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Ninth Circuit Goes a Step Further to Protect Privacy in Border Device Searches (eff.org)
97 points by DiabloD3 55 days ago | hide | past | web | favorite | 23 comments

Other than CP, is there any other digital contraband?

Well, there are the Illegal Numbers [0]

The most well known is probably 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 which was a decryption key for Blu Ray discs, allowing you to get around DRM technology.

[0] https://en.wikipedia.org/wiki/Illegal_number

Note that it’s not illegal to possess anti-DRM technology in the same way as it is illegal to possess child porn. The DMCA circumvention provision does not include “possession” as a predicate act for the violation: https://www.law.cornell.edu/uscode/text/17/1201.

There was an article on HN a while back about how other agencies were having the BP do searches (for reasons unrelated to contraband) so those agencies could avoid getting a warrant.

So any criminal activity, not just CP, would be a good reason to not want to be searched at the border.

The question is posed because according to the article, the verdict is that the border patrol is allowed to perform _manual_ searches of electronic devices, just not forensic searches, even without reasonable suspicion, in pursuit of finding "digital contraband". A term which is notably ill defined and which the EFF would like to see limited to just CP, to clarify.

It's probably worth noting that since the search is still _allowed_, information can still be divulged from devices and then used as the basis for a parallel investigation (I believe), provided that information isn't used as evidence. So it doesn't sound like much is practically different, so much as technically legally different - slightly more hoops must be jumped through to convict based on arbitrary device searches, is all.

As a practical matter an encrypted phone can't be manually searched. What I'm not clear on is if CBP, absent reasonable suspicion, can penalize a traveler who does not decrypt.

Citizens, I suspect not. But unclear for noncitizens who don't have a defined constitutional right to enter. (In the past noncitizens who declined searches could risk being denied entry)

It's an important question. Unfortunately in the current climate it seems that even if they weren't, you'd be left pursuing some recourse only after the incident occurred where they would likely react in a very hostile nature if you start trying to do things like point out what they were doing is illegal.

>they would likely react in a very hostile nature if you start trying to do things like point out what they were doing is illegal.

I wouldn't lecture them on the law - a border (or the side of the road) isn't the place to debate what is illegal - that just gives them an excuse to claim they felt threatened.

I'd just assert my right to remain silent, let them seize the phone, restore from backups when I buy a new one, and contact a civil society organization when I get back out.

(And as a practical matter the phone is backed up and I am privileged enough to be able to buy a new one if needed)

According to the article the ruling was that reasonable suspicion is required for a manual search for digital contraband.

It's illegal to possess digital files than can be used to 3D print or mill firearms or other weapons in NSW, Australia.

Could classified material be considered digital contraband? I think if a border agent had a reasonable suspicion that someone was trying to sneak secret material across the border, they could probably search the device.

What is CP?

Images of child sexual abuse, also called "child porn", although the child porn phrase is problematic.


> We use the term child sexual abuse to reflect the gravity of the images and videos we deal with. Child pornography, child porn and kiddie porn are not acceptable descriptions. A child cannot consent to their own abuse.


You can make a distinction if you want:

A child taking their own sexual photos of themselves, with no other person involved, would still be child porn, but not child sexual abuse.

That’s preposterous because it presumes there is even a real child depicted. Only a subset of CP even contains real children.

Pornography is "the portrayal of sexual subject matter for the exclusive purpose of sexual arousal", it doesn't say anywhere that the actors have consented.

Which would make it a superset, and thus problematic if the narrower definition is what is legally intended.

Furthermore there may be no actors at all. CGI CP is still considered CP by our despicable government.

"Child porn", which in the US can be anything ranging from raping newborns to sexually suggestive drawings of imaginary teenager characters.

Now this is a topic that might raise heated discussion so don't get baited into it, but a lot of anime and hentai content does cross the line. Drawing a 13 year old girl and saying she's 18 doesn't really change it.

Which line: in Japan the line seems to be "real vs imaginary", in the US it seems to be "<18 vs 18+", which to me sounds more like a thought police. Much like the infamous "I'll know it when I see it".

I don't think you get to make that call. If an artist draws an 18 year old girl who looks much younger, are we supposed to ignore their wishes and arrest them because we think it crosses the line? We simply will not respect the artist's will when they are the literal creator of the drawing? Doesn't this mindset drift into literal thought crime?

A court does its job! At least a little bit.

Eventually we will get to a state where searches are not done “because reasons”.

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