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Courts Close the Loophole Letting the Feds Search Your Phone at the Border

reason.com

11–20 of 181 posts

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#11
> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.

Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#12
So these criminals that have been performing the illegal searches. The next step is they'll be charged with false imprisonment, extortion, and conspiracy, right?

Oh, okay then, how about at least for deprivation of civil rights under the color of law?

Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?

Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?

Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.

And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#13
post #6
post #2

Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?

SCOTUS can absolutely decide differently when one of these gets there.

Since smart phones are explicitly mentioned in Article 4 along with bump stocks, it’s pretty clear how this SCOTUS would rule.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#14

> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector. Does a strip search also require a warrant though?

It doesn't. I was strip searched and imprisoned without a warrant, or even an arrest. And it gets worse from there.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#15

> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector. Does a strip search also require a warrant though?

In the border search context, an intermediate standard of some kind related to actual suspicion.

https://en.wikipedia.org/wiki/Border_search_exception#Search...

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#16

> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector. Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave…

You think that.

I was strip searched

When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.

It sounds so insane, and gross, people usually don't believe it.

I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#17
post #7
post #2

Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?

This is a ruling by a District Court. It could be appealed to the Circuit Court, and then to the Supreme Court. In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts. This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decis…

Exactly this. (and for those unfamiliar with the terms, in federal courts "Circuit Courts" are the first level of appeals courts, which both sides have a right to be heard in, followed by the Supreme Court which is discretionary and only takes on big cases)

When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.

I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.

If I had to wager, SCOTUS will uphold warrantless border searches.

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#19
post #2

Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?

SCOTUS doesn't always make shitty decisions. Sometimes dozens of lower courts will all make a shitty decision and then it gets to SCOTUS and they somehow use their greater resources to produce a better decision contrary to everyone's expectations.

IIRC pretty much 99% of state and fed courts had ruled against the warrant requirement for GPS tracking until it hit SCOTUS and they went the opposite direction (just): https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)

Re: Courts Close the Loophole Letting the Feds Search Your Phone at the Border

#20

I’m curious, if your phone is locked, were they ever able to demand that you unlock it so they could conduct a search?

They can demand, and you can refuse. However if you have Face ID or other biometric measures, they can (legally) force your finger onto the sensor or hold the phone up to your face to unlock it for their needs.

Passwords are personal data, faces and fingerprints are not, apparently.

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