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Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

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Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#31

Post by ars »

MaupitiBlue wrote: post #7

Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge. Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.

https://en.wikipedia.org/wiki/Denise_J._Casper Obama Judge.

But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#32

Post by umvi »

Fellshard wrote: post #12

Open question, here: Doesn't this backfire and make TSA more likely to operate on the basis of profiling alone? What makes a traveler suspect? This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more c…

Unpopular opinion: why is profiling bad in context of airplane security?

If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency.

I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#33

Post by meroes »

ISL wrote: post #25
csours wrote: post #17

Earlier quoted context omitted.

I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. https://www.aclu.org/other/constitution-100-mile-border-zone

And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.

I cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#36

Post by dragonwriter »

MaupitiBlue wrote: post #7

Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge. Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.

> That's been the common law since King Tut.

Common law started long after King Tut, and in any case the Constitution isn't overridden by common law where they conflict. While this particular issue has been controversial, there idea that you have no rights at the border is unsupportable either in the text of the Constitution or the case law, and you should feel cheated that you had two professors that did such an inexcusably bad job of explaining the law, if your description of their lessons is correct.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#38

Post by c3534l »

JumpCrisscross wrote: post #6
theandrewbailey wrote: post #5

OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.

> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? The same thing that stops all tyranny. A vigilant and engaged citizen body. Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.

So we're doomed, then.

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#39

Post by papln »

Finnucane wrote: post #28
tus88 wrote: post #20

But are travelers (foreigners) part of "the people"?

If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)

That's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous.

https://www.senate.gov/civics/constitution_item/constitution...

'People' have rights:

> the right of the people peaceably to assemble

> the right of the people to keep and bear Arms,

> the right of the people to be secure in their persons, houses, papers, and effects

> other [right]s retained by the people.

> [powers] are reserved to the States respectively, or to the people.

'People' usually means 'voters':

> chosen every second Year by the People of the several States

> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,

> the people fill the vacancies by election as the legislature may direct.

Government is made of 'citizens':

> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,

[etc for Senator, President]

and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:

> judicial Power shall extend to all Cases ... between Citizens and ...

> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.

> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

and makes the most interesting statement about the rights of a 'person'

> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.

You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).

Re: Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

#40

Post by turc1656 »

CharlesColeman wrote: post #27
csours wrote: post #17

Earlier quoted context omitted.

I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. https://www.aclu.org/other/constitution-100-mile-border-zone

> I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. It sounds like this recent ruling may have rendered that page out of date. From your link: > According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a…

"It sounds like this recent ruling may have rendered that page out of date."

Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.

The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.

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