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Border Search of Electronic Devices – CBP Directive [pdf]

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Re: Border Search of Electronic Devices – CBP Directive [pdf]

#61

Post by forapurpose »

smoyer wrote: post #56
provost wrote: post #3

Section 5.3 pertains to requesting passcodes, and that an Officer may ask you for the passcode (I don't see anything about individuals being obligated -- though see 5.3.4, which could be interpreted by "legal remedies"). However, section 5.3.3 says: > If an officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the Officer may, in accordance with secti…

My employer made me sign an agreement that states (among other things) sharing passwords/passcodes is not allowed and that termination is a potential result of a violation of this policy. I'm going to keep my job and not unlock the whole-disk crypto protecting the data on my drive. Since I work for an educational institution, there is potentially FERPA protected data on my drive. In some instance we also deal with HI…

(IANAL.) Employment agreements generally are not enforceable when they conflict with the law, AFAIK. The security guard might be required to never open the door, but when a police officer or court gives them a lawful order to open it, they open it or go to jail. I doubt they could be fired for opening it in that circumstance; your employer cannot require to you violate the law.

Another way of looking at it: You can write whatever you want on paper and sign it, but that doesn't make it enforceable. You could sign a document that makes you a slave or puts up your children as collateral for your ISP bill, but those agreements would be scrap paper (or evidence for the prosecutor).

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#62

Post by tptacek »

foobarbazetc wrote: post #60
tptacek wrote: post #57

Earlier quoted context omitted.

Which is fine, since you're a US citizen and can't be denied entrance. They're going to confiscate your devices, though.

Can LPR’s be denied entrance for refusing to unlock?

Probably not, since they also can't be denied entrance by executive order. But I'm not a lawyer!

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#63

Post by tptacek »

paulsutter wrote: post #58
tptacek wrote: post #53

Earlier quoted context omitted.

You would guess that based on what evidence? Just first principles, in the sense that if you ran an DOJ and a CBP with what you believe the same objectives as the real DOJ and CBP, that's what you'd do?

Two reasons: (1) There were posts on HN around the time of the Snowden news of border agents presenting private emails, in one instance someone was traveling as a tourist but had email inviting them to perform as a musician (2) In individual stories I read of searched phones, the agent already knew where to look (for example, went directly to an app with discussion arranging paid hookups) We already know that paralle…

We know that parallel reconstruction is "common"? Can you back that up with evidence?

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#64

Post by dragonwriter »

illirik wrote: post #25

One thing to note: "This directive governs border searches of electronic devices -- including... at the extended border." The "extended border" extends a hundred miles from what we normally consider the border; the authorization for customs agents to conduct warrantless searches in the Immigration and Naturalization Act allows them "within a reasonable distance from any external boundary of the United States," and th…

> The Supreme Court disagrees (Almeida-Sanchez v. U.S., U.S. v. Martinez-Fuente),

Martinez-Fuerte sharply limited Almeida-Sanchez: Almeida-Sanchez (1973), it's true, seemed to require warrantless border searches to be at the border, but Martinez-Fuerte (1976) allowed warrantless “border” searches at immigration checkpoints on public highways leading to it away from the Mexican border, even without any individualized basis for suspicion (much less probable cause) or when the decision to make stops was based entirely on the perceived ethnicity of drivers/passengers.

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#65

Post by dragonwriter »

tptacek wrote: post #50
ComputerGuru wrote: post #29

Earlier quoted context omitted.

Yes, it’s indeed over the top. Here’s a map by the ACLU: https://goo.gl/images/HpPYby

It is indeed over the top. Almost too much to believe. Oh, wait. It is too much to believe . This notion that any place within 100 miles of a border is a "4th Amendment Free Zone" is an urban legend. The ACLU should stop spreading it. The exact issue we're talking about here has been tried all the way through the Supreme Court, which found that the border search exemption only applies to people with some nexus to an…

> The exact issue we're talking about here has been tried all the way through the Supreme Court, which found that the border search exemption only applies to people with some nexus to an actual border crossing.

Wrong. It found that warrantless “border” searches on public highways leading to it away from the Mexican border were legal based on either perceived ethnicity of drivers or passengers or even no individualized basis for suspicion. No nexus between the searched person or vehicle and an actual border crossing beyond being on a road which eventually led to or away from the Mexican border is required.

It's true that the only places that the decision applies to are public highways, not (e.g.) the interior of residences or businesses, so it's not any place. But it's pretty extensive.

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#66

Post by paulsutter »

tptacek wrote: post #63
paulsutter wrote: post #58

Earlier quoted context omitted.

Two reasons: (1) There were posts on HN around the time of the Snowden news of border agents presenting private emails, in one instance someone was traveling as a tourist but had email inviting them to perform as a musician (2) In individual stories I read of searched phones, the agent already knew where to look (for example, went directly to an app with discussion arranging paid hookups) We already know that paralle…

We know that parallel reconstruction is "common"? Can you back that up with evidence?

Google “parallel reconstruction stingray” or “parallel reconstruction dea”

Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#67

Post by tptacek »

paulsutter wrote: post #66
tptacek wrote: post #63

Earlier quoted context omitted.

We know that parallel reconstruction is "common"? Can you back that up with evidence?

Google “parallel reconstruction stingray” or “parallel reconstruction dea” Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.

That's categorically false.

https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#68

Post by tptacek »

dragonwriter wrote: post #65
tptacek wrote: post #50

Earlier quoted context omitted.

It is indeed over the top. Almost too much to believe. Oh, wait. It is too much to believe . This notion that any place within 100 miles of a border is a "4th Amendment Free Zone" is an urban legend. The ACLU should stop spreading it. The exact issue we're talking about here has been tried all the way through the Supreme Court, which found that the border search exemption only applies to people with some nexus to an…

> The exact issue we're talking about here has been tried all the way through the Supreme Court, which found that the border search exemption only applies to people with some nexus to an actual border crossing. Wrong. It found that warrantless “border” searches on public highways leading to it away from the Mexican border were legal based on either perceived ethnicity of drivers or passengers or even no individualize…

Which case are you referring to?

Also, I can't tell if you're nitpicking my summary or if you actually do believe there's a 100-mile-wide Constitution-free zone hugging the US border.

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#69

Post by paulsutter »

tptacek wrote: post #67
paulsutter wrote: post #66

Earlier quoted context omitted.

Google “parallel reconstruction stingray” or “parallel reconstruction dea” Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.

That's categorically false. https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

You should read your own link. Parallel reconstruction is an explicit exception to that rule. I would be thrilled if you can debunk parallel reconstruction, but that doctrine is the very reason for it.

From your link:

“The doctrine is subject to four main exceptions. The tainted evidence is admissible if:

- it was discovered in part as a result of an independent, untainted source”

Re: Border Search of Electronic Devices – CBP Directive [pdf]

#70

Post by Tomte »

paulsutter wrote: post #66
tptacek wrote: post #63

Earlier quoted context omitted.

We know that parallel reconstruction is "common"? Can you back that up with evidence?

Google “parallel reconstruction stingray” or “parallel reconstruction dea” Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.

Why would I google a very idiosyncratic phrase that next to nobody except you is using?
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