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

reason.com

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

#31

Post by dcdc123 »

uoaei wrote: post #20
arnonejoe wrote: post #18

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.

Five taps of power button on iPhone disables biometrics until you enter the passcode. I always do this before going through airport security

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

#32

Post by mindslight »

RIMR wrote: post #22
mindslight wrote: post #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…

You can't apply the law retroactively. The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time. What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way. I'm more interested in damage co…

There is an asymmetry in your reasoning that I don't doubt is in many court decisions due to sovereign immunity, but need not be universal. If the law is declared unconstitutional, then that law was unconstitutional the whole time. Therefore there was no legal basis for the people-who-happened-to-be-employed-by-the-government to do what they did. And I'm pretty sure the laws against false imprisonment and extortion weren't passed yesterday.

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

#33

Post by beaglesss »

schoen wrote: post #15
ranger_danger wrote: post #4

> 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...

Sure but I learned that hard way when I got the sealed probable cause statement of my warrant, the detective claimed an unnamed officer claimed an unnamed dog alerted and that set off that intermediate standard.

So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.

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

#35

Post by mindslight »

qingcharles wrote: post #24
mindslight wrote: post #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…

Well, it's more complicated than that under federal law. If there is no completely specific SCOTUS ruling on the issue then it comes down to whether there is a published opinion by the Circuit Court in the government official's area. If there is, then they are expected to have read it and taken it into account when they acted. If they violate that opinion then they are liable. You can only be civil liable for these s…

Sure, you're talking about legally what is, due to the concepts of sovereign immunity and more specifically qualified immunity. My point is that the concept of sovereign immunity itself needs to be drastically curtailed (to the point that qualified immunity would be moot).

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

#36

Post by JumpCrisscross »

BenFranklin100 wrote: post #10
fbdab103 wrote: 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?

A textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment. I don’t think we have much to worry about on this topic from the current court.

> textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment

Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)

Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.

[1] https://en.wikipedia.org/wiki/Originalism

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

#37

Post by JumpCrisscross »

woleium wrote: post #34

They can still get your texts and contacts and call history from your car though. In many cars it syncs.

> They can still get your texts and contacts and call history from your car though. In many cars it syncs

Source? If so, that's a privacy boon for CarPlay and Android Auto.

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

#38

Post by chatmasta »

woleium wrote: post #34

They can still get your texts and contacts and call history from your car though. In many cars it syncs.

Is it possible to enable CarPlay but only for Google Maps? It’s so annoying that it seems to be all or nothing.

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

#39

Post by juanani »

mindslight wrote: post #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…

[dead]

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

#40

Post by BenFranklin100 »

JumpCrisscross wrote: post #36
BenFranklin100 wrote: post #10

Earlier quoted context omitted.

A textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment. I don’t think we have much to worry about on this topic from the current court.

> textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to t…

Textualist/originalist a nit in the current context; neither are likely to overturn the case in question. Thanks for the clarification though.
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