you want to have to argue it in court, and
_intentionally dissembling and /or obfuscating to a border agent_ is way, way
down on my to-do list.

> you can always plausibly argue that you didn't understand why it was being
> asked in relation to the questioner's official investigative authority.

I don't think this is a defense. If it is a defense, they'll just preface the
question with, "In order to safeguard national security, I need to know if you
have any hidden accounts on here that aren't readily visible. Are there any?"
Federal agents don't have to warn people that they might be prosecuted for
lying. Also, if you lie to a border agent and you are anything other than a US
citizen, that can be grounds to revoke your visa and ban you from the country.

> Although you must know that your statement is false at the time you make it
> in order to be guilty of this crime, you do not have to know that lying to
> the government is a crime or even that the matter you are lying about is
> "within the jurisdiction" of a government agency. For example, if you lie to
> your employer on your time and attendance records and, unbeknownst to you,
> he submits your records, along with those of other employees, to the federal
> government pursuant to some regulatory duty, you could be criminally liable.

[https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-
to-...](https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-Jail-
under-18-U-S-C-Section-1001-for-Lying-to-Government-Agents.shtml)

~~~
logfromblammo
All this points to putting a stop to all this bullshit politically.

Border agents are overstepping their granted authority when inspecting the
data contents of an information-storage device, so I'd argue that if you lie
to them as they are doing it, they are no longer acting in their capacity as a
federal agent. Probably not an argument that a federal judge would agree with,
but I can have my own non-lawyerly opinions on it. As it is also my opinion
that if you keep a law on the books making it illegal to lie to federal
agents, you must also have a law on the books saying that it is illegal for
any federal agent to retaliate against or administratively punish any person
for failing to answer questions. So, as an ancestor post mentioned, when the
likely effect of a non-answer is to draw additional attention, that's clearly
unfair to the traveler and their right against self-incrimination.

All that is beyond the ken of the people actually interacting at the borders,
so the only solution is to order their boss's boss's boss to write a memo, to
pass down the chain of command, saying, "Stop doing this. It is not allowed."

As it is now, the executive will continue to do as it pleases, without regard
to folks rationally debating legality on the internet, and neither the
judiciary nor the legislature is likely to bother to check it. So the only
reliable short-term solution is to not carry such devices across the border at
all. When the cops are stupid and cruel, following the law is not a defense.
Appeasing them is not a defense. Fighting them is not a defense. There is no
defense wherever they can still operate under the guise of legitimate
authority. As a traveler, you are completely powerless. And that is unfair,
and not something I am willing to tolerate from the US feds. But they don't
exactly pay much attention to me with respect to such things--it's okay to
step on nobodies; only the people with money matter to them now.

------
sandworm101
I'm reminded of the wikileaks associate who arrived at JFK and was detained.
The police were screaming mad about him not unlocking his electronic devices.
Problem: he didn't bring any electronic devices. If you have to cross into the
US, encrypt everything using something like Truecrypt and stash it online.
Read a book on the plane.

~~~
jMyles
Is there a problem with dm_crypt?

I can't afford to lose work time every time I fly internationally.

~~~
maze-le
No, but when you refuse to unlock it, it could mean that the device is
confiscated indefinitely. Where an encrypted container, delivered over a
cloud-storage provider is not immediately tied to you at the border.

~~~
jMyles
> but when you refuse to unlock it, it could mean that the device is
> confiscated indefinitely

Has that actually happened in the case of a device belonging to a person
legally authorized to enter the USA? That's rough.

In any case, I typically travel with a wiped (but backed up) phone and an
encrypted (but backed up) laptop.

One thing I haven't fully figured out is how to manage travel photography -
it's not easy to back up tens of gigs remotely, so I usually just end up
traveling with it encrypted on my laptop hard drive but not otherwise backed
up.

~~~
mLuby
On the photography side, you could either upload each day from
hotel/coffeeshop wifi or put it on an SD card (which could be searched and
confiscated).

~~~
estebank
A good practice for safe guarding pictures taken over holidays in case of any
number of events is to mail yourself sd cards with a copy of the pictures. You
would still want a copy to carry with you in case of the mail failing but you
would also be somewhat protected from physical damage or theft while on your
trip.

~~~
jMyles
How easy is it to mail an SD card internationally to the USA?

~~~
estebank
Not any more difficult than mailing postcards or any document. Use a rigid
envelope. Mail is usually reliable enough and this would be an "off-site
backup", so to speak. If the likelihood of losing the copy on your person is
.01 and the likelihood of losing the mailed copy is .01 then the likelihood of
losing your photos is .0001.

