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EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border (eff.org)
549 points by DiabloD3 71 days ago | hide | past | web | 118 comments | favorite



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.


>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.


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...

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.


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...

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.


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.


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.


> CBP has no reason to hide their activities because they believe they are faithfully enforcing the law.

It is far from settled that searching the electronic records of citizens just because they're crossing a border is a faithful enforcement of the law. That's precisely what this lawsuit aims to disprove.

That being said, I agree that the number is likely accurate. CBP is not regularly searching electronic devices.


What evidence do you have that they're trying to mislead us other than "governments and law enforcement are bad so they're probably lying"?


Out of the number of people who crossed, how many were flagged for additional questioning? Out of those flagged, how many were carrying a cell-phone / laptop across the border?


Looking at the list of people represented, I'm lead to believe there is a large chance of racial profiling being involved.


I'm lead to believe there is a large chance of racial profiling being involved.

On whose part? The border patrol, so that the pool of potential plaintiffs is large? Or by the EFF and ACLU, choosing a diversity of plaintiffs to represent?


Absolutely a possibility.


Going into Canada as a US citizen is usually super easy anyways. Last few times I've been across it was maybe two questions, that's it.


It's always been easy for me, too. I recently got a Nexus card which makes it so I don't even have to talk to a real person when arriving in Canada (at least via air). Literally just two questions in a kiosk and hand someone a receipt. Of course that means the governments of Canada and the US did a background check and recorded my fingerprints and retinas, but I'm fine with that, personally.


I have global entry and feel the same. On the application they didn't ask for anything they didn't already have so it wasn't a big deal. Well worth it considering the included pre check.


Agreed. In fact Nexus, which includes Global Entry and PreCheck costs less than PreCheck alone ($50/5 years versus $85/5 years).


You know, I have to say something about this:

>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.

This is horrible - not beacuse of the child porn aspect, but because Canada has draconian laws (though so do Britain, Aus and NZ) which mean that drawings are prohibited. Drawings of fictional characters, that is. I read a story, though mere anectode, I hope it is relevant - about a man who was arrested beacuse they found they found drawings in his cache. He didn't even like the material. A US citizen that was crossing the border and searched beacuse he looked "suspicious".

We should not excuse this violation of freedom of expression just because it happens/happened at the border. Canada has laws that it deserves to be called out on.


USA and Canada are democracies. The people (majority of people (actually the people claiming to represent the majority)) have spoken - fictional drawings of children are to be treated as crimeful as real ones. Court adjourned.


>The people (majority of people (actually the people claiming to represent the majority)) have spoken

Really, have they? Is there a poll showing that? And does agreement on laws mean that the laws are therefore not draconian? I'm sure many in, for example, Saudi Arabia would think that homosexuality should be prohbited. Does this mean that it should be that way?

>fictional drawings of children are to be treated as crimeful as real ones

That's not what the law says.


> I realize trying to subvert any Canadian border search is not a good idea

Erm, I don't see how you'd be "subverting" the search. The purpose of a border search is to examine what you're bringing into the country. If you smoke marijuana at home but (prudently) don't try to bring some into Canada, that isn't subverting their search.

The latest time I returned to into the USSA (a while ago), I had an old laptop that I zeroed out the hard drive and physically moved it out of the computer. I figured this would leave the thugs with less justification to steal my things. However, I lucked out and was not actually subjected to an invasive inspection.

Also, I don't know what you've previously used this burner phone for, but any flash filesystem won't actually erase things when you delete them.


$100 says nothing is going to happen. This is selection bias at its best, as you only hear about the people getting their devices searched not the ones crossing easily. The chances of this happening to you are slim to none.

I am not saying no one should be worried, I am just saying OP should not.


>> The maximum threat to me is semi-indefinite detention

Thanks for willing to take one for the team but be prepared to be put on a "troublemaker" list and be harassed, time and time again at border crossings.


I am curious, is it possible that countries / regions share such lists? i.e. would refusing to comply with a digital search at the US border possibly affect me in EU?


Given the intelligence alliances that we know exist and the likely many that we aren't aware of, it's not only possible but probable.


Just apply for Nexus. You're harmless. They'll do supreme vetting once and you'll avoid any stupid power tripping boarder guards after that. Since I got that I've spent under 5 mins at the boarder each time.


My solution has been to not go to the US, but that is not always doable.

An interesting solution is to give something else to the border to worry about. Something perfectly legal but that would focus their attention. Like a perfectly registered and legally transported gun. Or some flour in plastic bags. Or a bottle of whiskey.


As a guy that's had my phone searched by customs a dozen times now, been put in windowless rooms while my car was tossed, held for four hours in the same room as my car while they pulled panels off, etc...

I had a lot fewer issues crossing the border once I stopped being so organized.

When I checked in for my flight I didn't have my passport itself on me, just the number. The airline I was using asked for an expiration date. I remembered the month and year but not the day... So I just picked a day. When I cleared customs, the guy was so busy correcting the expiration date on the computer that he wasn't even listening to my answer to his questions.

On the way back, I was switching airlines, and the originating airline was unable to print me a boarding pass for the flight they'd put me on. When I got to customs and they asked for paperwork, they also asked for my boarding pass for my final flight. When I didn't have one, they sent me to get one from the airline and then literally waved me through when I came back.

Once I noticed this, I started to think back... The least hassle I've had clearing security was when I did dumb things like leave a lighter in my pocket when I went to the airport. As soon as they found the lighter, they just took it away and admonished me and sent me on my way.

For the most part, if you haven't given them a reason to be suspicious, once they find something it seems they stop looking.


If you feel strongly about the cause, maybe you can just donate to the EFF and ACLU rather than possibly causing yourself a bad day.


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.


Despite federal law allowing certain federal agents to conduct search and seizures within 100 miles of the border into the interior of the United States,[5] the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent (such as international airports).[1] [2]

[1] https://scholar.google.com/scholar_case?case=693326075362777...

[2] https://en.m.wikipedia.org/wiki/United_States_v._Martinez-Fu...


Meanwhile, CBP recently ran a roadblock on Interstate 93 in New Hampshire, ostensibly to catch undocumented migrants, but the majority of arrests were of US citizens, and the majority of those US citizens were arrested for -- surprise! -- drugs found when they or their vehicles were searched:

http://www.concordmonitor.com/New-Hampshire-interstate-borde...

As the article notes, essentially the entire state of New Hampshire falls within a the 100-mile border zone in which CBP claims no warrant is needed. Perhaps you should forward your HN comments to those officers to clarify what they are and aren't allowed to do in that zone.


You're right. The law has very little bearing on what law enforcement officers can and can't do.

Any number of courts can rule that a particular LEO activity is unlawful, but it seems to have very little effect on their actions henceforth. In my experience, so long as the officers believe they were acting lawfully there are typically no repercussions. Occasionally one might get put on leave with full pay while an investigation is carried out. What kind of disincentive is that supposed to be?

I definitely believe there needs to be a third party to police operations. Some sort of service tasked with keeping police behaviour in check, present to support the rights of the citizenry. Law enforcement officers shouldn't be allowed out alone.


> I definitely believe there needs to be a third party to police operations. Some sort of service tasked with keeping police behaviour in check, present to support the rights of the citizenry. Law enforcement officers shouldn't be allowed out alone.

This is in place already in many jurisdictions. The review board is almost always populated with former police rather than community members, ostensibly because they have better insight as to the challenges officers face on a daily basis. This is one of the reasons the cop in LA went mental a few years ago - because he was out of favor politically, his review board experience went sideways, while many of his peers had a decidedly different outcome for more egregious offenses. (I can't get into specifics because I don't actually remember them in detail).

It is a common case that officers are disciplined and that discipline is rescinded by the review board rather than strengthened. You can almost sympathize - when police are instructed to lie and behave unethically on a regular basis, it's bs to fire them when they make the news for it. The guys on the street are stuck between a rock and a hard place - having to satisfy their superiors, but the requirements for doing so would get them fired by any civilian review board. For instance, the pattern of ticketing soccer mom's at the beginning of every school year under a quota system would cause all kinds of issues under civilian review. But it happens all over the place and even though it's illegal, the practice nor it's practitioners will ever face consequences for it.


Perhaps a board empowered to review how officers are instructed would be better able to fix things.


Their use of drug dogs is a critical factor that should be mentioned there.. once a car's flagged by a dog, there is probable cause for a further search federally and in most states. So for better or worse I believe their actions were consistent with current Federal laws and any resulting federal drug charges would be difficult to challenge as resulting from an illegal search.

AFAICT from that article, they did not attempt warrantless searches on cars (or individual US citizens) that were not flagged by the dogs.


Regardless of legal precedent, dogs are known to be a way to manufacture probable cause -- if the officer wants to search, they can find a way to make the dog "alert", or claim that it did.


That's certainly true and I do wish they would move to a non-animal-based sensor to reduce that vuln.


Right. This is something that people often miss when they say ridiculous things are illegal. The whole point of judicial review is that just because the legislature says something is legal/illegal, doesn't mean it actually is.


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.


Except that, in practice, that’s precisely what CBP interior checkpoints are. https://en.wikipedia.org/wiki/United_States_Border_Patrol_in...

The DHS/CBP regulations claim 100 miles from a border and/or international airport, but the Supreme Court has (so far) held that warrantless searches in this case apply only at borders and their functional equivalents. (https://en.wikipedia.org/wiki/Border_search_exception)


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?


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


> CBP agent can stop, search, and detain anyone within 100 miles of an International airport.

This assumes a sequence of events that never occurs in reality.

CBP / LEO attempts to detain you > The Law pops it's head out from behind a bush and wags it's finger > CBP / LEO sees this and thinks 'oh, of course, silly me, that's not allowed' > you go about your day.

In reality: CBP / LEO believes* they have sufficient reason to detain you > your day is fucked. They'll probably rough handle you, stomp on your head, and generally be degenerate asshats. There's no one present to advocate for and protect your rights.


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


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.


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.


> 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.


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?


Unless you can guarantee everybody will have access to multiple ISP:s (effectively impossible unless the backbone owners for your area offers open access to their network), net neutrality is pretty much necessary to guarantee that people can communicate freely.


While there is potentially an argument to me made that a hostile government could use this expanded power to "regulate" for some nefarious purpose, you have to actually go that far for it to be an argument.

For example {hypothetical} "Net Neutrality gives alphabet-soup-agency a form of super-DMCA that I don't trust them to have"


It is unfortunate that your experiment of encouraging rebuttal didn't work out. When it comes to this issue, emotion and politics trump reason.


If you really think that's how it is, I encourage you to learn more about what net neutrality is before commenting further on it.


When it comes to this issue, emotion and politics trump reason.

Right. You're describing your own view there.


It does not sound like you understand what net neutrality is. Have you read their statement on it [1]?

[1] https://www.eff.org/issues/net-neutrality


It's only state intervention in that it limits the potential tyranny of corporate behemoths to abuse the citizenry and subvert free markets.


And why must the government insert itself into free speech issues by passing radical regulations like the first amendment? For shame!


Please reread what the FCC's "net neutrality" is, and specifically ask yourself how exactly those powers are a negative in any way. If the information you have in mind is nothing more than vague platitudes like "state intervention and control of the internet" you shouldn't be making decisions based on it.


So you're taking the "pro-corporate control" position instead. Brilliant.


I'm glad they picked up this approach, I think they got it from the NRA. NRA's been doing donor merchandise and services quite well for a long time, they even have a wine delivery service.

I encourage anyone operating a non-profit to consider setting up programmes like this; you'll get more visibility (from people virtue-signalling their donation), and it will attract new revenue from sociopaths.


> and it will attract new revenue from sociopaths.

Can't I just like a hoodie?


Heheh, fair enough. But I figure if the hoodie is the deciding factor for whether or not to donate (or how much), then you're just making a purchase.


When you donate money you arguably "purchase" the good feeling of doing something "good" and also social validation if you choose to make your donation public.

I think it's a great idea to entice more revenue by giving an option (a hoody) for people who are not interested in "purchasing" the above.


True true. I donate to the EFF annually but now I can wear their swank hoodie at US border crossings (I am a glutton for punishment).


Purchases are great. e.g. my Clayoquot Sound t-shirt from 2013 which is a souvenir with an indigenous rights theme from the other side of the world.

A mere cash donation to a petition-wielding activist would not have had the same resonance. At least several years later I still have a cool t-shirt.


And I think the NRA got it from PBS, who have been offering tote bags, Elmo dolls, and the like in exchange fir pledges for decades.


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


No reason why you can't do both!


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.)


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."


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.


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.


The difference is that nearly everything the Queen of England does is in some way important to the UK, even if it's just on the level of keeping crown operations (which bring in substantial funds to the state) running smoothly.


It'd have to be on a very small scale.

Countries get to limit the number of staff a foreign embassy is allowed to bring in, and they can kick folks out of the country.


Ah, note, I said "diplomatic courier", not "diplomat." A diplomatic pouch can actually be escorted by anyone, or even unescorted, as long as it has a sealed manifest affixed. Indeed, the person escorting the pouch doesn't even have to be a citizen of either the source country or the mission/embassy. This proviso allows people to be "deputized" to deliver a diplomatic pouch; allows diplomatic pouches to be handed off for delivery and still keep their protections; allows diplomatic pouches to be recovered from a war-zone and resume delivery; etc.

Fun fact: for air travel, unescorted diplomatic pouches are taken into the care of the captain, and are kept in the cockpit.


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).


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.


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.


>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?


Here's a fairly detailed paper with links to many of the laws and court decisions that are the bedrock of the border search principle - http://trac.syr.edu/immigration/library/P1075.pdf


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...)


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).


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...


The Supreme Court has determined that the 4th Amendment has lesser protections at borders.[1] Border patrol has the ability to search your containers , and perform non-invasive body searches without any degree of suspicion, for instance. More invasive searches, like cavity searches and involuntary body x-rays require a degree of suspicion. Whether electronic searches fall under the first category or the latter is what this lawsuit may determine.

[1] https://en.wikipedia.org/wiki/Border_search_exception


The short answer is that the Fourth Amendment isn't actually all that clear, and that it's up to judges, lawyers, politicians, and citizens to figure out how it applies in different situations.


Which part do you find to be unclear? It looks pretty clear to me.

What if I asked about Guantanamo, the NSA, or wars without approval of congress? Are all of these failures of our Gov to observe our constitution issues of some kind of lack in clarity?


> Which part do you find to be unclear?

Fourth Amendment: > 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.

The word "unreasonable" in "unreasonable searches and seizures" introduces a full hectare of gray area.


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.


I like to think of it in terms of house keys.

It's one thing if a border guard inspects your house key you brought along, analyzes for dangerous substances, drugs, etc.

It's another if they clone that key and have someone drive out to inspect your house with it.

To me, your house in this scenario is your entire collection of private data accessible online / remotely (finances, taxes, possibly the private data of others -- possibly even portals to HIPAA/other PII data of a more commercial nature).

Assuming you agree that it is unfair to let the border search data outside of the phone, then it gets still more problematic.

One of the tricky aspects here is that it seems you can be detained / intimidated if you refuse to decrypt / unlock your device (as a US citizen re-entering your own country). I think you're getting at the idea that the phone/laptop is a physical device and should be searchable like any other object -- and, I think that's fairly reasonable. The problem is that the border guard can also "compel" you to decrypt that device / log in to it if you've put these measures in place. People have been forcibly detained for refusing to cooperate [1], even being put into a chokehold [2].

I respect that some amount of extra search power is required at borders -- but that power must be reasonably scoped (and in this case, I'd say it is not).

[1] http://www.cnn.com/2017/02/13/us/citizen-nasa-engineer-detai... [2] https://www.nbcnews.com/news/us-news/american-citizens-u-s-b...


"possibly even portals to HIPAA/other PII data of a more commercial nature)."

You bring up a good point about HIPAA. I work in health care and we are allowed to keep a work email client on our phone provided that we keep control of our phone at all time (to keep PHI/HIPAA info safe). A border agent searching through my phone could be considered a HIPAA violation and would have to be reported. Not sure if anything would come out of it fine wise for the company but it would still be a nightmare for compliance.


One interpretation is that you're responsible for someone else breaking the law. If it's a violation, then the border guard committed the violation.

Another interpretation is that you cannot possible obey the law. If the border guard has the legal right to demand access to the HIPAA protected data, and you can't legally give him access... then the law enforcement officials are forcing you to break the law.

With no punishment for them, of course.

There's one set of rules for normal people, and another for law enforcement. How does this keep me safe?


"One interpretation is that you're responsible for someone else breaking the law. If it's a violation, then the border guard committed the violation."

The problem with that is that they aren't a covered entity and thus shouldn't have access to the data. Because they aren't a covered entity HIPAA rules do not apply to them.


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?


Many of which fit the legal definition of papers:

http://legal-dictionary.thefreedictionary.com/Paper

which are protected from being searched by the fourth amendment:

"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."

(I quoted the modern legal definition of papers, but the proper thing to look up is the colloquial definition of papers at the time the constitution was written. Does anyone have a good reference for how the founders of the US would have used the word "papers"? It clearly included legal and accounting documents, but e.g. was it broader than that?)


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.


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.


You can plead the 5th. Your phone cannot.


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


It really isn't.


Because that's presumably to prevent you from importing physical contraband into the country. Checking your internet connected device for contraband makes zero sense.


Could they make the argument that they're checking for malicious software/viruses/other bad stuff that could be a threat to Americans?


What year is this? That kind of stuff can just be transferred via the Internet. It doesn't have to physically be transferred across the border.


Then we better put up a great firewall.

Also... Malware is not illegal. Using it can be.


Then "randomly" and arbitrarily searching people's devices as they cross the border isn't really an efficient way to do it, unless you also set up an intrusive firewall to "protect" the U.S. from malware.


I mean, not really unless they open it up and run antivirus software on it.


And even then it would only find things they already know exist, which would mean they're already in the country more than likely.


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.


Contraband can be digitally transmitted without physically traversing a border. Given this, what purpose is there to performing extended searches (potentially of cloud / remote data) at the time of border crossing?

This opens a door to unlimited search power at US borders against US citizens. There is already a 100-mile inland range where your can be searched without a warrant around our borders -- we are only going to make this worse by extending that range into all of our private digital data.

I posted a house/key analogy just now that may help clear up the distinction between physical and digital data search. Just to be clear, I'm actually ok with border guards physically inspecting my electronics. I am not ok with them compelling me to login to them, decrypt them, or otherwise hand them over my social media / banking logins / etc.

Keep in mind, we're talking about US citizens re-entering their own country here. I think this is a key point.


It could make sense for foreign visitors (to check for intended visa violations, etc.)

But there is no reason to search the devices of U.S. citizens and lawful permanent residents, who are already authorized to live and work in the U.S. These people would have no reason to break immigration law. And if the government is searching digital content for evidence of other unlawful activity, they should have to get a warrant.

Keep in mind that any digital content you can bring through a border port-of-entry, you can also just send it via the Internet.


The idea of digital contraband is anathema to a free society.


One big difference is that digital searches aren't limited to stuff you're bringing with you -- they want to search your entire past history in terms of email, social media, etc.

Another big difference is the purpose of the search in the first place. We search for physically dangerous items to protect people, or unlawful items for customs reasons. The case for physically dangerous data and unlawful data is much less clear cut.

The real reason for searching your devices seems to be related to profiling you as a person in order to determine if they want to let you in, which is a completely different purpose than searching your bags.


It depends on the reasonableness of the search. Physically inspecting bags to prevent agricultural products and weapons is both more effective at protecting the country, and less invasive into the personal lives of the travelers. Searching your phone is not just what you are carrying with you, but your entire connected life. Because the CBP is doing so few of these searches already there is little reason that they cannot get a warrant in cases where there is a real reason further search is needed.


In a world without the Internet, sure. But in the one we live in, it seems trivial to "sneak" digital contraband into the United States.


Sensitive information that someone is reluctant to send over the internet may be stored on a hard drive and exchanged in person.


Fair, but data can be encrypted in an air-gapped machine and then sent over the Internet, too. Unless you have diplomatic cover (and privilege from being detained or searched), I would argue that carrying in person is higher risk.


Checking for digital content at the border doesn't really make sense, given the Internet. Especially as applied to U.S. citizens and permanent residents, who are already authorized to work and live in the U.S. and therefore should have no motive to break immigration laws. If this is not a purely immigration inspection at the border, then the government should get a warrant.


It's complicated by your phone or laptop also being a gateway to a much larger digital footprint. My phone has some information stored locally, but it also has the keys to all my online accounts.

If I carry a key to my home safe with me across an international border, that doesn't give the government the right to seize that key and search my safe but that's effectively what they're doing with digital searches.


Dupe: 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. :)


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! :)




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