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Just turning your phone on qualifies as searching it, court rules (arstechnica.com)
44 points by close04 15 days ago | hide | past | web | favorite | 26 comments

How can this country, with one side of its mouth, say that location data on a phone requires a warrant, but then say that browsing history doesn't. I don't understand.

The US has no general, coherent, constitutional legal theory of privacy per se. Just the 4th amendment rule against unreasonable seaches. As distinct from ECHR general right to private life.

This leads to all sorts of "I'm not touching you" shenanigans where getting your data from somewhere else is perfectly fine, so long as they're not performing something that could be called a search on you specifically.

Then there's also the whole can of worms that (I'm not a lawyer but if I understand it correctly) the NSA can collect as much data about you as they like but it is not considered to have been collected until someone actually requests it

Don't listen to any of NSA's, or really the entire executive branch's, narratives about the legality of anything. It's possible to twist logic to justify anything when you've set out to do so - the legal equivalent of "I'm not hitting my brother, I'm just flailing my arms and walking forward". The only effective answer about legality is when these things actually end up in a real court, apart from the secret kangaroo "courts" they've invented. And as we've seen, these treacherous agencies will do everything they can to keep their activities out of open court.

"We are overseen by the FISA courts!" - NSA

"We don't have enough money to oversee the NSA" - FISA courts

Repeat ad infinitum

Many scholars are arguing that browsing history will require a warrant after Carpenter. For example, see Paul Ohm's article: https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJL...

The recent act by Congress does not mean it is actually legal to access browsing history without a warrant. It will be interesting to follow the development of this issue through the courts.

In the US, as long as data is gained from third-parties, your “browsing history” falls under the “third-party doctrine”:


Because of separation of powers, the judicial branch isn’t run by the executive or legislative branches. Also, the fact that the government isn’t a singular entity; it’s three distinct entities (each with their own sub entities) that are ultimately run by millions of separate humans, each with their own belief system.

Not really the same, you willingly give your browsing history away by browsing, and your ISP is a private company. Maybe if the ISP were more like a government-run library, which are famous for not being able to give away your book browsing history, it would be different.

This country speaks out both sides of its mouth all day every day. My estimate is the FBI will appeal, likely end up with a Trump-appointee presiding over the appellate court.

(I’m not gonna argue whether this is good or bad; I’m just stating facts)

While it is true that Trump has appointed a record number of judges during his term, it’s still only about 1 in 4[0].

As for the Courts of Appeals specifically, it’s about the same. Wikipedia says (as of May 21), he’s appointed 51[1], of which there’s a total of 179[2].

[0]: https://www.washingtonpost.com/politics/one-in-every-four-ci... (“Trump nominees make up 1 in 4 U.S. circuit court judges.”)

[1]: https://en.wikipedia.org/wiki/List_of_federal_judges_appoint... (“As of May 21, 2020, the United States Senate has confirmed 196 Article III judges nominated by President Trump, including ... 51 judges for the United States Courts of Appeals, ...”; “There is currently 1 vacancy on the U.S. Courts of Appeals, ...”)

[2]: https://en.wikipedia.org/wiki/United_States_courts_of_appeal... (“There are currently 179 judgeships on the U.S. courts of appeals authorized by Congress in 28 U.S.C. § 43 pursuant to Article III of the U.S. Constitution.”)

I've heard from people that they use burner phone when they enter US, because at the border things get problematic.

Does this mean that it's now sufficient to turn off your phone in the border, and they can't demand to see it?

The government (via their customs agents) can search anything they want at the border and need neither probable cause or a warrant. Not going to work.

Which is defined as 100 miles from any border:


They definitely need a warrant and definitely need probably cause. And it definitely has to be within the jurisdiction of CBP, ie. they can't pull you over for running a light.

What you do have is a lot of Americans will defer to LEOs without a second thought.

At the border, they need neither a warrant nor probable cause.


This is correct. I mistakenly entered the wrong reply. I was referring to the 100 mile border zone. IT's not the same as the border crossing so I'm not sure why people continue to refer to it as being a rights free zone when it comes to CBP.

No, they really don't need a warrant and they really don't need probable cause. I could pull out USC refs but just read https://en.wikipedia.org/wiki/Border_search_exception

No, they still need probable cause of an immigration or customs violation away from the border but within the 100 mile zone.

The government's position is that they do not. The courts have disagreed, especially with respect to using evidence found under such circumstances in criminal cases.

My mistake, I was actually replying to lotsofpulp on the 100 mile border zone. Once you've cleared the border it's not a free for all. All rights, except those related to the border crossing, are restored.

They can simply deny entry if you're a non-citizen and don't cooperate. For any reason whatsoever. (This, of course, holds for any sovereign country that does not have an open borders agreement with a country that you are a citizen of.)

If my choice is between not being able to enter the US and having US authorities go through my personal devices, I will choose non-entry. That part doesn't worry me so much.

What does worry me is that at the border I have no rights. The usual protections enjoyed by people inside the US don't apply to me. My privacy and dignity at the behest of the whims of whichever border guard I might encounter, and I have zero legal recourse if my rights are violated.

This is not exclusive to the US. Every country's border works similar. They can do enhanced interrogation without probably cause, without a lawyer.

You're right to refuse is still intact but your request to gain entry will almost certainly be denied.

Be careful, "enhanced interrogation" denotes actual torture, such as waterboarding.

You are right. I've changed my reply to enhanced questioning.

It's a shame that GWB, Condi Rice, Cheney, Tenet, Ashcroft, and Rumsfeld are walking around, on TV, and sitting on boards and none have faced consequences.

Related legal basis for ruling:

(Plain View Doctrine) https://en.wikipedia.org/wiki/Plain_view_doctrine

(Fruit of the Poisonous Tree) https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

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