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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

#91
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…

> 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.

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

#92

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.

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.

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

#93
post #90

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.

>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?

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

#94

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 wha…

[deleted]

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

#95

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.

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.

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

#96

Earlier quoted context omitted.

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 Hamp…

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.

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

#97

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…

> 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.

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

#98
post #38

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 con…

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.

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

#99
post #90

Earlier quoted context omitted.

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?

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...)

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

#100
post #90

Earlier quoted context omitted.

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
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