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EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border (eff.org)
314 points by Cbasedlifeform on Sept 22, 2017 | hide | past | web | favorite | 71 comments

The distinction I would suggest is that CBP should have the power to search the effects of entering travelers looking for physical contraband; so, for instance, to examine a laptop and cell phone to make sure they're not fakes full of cocaine or fentanyl or something. They should have no jurisdiction over information. They don't get to examine all the bits coming into the country over the Internet, and we certainly don't want to give them that power!

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

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


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

>> They should have no jurisdiction over information.

Devils'a advocate: But some information is illegal in USA, like kiddie pron, terrorist stuff, stolen trade secrets etc...so we have to make sure it doesn't enter USA.

On the other hand, they can send it via the internet, making border searches less effective. And since they're really burdensome and affect privacy of everyone the court might do away with them. Hopefully

> like kiddie pron

Including, I believe, a rather massive body of drawings and animation films from Japan (I'm thinking of Hentai involving underage schoolgirls).

One does not simply forbids those "to protect the children" (no one under 18 is actually involved in the making of such… art), so there must be some harder to justify reason (like good old puritanism, or priming effects).

Cartoons and drawings aren't illegal, as pornography, in the US. They may still be considered under obscenity laws in some local jurisdictions.

>Including, I believe, a rather massive body of drawings and animation films from Japan (I'm thinking of Hentai involving underage schoolgirls).

This is not illegal at the country-level in the US, however such laws do, hideously in my opinion, exist in England and Wales, Northern Ireland, Ireland, Australia, New Zealand, Canada among other places. They also exist as "oscene" at the state level and thus you may be liable depending on state law.

There was recently a case in Austrila in which a prisoner was brought before a court on the charge of producing child pornography, while in prison -- how? He wrote short fiction stories and they were found by a prison guard. Similarly longer ago a case in Australia decided that children in the Simpsons do indeed qualify as children, beacuse although they do not share many bodily features of real humans, the genitals as depicted in the pornography did share characteristics to those of real humans, which was apparently enough to secure a conviction under the charge of possession of child pornography.

Canada similarly has illegalised possession, even of story material depicting sexual acts involving a minor. To me at least it is ridiculous to think that one may be libable under the law for prison time of up to three years for possession of a drawing.

>They don't get to examine all the bits coming into the country over the Internet, and we certainly don't want to give them that power!

I believe the NSA already does this or it is within their 'jurisdiction'.

Yea, but the NSA doesn't man the borders, and nothing gives them the right to do that (as of now).

Without a court order:


They can do much more with a court order, and the court orders almost never get turned down.

> They don't get to examine all the bits coming into the country over the Internet,

You sure about that?

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

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

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

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

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

Your second paragraph works if you insert pretty much any word instead of devices, including drugs or gold bullion. Which is a consistent position, but one that needs the backing of much more than a paragraph.

outofatacos wrote:

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

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

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

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

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

> confiscate

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

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

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

That was not the point though. I am a permanent resident, and when i was on visa i was constantly sent through secondary inspection. I had to get a redress code to fix some of these issues, but hey, it was a price i had to pay. That is how i think about it.

Now, us is working on programs to enable expedited travel like global entry, or nexus, and more people are eligible for it (like indians). While it is really hard to see how phones can be dangerous in this day an age of internet, but still...

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

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

Well, tbh it wasn't all that appealing even without these ridiculous rules. I used to travel there several times per year, haven't been back in over a decade now. There is a lot more than just these searches from the point of view of an international business traveler or tourist.


This sort of snarky, nasty response will get your account banned here regardless of how bad some other comment was. Worse, you went into flamewar mode, kept up the nastiness, and ended with a nationalistic attack. These things are exactly what we're trying to avoid here. Would you please read the site rules and post civilly and substantively, or not at all, from now on?


What a dumb response. Yes, this happened. And nothing that is currently inconveniencing millions would have made a shred of a difference there. This has been beaten to death for over 15 years. Cockpit doorlocks and passengers being more willing to actively resist hijackers is what made the difference. Border searches on incoming (not domestic) flights not so much, especially not of electronics data as well as personal belongings.

Overreaction is exactly what caused those Islamist terrorists to be able to credibly claim they not only won that particular battle but managed to get their enemy to continuously score own goals ever since.


For an example of an overreaction check out what happened to Iraq and how many people died there.

9/11 was a very ugly thing, but if the goal was to drive a wedge between the United States and the rest of the world because of the reaction it caused then it succeeded very well. Note that terrorists do not necessarily have as a goal to kill a lot of people (though I'm sure they would not pass up the opportunity if they had it), the goal is to cause their perceived enemy to be afraid and to react in ways that further their (the terrorists) goals.

So you are actually helping them.


> No, their goal is to invade, destroy and dominate non-Islamic western civilization.

Yes, their stated goal is to make you afraid. It seems to have worked.

> Their literature explicitly states this.

And our 'literature' explicitly states a whole bunch of things too. Never put too much trust in a single book or in people who only have one book. At the same time, what a bunch of religious fanatics call for and what a billion or more Muslims feel like has nothing to do with each other and without the cooperation of the second the first can do some occasional damage but are not nearly powerful enough to overcome even the smallest Western country.

> It's a tragedy that the islamists are starting to succeed in Europe

They are? I haven't seen any and I live there.

Please point them out for me.

> because collectively you refuse to recognize it for what it is: an asymmetric, paramilitary invasion.

You mean: Muslims in general? Refugees?

Or are you actually claiming the majority of these folks are terrorists now?

I really have a very hard time finding any shadow of aggression in my Muslim friends, at the same time I have absolutely no problem detecting that (well beyond a shadow) in the words and deeds of the Neo fascists who would be more than happy if they disappeared by any means.

Anyway, I can see that your mind is made up on this and that whatever I say will probably just convince you more that you are right about all this so I will leave it at this point.

Best of luck with your fears.

It's been almost twenty years since this happened. How long do we need before we are allowed to make rational decisions instead of emotional ones when it comes to terrorism and the 9/11 attacks?

Sure ~5,000 people died in 9/11 and that's awful, but how many people die in car crashes every year? How many people die from smoking, cardiac issues, diabetes, gun violence, drugs, workplace accidents, medication non-adherence etc etc? How many people have died in the wars that we started on the (incorrect) grounds that they would prevent future terrorist attacks? You don't see us going crazy trying to prevent any of these causes of death even though they amount to far more deaths than terrorism ever has or ever will.

Please stop fear mongering and look at the data. Just because something is scary and different doesn't mean it's actually a real threat to the United States. It makes absolutely no sense to expend the resources and effort that we do given the scope of the problem.

Im sure if they could still speak, most would be shocked at how we gave Bin Laden everything he wanted by eliminating some of our own civil liberties.

It is when that increase in border security wouldn't have prevented the attack.

All of those planes were domestic flights though and wouldn't interact with border patrol at all.

Precisely. But don't let that get in the way of some good old paranoia.

and your response has been to act like a bunch of paranoid morons, giving up your freedom for the illusion of security.

Great job. Really showed the terrorists with that response.

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

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

The plaintiffs are mostly US citizens, who (in theory) have rights the government is supposed to respect even if they are far from US territory.

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

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

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

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

I agree that your statement is morally and logically correct.

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

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

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

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

I've seen that argument too, but it is false. There are no clauses in the constitution and particularly the bill of rights that limit rights to only US citizens on US soil. (other than restricting that the presidency be held by a citizen.)

The constitution is a document that granted very limited power to the federal government and very broad rights to the citizens.

All of what we have now-- from the TSA to the the NSA to DOE is unconstitutional.

The argument I make is that the Constitution exists to simultaneously establish a government and limit its powers, and applies to all agents of said government no matter where in the universe they may be.

If the border crossing is not within the jurisdiction of the US, its agents have no authority there, and if it is within the jurisdiction of the US, its agents are subject to its laws and bound to obey them. And if the agent stands one foot in and one foot out, the person seeking entry ought to be able to turn around and return whence they came with all their possessions intact whenever they decide the crossing has become too burdensome and that they no longer wish to enter.

A citizen of France has as much right to be free of unreasonable search and seizure by an agent of the US government in New York as in Paris, or in London. The Constitution is the adhesion contract for all persons seeking to become employees of the nation. It just so happens that no court in the US has been established asserting jurisdiction over territory outside the US, so if said Frenchperson had experienced a violation of their 4th Amendment rights by, for instance, a CIA spook without a warrant, in their own home in France, there is no court available to take the case other than the Supreme Court itself. It simply won't take the case, just because no one wants to open that can of worms.

The de facto situation is that the US government does whatever TF it wants outside the US, because it has the money, might, and influence to get away with it, and the voting public back home just can't give enough focus to international shenanigans as well as their regular, day-to-day problems.

By a strict reading, it breaks its own laws all the time, with absolute impunity. As a lifelong American, I have never heard any politician so much as mention this, even to dismiss it out of hand as a non-issue.

Unlocking an electronic device to examine the bits stored on it is, in my opinion, an unreasonable search and seizure that goes well beyond the scope of the eminently reasonable searches for and seizures of physical contraband at border crossings. Therefore, by its own rules for unreasonable searches, a warrant must be obtained by the US government from itself before said unlocking can happen.

Furthermore, if I saw a sign saying, "YOU HAVE NO RIGHTS", I would be pissed. Regardless of any laws in force, everyone has the right to be treated with a default level of respect and basic human dignity by their fellow humans, and to travel about their own planet without some arrogant yard ape turning their trip into a GDMF Kafka novella. You have the right to be addressed courteously. You have the right to protest any government overreach, even if it trivial, and even if it is not your government. You have the right to live free in the free world.

Wow, that was dystopian.

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

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

They were denied entry.

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

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

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

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

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

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

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

Top link, quite recent, thousands of results:


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

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

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

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

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

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

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

I should no longer have any expectation of privacy

The above poster suggests even worse.

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

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

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

> US law does not apply outside its borders.

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

Even the US government doesn't claim that US law does not apply outside the border; that is simply false.

Case in point: having sex with a child outside the US is still a crime you can be prosecuted for under US law when you return.

About time there is a system where you can make a super cool backup of your entire smartphone and laptop on a remote system, then completely wipe these devices and restore it when you are safe from the border officers. icloud total backup or something :)

"Sure officer, i'll unlock my phone and my laptop. There's absolutely nothing on it."

Wrong. Legal precedents rule all. This should be fought, not tacitly approved of via circumvention.

What do you have to hide?

Everything i want

Just because it is the Federal government does not mean they can do whatever they want. The Bill of Rights limits government power, especially those of the Federal government.

Before you and them both realize that fact, a lot of time (and maybe money) has been wasted.

I'm not a lawyer, but I would be shocked if you forfeit your rights every time you enter the country. If this were the law, we citizens of the US have a moral responsibility to change it.

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

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

I'm also rather fond of Heifer International.

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

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

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

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

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

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

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

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

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

Exactly. U.S. Customs and Border Patrol can't detain U.S. citizens indefinitely without charging them with a crime and trying them in court.

> Is this something that actually happens nowadays?

Yes, I personally know someone this has happened to. Also resulted in my own personal name/address/other info (amongst that of many others) also being demanded and hence provided to the government.

> Why on earth would anyone ever consent to this nonsense?

What would you do if you weren't a citizen and had a family to come back home to? Just be okay with being denied entry?

See ¶ 38 and ¶¶ 47-49 of the complaint: https://www.eff.org/document/alasaad-v-duke-complaint

Why on earth would anyone ever consent to this nonsense?

Because the government has more guns than you do.

The detailed legal answer is far more complicated than that, but it simplifies readily.

You have no idea. Travel to usa from turkey, and im not kidding, you need to go through around 6 id checks and luggage checks even for us citizens.

Url changed from https://www.nakedcapitalism.com/2017/09/electronic-frontier-..., which points to this.

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