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Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

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Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#131

Post by 8ytecoder »

dragonwriter wrote: post #11
theandrewbailey wrote: post #5

OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.

“suspicionless searches” refers to searches without reasonable suspicion; absent particular evidence providing grounds for reasonable suspicion particular to the searched individual, any search would remain “suspicionless” as the term is used in 4th Amendment law; the test has both subjective (was there actual suspicion) and objective (was that suspicion reasonably grounded) elements.

This has to be the top comment in this thread. If you think about it why does anyone have to follow the law? Because there are consequences for when they don't. In this case, as my parent OP correctly states, there's legal precedent and case law on what a reasonable suspicion is. The agent should be able to go to a court, in front of a judge and be able to state what made him/her suspicious of you. If they can't, all evidence they collected during that search will be thrown out. That could basically kill the case. That'd be the motivation for the agent to at least come up with a plausible story on why they want to search you.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#132

Post by mikehotel »

JumpCrisscross wrote: post #6
theandrewbailey wrote: post #5

OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.

> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? The same thing that stops all tyranny. A vigilant and engaged citizen body. Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.

Suing any LEO is hard. Patriot Act covered this: https://www.youtube.com/watch?v=km4uCOAzrbM

I agree donating to ACLU, EFF and similar orgs is our best option. Most of us do not get prosecuted unjustly, but we need to pool resources to defend those that do.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#133

Post by JohnJEsq »

gorgoiler wrote: post #30

I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision. Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the…

The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion.

> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]

No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.

>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?

Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.

In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.

>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#134

Post by abathur »

IANAL, but I'm reading the opinion itself and I've found it pretty accessible so far.

If you find this issue interesting, you may find reading at least part of it rewarding. The ACLU has a PDF embedded on this page: https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...

Sections B-E (pages 14-47) are the most useful.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#135

Post by mark-r »

dontbenebby wrote: post #95

IANAL, so can someone help me understand: How is this the final say if it's out of a court in Boston? Isn't that only one circuit?

Aren't rulings in one circuit often used as arguments in another circuit?

Obviously it's not the final word unless it comes from the Supreme Court.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#137

Post by EpicEng »

_Codemonkeyism wrote: post #13
JumpCrisscross wrote: post #6

Earlier quoted context omitted.

> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? The same thing that stops all tyranny. A vigilant and engaged citizen body. Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.

"The same thing that stops all tyranny. A vigilant and engaged citizen body." Because I'm interested, what would be the top three situations where that happened that come to your mind?

You may recall a certain war faught against the British...

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#138

Post by roywiggins »

ISL wrote: post #25
csours wrote: post #17

Earlier quoted context omitted.

I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. https://www.aclu.org/other/constitution-100-mile-border-zone

And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.

The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text.

There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.

Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#139

Post by baddox »

EpicEng wrote: post #129
baddox wrote: post #118

Earlier quoted context omitted.

It’s a bummer there is still so much serious political discussion about which people count as people.

That's a silly (mis)characterization of what this is. Some rights are only afforded to the citizenry, and that is not inherently evil and is often the only reasonable approach. Other rights are afforded to everyone. The discussion centers around teasing out what the Constitution means when it uses person/people.

I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#140

Post by Spooky23 »

Rebelgecko wrote: post #98
Finnucane wrote: post #28

Earlier quoted context omitted.

If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)

I'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.

The well regulated militia is subject to regulation.
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