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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

#81

Post by jkaplowitz »

usr1106 wrote: post #70
OptionOfT wrote: post #52

Does this apply only to U.S. Citizens? Or does it apply to everybody? And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?

The article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or Nor…

The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote).

At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.

Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.

It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.

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

#82

Post by ushiroda80 »

qingcharles wrote: post #19
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?

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): htt…

The Supreme Court has been nearly perfectly consistently shitty in the last 5 years.

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

#83

Post by jkaplowitz »

john_the_writer wrote: post #72
OptionOfT wrote: post #52

Does this apply only to U.S. Citizens? Or does it apply to everybody? And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?

Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments. And with the data sharing, there's nothing stopping Canada from sharing with the US.

True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.

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

#84

Post by dmurray »

qingcharles wrote: post #17
eurleif wrote: post #7

Earlier quoted context omitted.

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 fi…

> the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.

I would say the court is generally less defendant-friendly and less government-friendly.

Maybe in the narrow case where government = armed law enforcement, more government- friendly.

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

#85

Post by ahdlakg »

It is amazing how the U.S. consistently gets away with this and is still perceived as a free country.

In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.

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

#86

Post by Havoc »

dheera wrote: post #62
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?

Use the most obscure fork of Android possible, learn the most obscure language in Africa and set your UI to that language, ...

That sounds like a good recipe for getting pulled for secondary screening

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

#88

Post by nmfisher »

ahdlakg wrote: post #85

It is amazing how the U.S. consistently gets away with this and is still perceived as a free country. In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.

Australia does this too.

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

#89

Post by Someone1234 »

ahdlakg wrote: post #85

It is amazing how the U.S. consistently gets away with this and is still perceived as a free country. In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.

The US also asks for a list of social media accounts, which is creepy.

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

#90

Post by codr7 »

beaglesss wrote: post #33
schoen wrote: post #15

Earlier quoted context omitted.

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.

Dogs fill several functions in that context, not that different from how lie detectors are used to put on a good show actually.
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