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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

#31

Post by ryandrake »

tptacek wrote: post #17
superkuh wrote: post #3

This 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…

The words of the law don't seem to matter much anymore. If the government does something, and they receive no push back (either from the people supposed to be checking-and-balancing, or from the victim in the form of successful lawsuits), then they, for all intents and purposes, can in practice do that thing.

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#32

Post by limagnolia »

harshreality wrote: post #14

The 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…

If the defendant consented, why is this even in dispute? Are they arguing the defendants consent was invalid?

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#33

Post by voxic11 »

sjtgraham wrote: post #25
sowbug wrote: post #12

This 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…

Hence the saying "hard cases make bad law"

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#34

Post by zahma »

sowbug wrote: post #12

This 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’d take it one step further and say they deserve to have their rights respected as well and the outcome pursued by law to reinforce the ethics undergirding law. It seems like this person was a target and they would have eventually got him — this was simply an expedient shortcut.

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#35

Post by stackghost »

cturner wrote: post #27
stackghost wrote: post #23

Earlier quoted context omitted.

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.

I'm Canadian, and as a fellow commonwealth citizen I don't think relying on common law precedent is stable. The common law, after all, is just whatever a judge says it is, and judges can be bought or unduly influenced.

As we're seeing in the United States, the Rule of Law itself is being fundamentally eroded. Laws in the USA are worth essentially nothing now, because the Executive Branch is brazenly and openly ignoring the law and Congress is either too inept or too corrupt to do anything about it. That culture of lawlessness is not going to just go away. It's already started and will continue to "trickle down".

What's more, neither the USA nor either of our countries are immune from political appointment of justices, and it's my understanding that Australia has in fact had some supreme court justices who were previously parliamentarians (sorry if these are not the correct terms), so that seems politically-motivated to me. The USA is merely ahead of us in crumbling, but I think we're in trouble too because their fucked-up political culture is so insidious in its spreading.

We've seen similar in Britain, with its much-vaunted "uncodified constitution". These systems, much like the common law itself, only work when everyone's more or less on the same page.

But when you have an entire political party that revels in shattering constitutional/governmental norms and conventions to the detriment of its perceived political enemies, the whole system gets ugly real quick.

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#36

Post by egorfine »

simonebrunozzi wrote: post #24
sowbug wrote: post #12

This 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.

[flagged]

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#38

Post by autoexec »

stackghost wrote: post #35
cturner wrote: post #27

Earlier quoted context omitted.

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.

I'm Canadian, and as a fellow commonwealth citizen I don't think relying on common law precedent is stable. The common law, after all, is just whatever a judge says it is, and judges can be bought or unduly influenced. As we're seeing in the United States, the Rule of Law itself is being fundamentally eroded. Laws in the USA are worth essentially nothing now, because the Executive Branch is brazenly and openly ignori…

> That culture of lawlessness is not going to just go away. It's already started and will continue to "trickle down".

Only for as long as it's allowed to continue. When the people who are acting lawlessly and those enabling it are finally held accountable and an example is made of them things can get back under control. It's just a question of how long it takes for accountability to happen and how painful that process will be for the rest of us. I'm still hoping it'll be as quick and painless as possible, but the longer it goes on the less likely that seems.

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#39

Post by superkuh »

TimorousBestie wrote: post #28
ceejayoz wrote: post #7

Earlier quoted context omitted.

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.

> 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.

It's not speculation. It's lived experience. And while I understand most probably don't have it, it doesn't invalidate it.

Re: EFF to 4th Circuit: Electronic Device Searches at the Border Require a Warrant

#40

Post by harshreality »

limagnolia wrote: post #32
harshreality wrote: post #14

The 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…

If the defendant consented, why is this even in dispute? Are they arguing the defendants consent was invalid?

I think the question is whether border patrol can decide ahead of time to do a targeted search for a specific crime, and specifically search phones, which everyone understands and acknowledges store a massive amount of information about people, without reasonable suspicion of that particular crime.

Extended questioning, a pat-down or other physical search, and cursory search of luggage for physical contraband (all at international port of entry, of course) is still not the same as scrolling through someone's media gallery and files.

Correction to my previous (GP) post above: The miranda warning and waiver of rights was after the consensual search of his phones. That could be very important. If law enforcement suspects you of a specific thing enough to want to search your phone, but they don't have enough evidence that you're a suspect who merits a miranda warning, what are they doing asking to search your phone?

While everyone can save themselves from this scenario by saying no to searches, it's obvious that this was a fishing expedition. I think EFF should (but probably won't) prevail on the theory that phones have too much of our lives to be allowed to be searched like that, even voluntarily.

Suppose cops went door to door asking to enter and take a look around for contraband. I doubt courts would uphold cops' power to ask to look at people's phones (maybe asking for a cup of coffee while they do it). Regardless of whether the individual consents, it's too much of a breach of privacy without any particular reasonable suspicion of anything in particular.

Case law seems to focus on length and intrusiveness of temporary detention. I'd say this was too lengthy, too specific, and too intrusive for the measly "evidence" (coming from Colombia, and a FinCEN report that didn't allege any impropriety, just financial transfer(s) to a minor) they purported to have.

It's possible this was parallel construction.

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