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EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

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Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#81

Post by wallace_f »

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#82

Post by ENOTTY »

wallace_f wrote: post #81

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 r…

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#83

Post by snowwrestler »

Canada wrote: post #80
iamatworknow wrote: post #49

Earlier quoted context omitted.

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…

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#84

Post by halostatue »

djrogers wrote: post #56
greymeister wrote: post #55

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.

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 a…

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)

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#85

Post by ubernostrum »

wonderous wrote: post #57
greymeister wrote: post #55

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…

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#86

Post by Borealid »

snowwrestler wrote: post #83
Canada wrote: post #80

Earlier quoted context omitted.

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…

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…

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#87

Post by wallace_f »

ENOTTY wrote: post #82
wallace_f wrote: post #81

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 r…

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?

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#88

Post by natch »

abtinf wrote: post #76
natch wrote: post #43

Earlier quoted context omitted.

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…

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.

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#89

Post by manfredo »

wallace_f wrote: post #81

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 r…

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

Re: EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

#90

Post by int_19h »

wallace_f wrote: post #81

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 r…

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.

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