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A US Federal Court Finds Suspicionless Searches of Phones at the Border is Illegal (techcrunch.com) 127

Posted by msmash from the know-your-boundaries dept.
A federal court in Boston has ruled that the government is not allowed to search travelers' phones or other electronic devices at the U.S. border without first having reasonable suspicion of a crime. From a report: That's a significant victory for civil liberties advocates, who say the government's own rules allowing its border agents to search electronic devices at the border without a warrant are unconstitutional. The court said that the government's policies on warrantless searches of devices without reasonable suspicion "violate the Fourth Amendment," which provides constitutional protections against warrantless searches and seizures. The case was brought by 11 travelers -- ten of which are U.S. citizens -- with support from the American Civil Liberties Union and the Electronic Frontier Foundation, who said border agents searched their smartphones and laptops without a warrant or any suspicion of wrongdoing or criminal activity. The border remains a bizarre legal grey area, where the government asserts powers that it cannot claim against citizens or residents within the United States but citizens and travelers are not afforded all of their rights as if they were on U.S. soil. The government has long said it doesn't need a warrant to search devices at the border.
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A US Federal Court Finds Suspicionless Searches of Phones at the Border is Illegal More

A US Federal Court Finds Suspicionless Searches of Phones at the Border is Illegal

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  • Crossing the border is good enough (Score:1, Insightful)

    by Anonymous Coward

    What were you doing? Where did you stay? Who did you talk to? All these things are reasonable suspicion of a crime.

    • Re: (Score:2, Funny)

      by Anonymous Coward

      I mean, anyone who voluntarily wants to leave The Greatest Nation on Earth, however temporarily, must be up to no good. Why would you want to do business with smelly foreigners? Why would you want to visit heathen lands?

      • Also, isn't IM'ing while Black a crime in the US?

      • Re: (Score:2, Troll)

        by BarbaraHudson ( 3785311 )
        I agree. Trump wanting to visit Russia is VERY suspect. Same with North Korea. Probably checking out bolt holes that don't have an extradition treaty.
      • I don't see what the Australian Border Security exit interviews have to do with this...

        Oh, wait, you said "nation" not "country". All good, carry on. Win lots of World Series things and stuff

      • Re:Crossing the border is good enough (Score:4, Interesting)

        by ShanghaiBill ( 739463 ) on Wednesday November 13, 2019 @01:37AM (#59409172)

        I was searched when returning to the US. They asked for the passwords to my cell phone and laptop. I refused, so they confiscated my devices. They were returned 4 weeks later. DHS sent them to the local police, who hand-delivered them to my house. DHS told me that they had not been able to read any data.

        I was also detained for about an hour. During that time I overheard several conversations between DHS agents and learned that they have much greater difficulty hacking in if the devices are POWERED OFF completely. Apparently, if you turn on your phone, log in, and then log out, then they can scan the RAM for either the password or the internal state of the login program.

        So always backup your data to the cloud before traveling, and then power down your devices before going through customs.

        • Re: (Score:2)

          by yacc143 ( 975862 )

          Cool, so you were out of your devices for 4 weeks. Getting replacement devices was probably a great and cheap experience, right?

          • Re:Crossing the border is good enough (Score:4, Informative)

            by ShanghaiBill ( 739463 ) on Wednesday November 13, 2019 @06:37AM (#59409446)

            Getting replacement devices was probably a great and cheap experience, right?

            I bought a cheap phone to use temporarily. I had an older laptop and used that until my devices were returned.

            I had no idea how long they were going to hold them. I just received a call from the police one morning, and an hour later they brought them to my house.

    • What were you doing?

      Standing in line.

      Where did you stay?

      Right over there.

      Who did you talk to?

      You and the other people in line.

    • Re: (Score:2)

      by gl4ss ( 559668 )

      since when are the two latter ones of those incriminating and suspicious? they're not reasonable suspicion of crime any more than that having a computer at home is reasonable suspicion that you're using it for copyright infringement.

      and the "what were you doing" part is not reasonable either. everybody is doing something all the time. you can't just suspect people for doing stuff purely for existing.

      it's pretty simple, if your blanket suspicion is targeted at _everyone_ then it's simply not targeted at any

    • Re: (Score:2)

      by Holi ( 250190 )
      The constitution makes no exceptions for the border and it is very clear about the limits of the government.

  • It is about time (Score:5, Insightful)

    by LazarusQLong ( 5486838 ) on Tuesday November 12, 2019 @05:34PM (#59408016)
    The Constitution is not gray at all here, why the border patrol asserted this power is beyond me. Thankfully, only 18 years later, a US Court has chosen to hear this case. US Citizens should never be subject to any process from any governmental body which is counter to the Bill of Rights as interpreted by Law and the Legislature.

    • US Citizens should never be subject to any process from any governmental body which is counter to the Bill of Rights as interpreted by Law and the Legislature.

      Unfortunately, the Constitution has been perverted by interpretation. This is one case of such perversion.

      The case was brought by 11 travelers -- ten of which are U.S. citizens

    • why the border patrol asserted this power is beyond me.

      The key there is the word "power."

      BTW, I like the Heinlein reference, if that's what it is.

    • I don't think the border patrol should be searching devices. I do understand why they tried it.

      Cops can't just randomly stop people inside the US and start asking questions (not any more than you can stop me, anyway). On the other hand, the most important thing defining a country is control over territory - the ability to decide who enters and who doesn't. The right to stop people at the border is essential to having a country in the first place - we don't allow the Mexican army to come across whenever t

      • Cops can't just randomly stop people inside the US and start asking questions ...

        They can't?

        They tried, it didn't work out so well.

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

        https://eji.org/news/new-york-... [eji.org]

        Just as i wouldn't assume i could walk into another country and start living there to be acceptable, I don't think it should be acceptable here either. There is a reason it's called "illegal" immigration.

        But instead of building detention centers , and separating children from their parents we should be focusing on effectively and ethically creating a path to legal entry. It would probably loo

        • Improving legal immigration is the best plan. Eliminate per-country quotas, and establish a set criteria for entry (points system) that anyone can use. Like Canada or Australia.
          That said, child separation ended - they're now detained together, which is why the complaint shifted to "kids in cages". It sucks, but no one is offering a better alternative for dealing with people who just show up. There's not enough space, we're not allowed to deport anyone until they've been rejected, and letting everyone in

    • Re:It is about time (Score:4, Interesting)

      by Solandri ( 704621 ) on Tuesday November 12, 2019 @08:42PM (#59408608)

      The Constitution is not gray at all here, why the border patrol asserted this power is beyond me.

      Because the Constitution does not apply outside U.S. territory, and being held up at the border prior to entry is by definition not yet being in U.S. territory. That's why Bush put a terrorist prison camp in Guantanamo Bay - because it wasn't U.S. territory, it was Cuban territory. In that way, he was hoping to avoid giving the prisoners U.S. Constitutional protection. (The SCotUS eventually decided that although it was Cuban territory, it was controlled sufficiently by the U.S. government as if it were U.S. territory, so that the prisoners were entitled to Constitutional protections. That's when they started permanently holding captured Taliban and ISIL in prisons in Iraq and Afghanistan instead.)

      There is zero expectation of privacy for a foreign national trying to enter the U.S. If the border patrol wants to make it a policy to inspect their phones, there's nothing in the Constitution which prohibits that. All countries assert this right at the border, as a condition of entry (though they only exercise it on a case-by-case basis). The thing in question here is whether U.S. Citizens are entitled to Constitutional protection when they run across the U.S. government while outside the U.S. That is, whether the Constitutional protections follow them (though obviously only the U.S. government is bound by them) when they're outside U.S. territory. I'm inclined to say they do, but CBP is trying to argue that they don't.

      (There's another gray area at immigration at airports. While technically they're entirely in U.S. territory, because of the nature of air travel people are treated as if they have not yet entered the U.S. until they pass through immigration. CBP has overplayed this to claim a 100 mile buffer around international airports where Constitutional protections does not apply. There's no way that would ever hold up in court. But the claim that non-citizens arriving at airports who haven't yet passed through immigration are not entitled to Constitutional protection probably would hold up.)

      On a meta level, the bigger question is whether your government should be bound by its philosophies when it acts outside its borders. Ideally the answer would be yes, but it's a race to the bottom situation. Doing so puts you at a hopeless disadvantage against other countries who don't hold with this philosophy, or whose innate policies are so socially hostile in the first place that they give up nothing by applying the same standards outside their country as inside.

      • Re: (Score:3)

        by ceoyoyo ( 59147 )

        There is zero expectation of privacy for a foreign national trying to enter the U.S. If the border patrol wants to make it a policy to inspect their phones, there's nothing in the Constitution which prohibits that. All countries assert this right at the border, as a condition of entry (though they only exercise it on a case-by-case basis).

        This isn't true. The Canadian constitution (and other laws), for example, applies to all persons in Canada, citizens or not, including those crossing the border. There ar

      • Re: (Score:2)

        by dryeo ( 100693 )

        I've been to the USA, you cross the border and then stop at a border post while in the USA. Not many countries routinely put there border posts in another country.
        And what's this thing about US citizens being special? I've read the American Constitution and the only special rights citizens have are political, as in holding office. Even voting isn't Constitutionally limited to citizens, which isn't a surprise as one of the founding principles was "no taxation without representation"

      • Because the Constitution does not apply outside U.S. territory, and being held up at the border prior to entry is by definition not yet being in U.S. territory.

        These searches take place on US territory. If you doubt that, then punch one of the customs officers and see if US laws do actually apply.

        US laws derive their authority from the Constitution. If the Constitution doesn't apply, then neither do any US laws.

      • If they are not yet being in the U.S. territory at the border then the U.S. has no jurisdiction there in the first place.

      • Unfortunately, I think the underlying issue is the gathering of our 'papers' and increased generation of. The increase in data generation has been exponential as has availability.

        Now that one can access financial records, entire text logs, emails and all the HIPPA-covered content within from a phone, a boundary must be made between the data located on-device and data available through network access of the device. Spatial location of the bits merits consideration.

        I believe this distinction must be made

    • US Citizens should never be subject to any process from any governmental body which is counter to the Bill of Rights as interpreted by Law and the Legislature.

      s/US Citizens/Persons

      Constitutional rights apply to all people within US jurisdiction - Foreigners within the US are also protected against unreasonable search, etc (yes even "illegal aliens").

    • Comment removed based on user account deletion

  • Don't Worry... (Score:4, Insightful)

    by SirAstral ( 1349985 ) on Tuesday November 12, 2019 @05:39PM (#59408030)

    It will likely be overturned by the very pro-police state SCOTUS. But it is nice to see a good ruling that is actually in line with the Constitution for a change.

    It is not legal for the US police to confiscate or search any property of a Citizens on the border or on the Moon. The Constitution does not say that this applies only inside of the US Borders. But many people like to perpetuate that ignorance. Sure the US cannot enforce law outside of its borders due to sovereignty issues but when dealing with its citizens the constitution is always applicable no matter the location.

    • Well crap... "without a warrant" is supposed to be in there.

      No "suspicion" does not past muster with the 4th either. The Constitution does not allow for "suspicion" as a valid short circuit of the 4th.

      You either have a warrant or you don't. And it is technically required for all police activity, but no one cares do they? Political expedience is the winner and liberty the sacrifice.

      • > You either have a warrant or you don't. And it is technically required for all police activity, but no one cares do they?

        The fourth amendment bars "unreasonable" searches. Full stop.
        It does not say a warrant is required for anything.

        A warrant is one way for a court to decide ahead of time that a search is reasonable, that it comports with the 4th. By getting a warrant, you largely avoid arguing about reasonableness later. The warrant (pre-approval) option also allows adjusting the parameters of the s

  • For once The Courts did good instead of rule in favor of Big Brother or Big Corporations.

  • A good start, but more is needed (Score:3)

    by Chromal ( 56550 ) on Tuesday November 12, 2019 @05:53PM (#59408066)
    I'd like to see reparations to the individuals who were wrongfully harassed and detained by the US Federal Government, and also I'd like to see prosecutions and destroyed careers for the rogue US Federal agents responsible for perpetuating this wrongful travesty upon the public. Send a withering chilling warning to others who would dare again defy the US Constitution and Universal Human Rights.

    • No, what is done is done. Now "current" breaches of said protection reparations for them yes, but it's short sighted to work through history to right every wrong that goes on because that means the people today are now paying for the crimes of yesterday and that is not fair in many cases either.

      But I do agree that all federal agents involved lose their jobs and face possible criminal prosecution no matter how long it takes for their unconstitutional crimes to come back to haunt them, even if they are 90 ye

      • I get the feeling but I think you take it a bit far in wanting to punish the officials even if it takes decades to find them guilty of some transgression. That’s pretty much putting them on the same level as Nazis or capital criminals in terms of how they’ll be treated and I’m not sure if it’s good to have low level officials so worried about prosecution 50 years from now that they completely fail to do their jobs.

        Yeah, yeah, a government should be afraid of its citizens, but let

    • Re: (Score:3)

      by jythie ( 914043 )
      Unfortunately, one of the reasons we see stuff like this is it tends to be rewarded. Those agents and DAs are in for long and profitable careers with die-hard supporters.

  • It has always been illegal and unwarranted (Score:4, Insightful)

    by WillAffleckUW ( 858324 ) on Tuesday November 12, 2019 @05:56PM (#59408078) Homepage Journal

    And we've always known it was Unconstitutional.

    • And we've always known it was Unconstitutional.

      What you did was always suspect it was unconstitutional.. It isn't actually unconstitutional until the court says so.

      • No, I always clearly informed them it was Unconstitutional each time I crossed the border.
        I cited exactly why.
        But thanks for playing.

        Remember: it's almost always Seattle that stands up for your rights, not the other places, because they don't really care about you.

  • That it had to go to court to be determined to be illegal.

  • The border search exception is well established law. I expect this district court decision to be overturned by the First Circuit Court of Appeals. In the unlikely event they don't overturn this, the Supreme Court most definitely will.

    • We can only hope you are right

      • Yes, we can only hope govenment can work around the 4th Amendment just because you happen to be carrying 90% of your modern papers with you on your phone. :rollseyes:

    • Re: (Score:3, Insightful)

      by beachmike ( 724754 )
      Bullshit. It is NOT "well established law." The US Constitution covers ALL of the United States. Show me where is says there's an exception for regions near the border. You can't. The 4th Amendment is applicable EVERYWHERE in the USA. END OF STORY
    • Comment removed based on user account deletion

    • The border search exception is in furtherance of preventing contraband and hidden aliens. It doesn't appear that is what they are looking for in your phone or laptop.

      • Yes. Moreover, contrary to some posters here, the prohibition on 4th Amendment searches of your papers isn't to let crooks get away with something (the idiotic "if you have nothing to hide...") but rather to deny potential tyrants the power to search through an uppity opponent's papers at will looking for something, even a legitimately illegal thing, to tag then with.

  • The government has long said it doesn't need a warrant to search devices at the border.

    The government can say whatever it wants but that doesn't make their actions constitutional.

    • People didn't carry their entire financial and other paperwork lives with them before, either.

      This isn't about basic border searches for contraband. It's about changing reality of where your 4th Amendment "papers" reside. Hint: They need not be in your house.

      The People carry their rights with them wherever they go. Currently this is pissing off law and order border search right wing types.

      A few years back it pissed off left wingers in the Citizens United decision, where the SC ruled The People carry the

      • One of the good things we can hope will come ahead is that people will realize what a poor practice it is to carry their entire financial and other paperwork with them everywhere.

        It's a cell phone. It's a terminal. Your 'important data' should be housed on an encrypted drive in your house.

  • The "Border" (Score:3)

    by meerling ( 1487879 ) on Tuesday November 12, 2019 @06:05PM (#59408112)
    What you consider the "border", and what the law considers the enforcement are for "the border", are two very different things.
    It includes 2/3rds of the populace of the United States, and even multiple states are entirely "border" as far as the government cares.

    Here's an article that even includes a map of the US showing the "border" area.
    So yes, it's rife for abuse, and like all things that can be abused, it is.

    https://www.cnn.com/2018/05/23/us/border-zone-immigration-checks/index.html
    • does that mean we can give it to Mexico? I think that worked in our dispute with Canada over Pottsylvania [wikipedia.org]

    • Re: (Score:1)

      by AHuxley ( 892839 )
      Thats the immigration checks, K9 alert and a chat down zone.
      Every person and passenger is under CCTV. Their license plate back and front is collected.
      Movements over days, weeks, years get tracked.
      Very different from entering the USA.
      A simple question when asked to find an illegal migrant in a lie.
      K9 use is very legal when the dog alerts to what it finds. Just like all other K9 use everyday in the USA.
      A chat down is not illegal in the USA. The gov has the freedom to ask. The citizen has their right

    • Here's an article that even includes a map of the US showing the "border" area.

      It's bigger than that. It also includes every international airport, and by some court interpretations, everywhere within 100 miles of an international airport. By the latter definition, some remote areas in the midwest and mountain west are the only parts of the US that aren't "border".

  • just another ruling the border patrol is going to ignore.

  • "That’s a significant victory for civil liberties advocates, who say the government’s own rules allowing its border agents to search electronic devices at the border without a warrant are unconstitutional."

    "The government's own rules" That's the problem right there. We don't live in a free society when one group is permitted to ignore or rewrite the rules everyone else must abide by.

  • When CBP personnel feel like searching your laptop or device at the border, they will now have to claim "reasonable suspicion." If you think their claim is baseless, you are invited to sue the government. Maybe you have the resources to try this, and maybe you don't.

  • Omg, a step towards civilisation. Next step... being molested (a bit) less by TSA!

  • This does nothing to stop warrantless searches and actually blesses them with the full power of the judicial branch.

    Now there will never be a warrant required to perform one of these warrantless searches, as Reasonable Suspicion is not sufficient to justify one.

  • Don't talk (Score:2, Interesting)

    by fred911 ( 83970 )

    It's a pretty simple concept, never talk to police or federal agents. A US citizen must submit to search for contraband and lying to a the police or a federal agent is a crime. Not answering questions is never a reason to prevent a US citizen from entry. Submit to search, and don't answer questions. Pretty simple. The minute you answer a question you are participating in an investigation of yourself, how stupid can you be.

    Where did you go, where have you been?
    It's all in my passport.
    What did you do?
    I travel

  • https://mobile.slashdot.org/st... [slashdot.org]

    [quote]In the new case, Kolsuz (PDF), the Fourth Circuit agrees with the Ninth Circuit that at least some suspicion is required for a forensic search of a cell phone seized at the border. [/quote]

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