Border Search of Electronic Devices – CBP Directive [pdf] • Hacker News Board

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

#71

Post by dragonwriter » Sat, Jan 06, 2018, 10:02 PM UTC

tptacek wrote: post #68

dragonwriter wrote: post #65

Earlier quoted context omitted.

> 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.

> Which case are you referring to?

Martinez-Fuerte.

> 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.

“100-mile Constitution-free zone” is a simplification that, like any simplification, is somewhat inaccurate; there is a broad (unclear as to it's maximum limits, the 100 miles is current executive policy) in which the courts have allowed, in fairly broad circumstances, substantially lower standards for search and seizure than are otherwise Constitutionally applicable in the US, rendering the protections of the Fourth Amendment in practice much weaker.

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

#72

Post by tptacek » Sat, Jan 06, 2018, 10:41 PM UTC

dragonwriter wrote: post #71

tptacek wrote: post #68

Earlier quoted context omitted.

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.

> Which case are you referring to? Martinez-Fuerte. > 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. “100-mile Constitution-free zone” is a simplification that, like any simplification, is somewhat inaccurate; there is a broad (unclear as to it's maximum limits, the 100 miles is current executive policy) in which t…

You should re-read it, because it explicitly rebuts the argument you're making. It holds specifically that Almeida-Sanchez stands, and that:

In Almeida-Sanchez v. United States, supra, the question was whether a roving patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake, but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. Compare 413 U.S. at 413 U. S. 273, with id. at 413 U. S. 283-285 (POWELL, J., concurring), and id. at 413 U. S. 288 (WHITE, J., dissenting). We held in United States v. Ortiz, supra, that the same limitations applied to vehicle searches conducted at a permanent checkpoint.

It allowed the actions in this case specifically because they were not searches, in the same sense as a traffic stop is not a search, and the police, having pulled your car to the side of a city street for having expired tags, cannot without probable cause demand that you open your trunk to allow inspection.

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

#73

Post by lurr » Sat, Jan 06, 2018, 10:47 PM UTC

Oooh, they referenced both national security and got a "THINK OF THE CHILDREN" in for good measure.

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

#74

Post by tptacek » Sat, Jan 06, 2018, 10:48 PM UTC

paulsutter wrote: post #69

tptacek wrote: post #67

Earlier quoted context omitted.

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”

We're mis-communicating. You said:

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

That statement by itself is clearly false. The police cannot illegally search you and use that evidence as a means to find additional evidence, and then present that evidence in court as if it was untainted.

What I gather you meant now was that parallel construction allows them to do this. Parallel construction is the process by which unlawful evidence is used to direct the attention of LEOs, who, after plainly observing some other crime or probable cause indicator, then conduct a search.

I know what parallel construction is, but what I do not know is why you believe the process is common. Do you have any evidence for the frequency with which it is used? The revelation that it had ever happened was a major news story just a few years ago. Is it your belief that it was common practice, and that even though there are something like 500,000 working law enforcement agents in the US, somehow the secret never got out until recently?

To be very clear: I believe parallel construction has happened and will happen again in the future, but I do not believe it is routine or that any process at CBP is tuned to amplify it.

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

#75

Post by cypherpunks01 » Sat, Jan 06, 2018, 10:54 PM UTC

nabeards wrote: post #49

qrbLPHiKpiux wrote: post #8

The best way is not to travel with anything that is not needed. Use cloud services and a disposable OS. The best way to play their (CBP) game is not to play. Don’t have anything available for them.

Is there any way to quickly wipe and restore a full macOS? or other OS for that matter? As someone who travels, well, all the time, it seems a massive amount of overhead at the moment. If everything is in the cloud, that means I have to be sure to have fast, reliable internet at my destination (which is definitely not always the case). And any way I can think of to securely travel with a copy of my data is just the s…

Chrome is the only OS that makes this ridiculously easy, I think..

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

#76

Post by wu-ikkyu » Sat, Jan 06, 2018, 10:57 PM UTC

Tomte wrote: post #70

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.

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

To understand what they're talking about?

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

#77

Post by ilkan » Sat, Jan 06, 2018, 11:27 PM UTC

mindslight wrote: post #36

robbiet480 wrote: post #24

Earlier quoted context omitted.

IANAL but previously when I have heard that question the common response is "this can later be considered intentional destruction of evidence and/or obstructing justice and can also be used as grounds for further detention because you must have something to hide" EDIT: Also a commenter below reminded me that not obeying any order given to you by CBP/law enforcement is a direct violation of previously agreed to rules…

If you are opting into these "programs", you are already part of the problem.

With the opt-in... 30mins to cross a border. Without it.. slowdowns, flagging, questioning, etc... could be 6 hours. If one is travelling for business, opting out is not realistic.

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

#78

Post by krrrh » Sat, Jan 06, 2018, 11:44 PM UTC

OliverJones wrote: post #22

Are there any devices offering a silent panic passcode? It would be convenient for travelers if "123456" unlocked the device and "987654" erased local information and unlocked the device. That way a properly backed up device could be carried across a border with risk only of inconvenience, not of data loss. (The passcodes I showed are my passcodes. :-) Nobody else use them, OK?)

Not what you're looking for, but it's worth knowing that since iOS 11, there is a panic sequence that disables TouchID at least. This applicable in non-border LE interactions where a citizen can be compelled to touch the device, but not to give up their passcode (IANAL, this might be out of date, as precedents change).

https://www.macrumors.com/how-to/emergency-sos-iphone-ios-11...

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

#79

Post by grecy » Sun, Jan 07, 2018, 12:05 AM UTC

qrbLPHiKpiux wrote: post #8

The best way is not to travel with anything that is not needed. Use cloud services and a disposable OS. The best way to play their (CBP) game is not to play. Don’t have anything available for them.

While I have never had a major problem, it certainly raises a LOT of eyebrows when I say I don't have a phone.

Most Officers simply don't believe me, and quite a few embassies had no idea how they would issue me a visa without a phone number on the application form.

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

#80

Post by paulsutter » Sun, Jan 07, 2018, 12:07 AM UTC

tptacek wrote: post #74

paulsutter wrote: post #69

Earlier quoted context omitted.

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”

We're mis-communicating. You said: Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court. That statement by itself is clearly false. The police cannot illegally search you and use that evidence as a means to find additional evidence, and then present that evidence in court as if it was untainted. What I gather you meant now was that parallel construction allows t…

I don't want to debate the meaning of the word "common", but given the number of Stingers in use, and their NDA prohibiting disclosure, I think it's naive to assume that parallel reconstruction is rare. And yes, that's just my opinion.

When the police find a guy carrying $500,000 in his car, do you really think that was random chance?

> That statement by itself is clearly false.

No the statement is true. Detectives act on hearsay evidence all the time (which is inadmissible). They use everything they know about a suspect to drive an investigation.

Inadmissible means only that it can't be presented in court. While a jury must ignore inadmissible evidence, police have no such requirement. Most of their work is outside the courtroom, the trial is just the presentation at the end.