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EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
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Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#22This is even more important than it sounds because the US federal goverment considers 100 miles inland from any international border (including the great lakes, etc) as being "the border". And that is where 80% of the people in the USA live.
That's incorrect, or at best misleadingly incomplete. 8 USC §1357(a) authorizes border agents to, "(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access t…
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Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#23This defendant was convicted of possessing CSAM. Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible. Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a cou…
Ensuring due process before the law, regardless of the charge, is of course the whole reason for having a bill of rights in the first place.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#24This defendant was convicted of possessing CSAM. Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible. Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a cou…
I wasn't familiar with the acronym, therefore here you go: CSAM = Child Sexual Abuse Material.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#25This defendant was convicted of possessing CSAM. Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible. Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a cou…
> Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible.
Not always. Often times prosecutors pick cases with bad fact patterns to be test cases when they want to attack a right. A recent example is Biden DoJ choosing to take US v Rahimi to SCOTUS in an attempt to wheel back the NYSRPA v Bruen decision.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#26This is even more important than it sounds because the US federal goverment considers 100 miles inland from any international border (including the great lakes, etc) as being "the border". And that is where 80% of the people in the USA live.
There's Supreme Court precedent establishing that this isn't the case. ACLU itself had backed off it, last I checked, but since they used it for a very long time in fundraising, people will never, ever stop believing that 80% of the United States lives in a "Constitution-free zone". You cannot in fact be border-searched on the streets of Chicago; in fact, you can't even be border-searched at a lawful fixed immigratio…
> There's Supreme Court precedent establishing that this isn't the case.
This? https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... or is there newer now?
> ACLU itself had backed off it, last I checked
They did, the current page greatly narrows the scope of their border-zone guidance to the SCOTUS case I linked before: https://www.aclu.org/know-your-rights/border-zone
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#27This defendant was convicted of possessing CSAM. Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible. Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a cou…
Ensuring due process before the law, regardless of the charge, is of course the whole reason for having a bill of rights in the first place.
What you say seems true. But a comment - there are more effective ways to achieve it than a bill of rights. Australia doesn’t have a bill of rights but does have decent due process, as a result of deliberate legislation. The bill of rights leads to the US Supreme Court being highly politicised because it is a nasty undemocratic backdoor to synthetic legislation. Australia does not have a politicised high court.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#28Earlier quoted context omitted.
I'm reading the statute this comes from [0] and its associated definitions [1] but I don't see that it's as bad as you made it sound. (I don't love it, still.) The 100 mile "reasonable distance" is used to define where vessels and vehicles may be searched for aliens. But the warrantless search may only be applied to persons seeking admission for whom an officer has suspicion of reasonable cause for denying the person…
https://en.wikipedia.org/wiki/United_States_Border_Patrol_in... > The U.S. Border Patrol has stated: "Although motorists are not legally required to answer the questions 'Are you a U.S. citizen, and where are you headed?' they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S." I'm not convinced "the la…
> I'm not convinced "the law says you can't do that" is super meaningful in 2026.
Exactly. Everyone reading extremely fine distinctions into the relevant laws should at least do the work of also showing that those laws are currently applied in the manner they imply. To do otherwise is to speculate on how the law would be applied in a country operating under the rule of law, and that’s of little immediate application.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#29The trial court judge's take on the motion to suppress: https://storage.courtlistener.com/recap/gov.uscourts.vaed.55... It's a tough call. On one hand, the feds were really reaching by singling out the defendant for inspection based on: 1) a vague notion that South America is a higher risk of CSAM and sex trafficking (the government's CBP witness couldn't even say that that background CSAM rate in the countries the d…
south america is also a high risk of empanadas.
Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant
#30Earlier quoted context omitted.
I'm reading the statute this comes from [0] and its associated definitions [1] but I don't see that it's as bad as you made it sound. (I don't love it, still.) The 100 mile "reasonable distance" is used to define where vessels and vehicles may be searched for aliens. But the warrantless search may only be applied to persons seeking admission for whom an officer has suspicion of reasonable cause for denying the person…
https://en.wikipedia.org/wiki/United_States_Border_Patrol_in... > The U.S. Border Patrol has stated: "Although motorists are not legally required to answer the questions 'Are you a U.S. citizen, and where are you headed?' they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S." I'm not convinced "the la…
> I'm not convinced "the law says you can't do that" is super meaningful in 2026.
In fact, we're finding out very quickly that "what the government can do" is in practice, only limited by the rest of the government's willingness to push back. The set of things grows every time the government tries something new and receives no push back from the other two branches of government that are captured by the same political party.