[HN Gopher] Federal Judge Makes History: Border Searches of Cell...
___________________________________________________________________
Federal Judge Makes History: Border Searches of Cell Phones Require
Warrants
Author : panarky
Score : 408 points
Date : 2023-05-30 20:20 UTC (2 hours ago)
(HTM) web link (www.eff.org)
(TXT) w3m dump (www.eff.org)
| yieldcrv wrote:
| > The Supreme Court has not yet considered the application of the
| border search exception to smartphones, laptops, and other
| electronic devices
|
| We need additional ways to create standing in courts
|
| It is ridiculous that a constitutionally contradictory law or
| policy can remain in the books for decades, just because the
| right rich person hasn't been inconvenienced enough by the law to
| challenge it
|
| In some countries, the President can get a law evaluated for its
| constitutionality as an additional choice than just vetoing or
| signing. We could start there.
| BenFranklin100 wrote:
| Great news. How does this affect the 100 mile border zone?
| Technically, if one is within 100 miles of the border, the
| federal government asserts certain rights to conduct warrantless
| stops and searches. See:
|
| https://www.aclu.org/know-your-rights/border-zone
|
| I find this sort of federal government overreach absurd. I hope
| this ruling affects this as well.
| tptacek wrote:
| There is no such zone. That page is misleading. There is SCOTUS
| case law back to the 1970s establishing that a border search
| must have a nexus to an actual border crossing; you can't
| simply search anybody within some distance of a border.
| anigbrowl wrote:
| Please advise CBP of this, because that particular part of
| the executive branch (and the DoJ) have a more maximalist
| take on the issue, notwithstanding the tenuous legal
| foundations on which which their claims rest.
|
| https://elibrary.law.psu.edu/pslr/vol124/iss2/3/
| tptacek wrote:
| I'm reading this now and already you run into the issue of
| it claiming that Chicago would fall within this supposed
| extended border zone, despite not being anywhere close to
| 100 miles from 12 nautical miles from the baselines of the
| United States, per 8 CFR 287 (this is an analysis I've
| shoplifted from 'jcranmer).
|
| That said: the rotating CBP checkpoints around places like
| Tucson are, as this article observes, probably unlawful!
| You've got Almeida-Sanchez that says straight out that
| warrantless evidence collected from intrusive searches far
| from the border without any reasonable belief of a recent
| border crossing are inadmissible, and then you're left to
| figure out how to deal with the harassing impact of these
| checkpoints on locals.
|
| I'm not here to stick up for CBP. I've had only bad
| experiences with them. But also, I don't live within a 100
| mile "Constitution-free zone", no matter what ACLU may
| claim.
|
| Start on page 404 of this to see it basically reciting the
| same argument I'm making.
| calibas wrote:
| Fourth Amendment
|
| The right of the people to be secure in their persons, houses,
| papers, and effects, against unreasonable searches and seizures,
| shall not be violated, and no Warrants shall issue, but upon
| probable cause, supported by Oath or affirmation, and
| particularly describing the place to be searched, and the persons
| or things to be seized.
| tptacek wrote:
| A reminder here that our common understanding of the term
| "warrant" is not that of the 4th Amendment, and the
| Constitution has never forbade warrantless searches --- only
| "unreasonable" searches, where "unreasonable" is almost a term
| of art meaning "whatever judges agree to", and which currently
| capture a whole bunch of specific kinds of warrantless
| searches, like searches incident to arrest and searches at
| border crossings, many of which were also employed at the time
| of the founders.
|
| The warrant clause of the Fourth Amendment was a response to
| the "General Warrant", an instrument issued by the British
| government to local officials that was essentially a license to
| harass at will; that's why Constitutional warrants have to
| describe particular places, persons, and things (because that's
| what General Warrants didn't do).
| wordyskeleton wrote:
| I assume this only applies to citizens?
| sjtgraham wrote:
| IANAL but IIRC the definition of the constitutional "people" is
| broader than US citizens. SCOTUS has answered this question in
| connection with the 2nd amendment. I wasn't able to find the
| case but the meaning of "the people" is taken to mean members
| of the broader national community. People who have developed
| sufficient connection to the United States, e.g. Lawful
| Permanent Residents.
| lannisterstark wrote:
| As someone who lives in a border cities and crosses often, thank
| fuck.
|
| Now do "They can't make you sit in secondary area/room for two
| hours without looking at you."
| EA-3167 wrote:
| As someone far from any border, let me join in you a hearty
| "thank fuck" as well. This always seemed like a terrible and
| deeply unAmerican thing for the government to engage in. I'm
| all for oversight, including some that many find overbearing,
| but warrantless searches of your devices just for crossing a
| border is some post-9/11 hysterical nonsense.
| dylan604 wrote:
| You don't even have to be crossing a border. There's an area
| some 100 mile distance from the border that the CBP operates.
| It just so happens that a large percentage of the population
| resides in that area, so it can affect more people than
| immediately realized.
|
| https://www.aclu.org/know-your-rights/border-zone
| Zak wrote:
| The page you linked says that they need probable cause to
| search any property within the zone. That's different from
| when actually crossing a border, in which case property is
| generally subject to search without suspicion.
| dylan604 wrote:
| probable cause is whatever they say it is, so that's
| really not much of a show stopper. the only way you can
| prove it is not proper probable cause is through a
| lengthy (aka expensive) court battle after the fact.
| kube-system wrote:
| Going to court is the only way you can prove any legal
| wrongdoing made by anyone about anything.
| Matl wrote:
| Except 'probable cause' means that the search was in
| 'good faith' which is my understanding basically makes
| the officers involved practically immune, (even if you're
| awarded damages say), and at the very least makes it more
| likely to happen by them knowing they're off the hook
| either way.
| dylan604 wrote:
| sure, but leaning on probable cause to prevent the LEOs
| from doing something to you in the moment is not a sound
| practice. it will always be retrospective, and not
| everyone can afford to avail themselves of the legal
| remedy. the LEOs know this and behave accordingly
| Zak wrote:
| This is no worse (or better) than any other law
| enforcement agency. What was being suggested is that
| there's a 100 mile border zone in which CBP may legally
| conduct searches without probable cause like they can at
| a border crossing; that's not the case.
|
| The thing they can do that I find problematic is stop all
| traffic at a checkpoint and ask immigration-related
| questions without any suspicion whatsoever. This is
| conceptually similar to a DUI checkpoint, and I think the
| courts are wrong to allow either in the USA because they
| constitute a detention not based on reasonable,
| individualized suspicion of a crime.
| WillPostForFood wrote:
| It far predates 2001, key case law is from the 70's:
|
| https://www.lexisnexis.com/community/casebrief/p/casebrief-u.
| ..
| lannisterstark wrote:
| >some post-9/11 hysterical nonsense.
|
| That's because it is lol.
|
| Remember this incident? Fun stuff.
|
| https://web.archive.org/web/20230421210739/https://www.theat.
| ..
|
| "A NASA Engineer Was Required to Unlock His Phone at the
| Border
|
| A U.S.-born scientist was detained at the Houston airport
| until he gave customs agents the passcode to his work-issued
| device."
| ajsnigrutin wrote:
| How long can they detain you for?
|
| Foreigners i understand... either give the passcode or go
| back home... but local citizens?
|
| (i've argued more than once at my countries border, and
| there's not much that they can do)
| sidewndr46 wrote:
| Wouldn't that be a violation of NASA policy and possibly
| some other Federal agency policies?
| reaperman wrote:
| Yeah but kind of force majeure at that point.
| fishywang wrote:
| Because all international airports are "borders", and
| previously the warranty-less searches were permitted with
| something like "within 50 miles of a border", the majority
| people living in the US should say thank fuck.
| tptacek wrote:
| It has never been the case that 100 (or 50) mile ranges from
| the border are open to warrantless searches; it's a myth
| spread by a misleading bit of ACLU promo material.
| darth_avocado wrote:
| That's not true. CBP has plenty of permanent and many more
| tactical search checkpoints throughout the country where
| you are subject to search. Many of these are 70+ miles from
| the border.
|
| https://en.m.wikipedia.org/wiki/United_States_Border_Patrol
| _...
| tptacek wrote:
| They are allowed to stop people who have crossed the
| border at (often permanent) checkpoints many miles from
| the border. They can ask to search anybody! And within
| the ambit of their authority they can probably search
| with reasonable suspicion. It's not my claim that CBP
| can't search you anywhere but the actual border, but
| rather that the notion that everyone living within 100
| (or 50 or 12 nmi or whatever) miles from the border is
| subject to constant CBP search.
|
| If you check this in the search bar at the bottom of the
| page you'll see this has come up a bunch on HN (it's a
| lurid and exciting notion to toss around!) and there are
| SCOTUS cites in the results.
| stonogo wrote:
| Maybe you should tell the border patrol.
|
| https://help.cbp.gov/s/article/Article-1084?language=en_US
| tptacek wrote:
| [O]nly insofar as they involve a minimally intrusive
| "brief detention of travelers" with a "routine and
| limited inquiry into residence status" that maintains an
| immigration focus. Any secondary inspection (not a
| search) must be "made for the sole purpose of conducting
| a routine and limited inquiry into residence status that
| cannot feasibly be made of every motorist where the
| traffic is heavy." Further detention or questioning must
| be founded on reasonable suspicion of wrongdoing. Vehicle
| searches beyond what can be seen via ordinary visual
| inspection are not permitted without probable cause or
| consent that has been provided knowingly and voluntarily
| and without coercion.
|
| It is not my contention that CBP isn't abusing the law.
| I'm sure they are. Many CBP immigration stops apprehend
| no or single-digit unlawful immigrants while arresting
| dozens and dozens of citizens for things like suspected
| drug offenses. My contention --- well, not really mine so
| much as that of the Supreme Court and of law review
| articles about this case law --- is that what they're
| doing is plainly unlawful.
| dylan604 wrote:
| I just replied to a sibling about the CBP's 100 mile zone
| (i'll post here again). For some reason, the airports do not
| seem to be mapped as part of this 100 "inclusion" zone.
| Otherwise, the included population would approach 100%.
| That's a bit of trivia I've never seen addressed before, so
| adding that to the list of things that make you go hmmm
|
| https://www.aclu.org/know-your-rights/border-zone
| johnklos wrote:
| You mean authorities can't just invalidate our Fourth Amendment
| rights because they feel like it? Who'd have imagined?
| hayst4ck wrote:
| It's a literal national security issue.
|
| I know people who have two factor codes and password vaults on
| their phone's that if compromised by a competent attacker could
| compromise nearly every major corporation in America.
|
| Imagine if a foreign intelligence agency managed to get a border
| guard asset.
|
| Even from a reciprocity point of view, if we search other
| people's phones, that sets expectations that ours can get
| searched too. It's dangerous precedent all around.
| ilrwbwrkhv wrote:
| Fantastic fantastic news. As an American, private rights are
| paramount and any government interference should come with strict
| roadblocks and reasons.
| rootusrootus wrote:
| This is good, and I hope it stands. Once you demonstrate that you
| are in fact a citizen of the US, you cannot be denied entry, and
| IMO all the regular Constitutional protections should immediately
| apply.
| readthenotes1 wrote:
| " Once you demonstrate that you are in fact a citizen of the
| US, you cannot be denied entry, and IMO all the regular
| Constitutional protections should immediately apply."
|
| I am not a constitutional scholar, but very few of the rights
| given to the government specify citenzry as important. Most of
| the rights specified as not granted refer to people or persons,
| not citizens.
|
| So your sentence should be "once you demonstrate that you are
| in fact a person in the United States..."
| Georgelemental wrote:
| A non-citizen doesn't have any inherent right to enter the
| country _at all_. If they are allowed to, it 's a privilege
| generously granted by the state--and as a privilege, it's
| entirely conditional and revocable. That being said, guests
| of the country must always be treated fairly and honestly,
| just as you would treat a guest in your home.
| LastTrain wrote:
| You are almost entirely wrong, of course. Visitors in the
| US do indeed have rights.
| thrwawy74 wrote:
| For comradery, I'm loving where this is going. I do wish
| we more consciously accepted that all persons have
| inherent rights. Looking forward to a world gov that
| tries to do good things someday... a la Bicentennial Man.
| monkaiju wrote:
| According to the UN declaration of human rights, Article 13
| specifically, which the US signed onto, we actually
| shouldn't even be able to block people at the border.
|
| "Everyone has the right to freedom of movement and
| residence within the borders of each state."
| brewdad wrote:
| That says the opposite of your claim. "within the borders
| of each state" Once you wish to cross into another state
| (nation or country) your freedom of movement is subject
| to limitations
| aidenn0 wrote:
| You are misunderstanding that. It's "within the borders"
| not "across the borders." The second clause of Article 13
| grants rights to leave countries, and to return to "his"
| country, which implies a right to deny non-citizens
| entry.
|
| That countries can (as a rule) deny non-citizens entry
| for whatever reason they so desire should be obvious.
| brewdad wrote:
| Well technically, the border agent is in the United States.
| You, presenting your passport are outside the United States
| and requesting entry. This has consistently been the basis
| for the "border exception". By requesting entry, you place
| yourself under the jurisdiction of the border officer however
| you are not physically present in the US, so you do not
| benefit from its legal protections.
| dpifke wrote:
| So what country's laws apply if you kill the jerk who cut
| in front of you in the line to talk to the border officer?
| tptacek wrote:
| The border search privilege applied at the time of the
| founders, so it's hard to argue that it's constitutionally
| invalid. And, in fact, this ruling upholds the border search
| privilege; it just sets electronic devices outside of their
| reach.
| jamesdwilson wrote:
| serious q, i legit don't know about these things, what about
| that ambiguous gray area i see so-called freedom auditors use
| where they argue that the Agent has no reason to suspect they
| are not american, (and they repeat am i free to go/ am i being
| detained)
| rootusrootus wrote:
| The ID requirement to gain entry is fairly specific. I can't
| imagine CBP just letting someone through without it. I
| understand some people do the 'am I free to go' bit with
| local police, but that's after you're inside the country.
|
| To be clear, I think it's 100% okay for the border patrol to
| require proof of citizenship at the border. I just think that
| the moment you prove it, the border patrol becomes just like
| any other federal police force, no extra powers just because
| they're at the border.
| akomtu wrote:
| > can't imagine CBP just letting someone through without it
|
| Depends on the border that you're trying to cross.
| reaperman wrote:
| Obviously you can come back into the country without a
| passport/ID, it's just a hassle. It's not like they send
| you back and now you have no citizenship.
|
| They have a process for this, it just takes a long time to
| manually confirm you are who you say you are.
| CPLX wrote:
| In actual practice though they don't. If you walk across
| the bridge from Mexico after a night out 99 times out of
| 100 they'll just ask your citizenship verbally and if you
| speak English without an accent they wave you on.
| Arrath wrote:
| I can't honestly see how there is grey area, you're at a
| border checkpoint: show some form of identification either
| way?
|
| There is no requirement for an agent to assume your
| nationality and let you through, no? You still need to show
| your passport even when returning home.
|
| Of course, all this sovereign citizen nonsense ignores
| reality and tries to pursue (nonexistent) legal 'gotchas'
| like you're rules-lawyering your way into a 'rules as
| written' game breaking combo in Magic: The Gathering.
| jamesdwilson wrote:
| Well the evidence is there on youtube if you'd like, lots
| and lots of videos of border patrol letting people go who
| show no ID at all. Seems to support the auditor's POV.
|
| I have no dog in this fight, just an intellectual
| curiosity.
| flerchin wrote:
| This is at Border Patrol Interior checkpoints. At which
| you are not required to do anything except stop and ask
| them to let you leave.
| chasd00 wrote:
| Can confirm. I've been through a number of those
| checkpoints in SW Texas. You stop they ask a question or
| two and then you're waved through. I've never been asked
| to show ID. On one occasion they did have a dog walk
| around the car but I think that is done randomly.
|
| /before people ask: I'm white my wife is Mexican.
| rootusrootus wrote:
| I don't really trust YT as a source for any kind of
| facts. CBP is pretty specific about documentation
| required to enter the country. If you're a citizen and
| you lack any documentation, you're going to be sitting
| around for hours while they determine (to their
| satisfaction) that you're who you claim to be.
|
| It would also only really apply at a land crossing, I
| imagine. You can't even get on a plane that's entering
| the US without showing your passport at the departure
| gate. At that point your only option if you really are
| without documentation is to find the nearest US consulate
| and get some travel papers.
| dylan604 wrote:
| Yes, that sounds like horrible advice. Trust your legal
| standing to some video you saw on YT (said no lawyer
| ever).
| jamesdwilson wrote:
| Also I never said anything about sovereign citizens. I
| think many of these people are constitutionalists and
| libertarians.
| Arrath wrote:
| Fair, that was a knee-jerk reaction on my own part and
| I'll own that; that has just been my exposure and
| experience to questions in that vein so far in my life.
|
| In any case, the 'Freedom Auditor' concept mentioned in
| your initial comment sounds, to me, like the express line
| to "Please wait over here while I get my supervisor" from
| your CBP agent.
| SllX wrote:
| "Am I being detained?" is a bit of a meme/dog whistle
| associated with Sovereign Citizens so I was going to ask
| you about if "Freedom Auditors" is just another term for
| them up above until I saw this follow up comment; but
| Googling it just turned up First Amendment auditors which
| does not appear to be the same thing. Many of them are
| libertarians and _think_ they're Constitutionalists.
|
| Please clarify if I've got the wrong read on what you
| mean though.
| woah wrote:
| It's also a very basic question to ask. Once you have
| been arrested, there is a procedure to be followed and
| you will probably choose to get a lawyer. At the same
| time, they can't detain you for longer than is reasonable
| without officially arresting you. So some may try to
| exploit the ambiguity of a situation to make you think
| that you are not free to leave, but without explicitly
| detaining you. Asking this question forces them to start
| engaging in the proper procedure for detention or arrest,
| or admit that you are free to go.
| SllX wrote:
| That is reasonable and solid life advice, but seeing it
| in a sentence with a phrase I don't know like "freedom
| auditors" still leaves me confused as to the meaning of
| the latter, and that's where my mind went first until I
| saw the parent's follow up.
|
| Like I said, the best I've found is some information on a
| movement of "First Amendment auditors" but a literal
| reading of what they're about has them testing First
| Amendment jurisprudence which isn't exactly stress-
| testing your Fourth Amendment rights in an reentry line
| at the border, hence the request for clarification.
| yardie wrote:
| I'm neither a Sovereign Citizen or Constitutionalist.
| I've used the "Am I being detained?" question whenever
| the LEO starts to get too informal with me with leading
| questions.
| [deleted]
| anigbrowl wrote:
| True as such, but remember that universal passports have
| been around for barely more than a century. In previous
| eras entry to a country was not considered important
| government business other than during wartime. That all
| changed in 1920.
|
| https://www.nationalgeographic.com/travel/article/a-history
| -...
| jltsiren wrote:
| There have always been border controls. Before precise
| land borders became a thing, the checkpoints were more
| likely to be at natural bottlenecks such as bridges,
| mountain passes, harbors, and city gates.
|
| Even in the period of supposedly free international
| travel before WW1, the US government barred a large
| number of people from entering the country.
| alex_lav wrote:
| IANAL, but it seems to be pretty well documented and agreed
| upon internationally that one must produce documents to enter
| a country. To arrive at a border crossing or port of entry
| and assert the border agent does not have probable cause to
| ask for documents just doesn't really seem like a grey area
| at all.
|
| The "freedom auditors" are expressing their rights to doing
| things that are _defined as legal_ but regularly infringed
| upon (taking pictures of public property like police station
| lobbies, post offices and libraries). Refusing to show
| documents at a port of entry isn't ever defined as legal,
| AFAICT.
|
| Now, this federal ruling is kind of unrelated. It's not about
| asking for documentation, it's about the ability to search an
| arrested person's phone after they've been arrested.
| awesome_dude wrote:
| One thing that has always confused me on this is - how can an
| agent enforce a law on a person if that person isn't within
| jurisdiction of that law, whilst at the same time that person
| isn't entitled to the rights that they would have within that
| jurisdiction.
|
| Basically, how can you enforce a law on someone and at the same
| time ignore the rights that apply to someone where that law can
| be enforced.
|
| If the person hasn't entered the country, then the law of that
| country doesn't apply. If the person has entered the country,
| then the rights and protections of that country also apply..
| NegativeK wrote:
| That sounds a bit like an overreading into technicalities.
|
| It makes sense for border control to exist to _some_ degree.
| That means that property and potentially people will need to be
| searched. It also makes sense for border entry points to not
| exist at the moving shore of a nation or in the actual air.
|
| That means that an administrative concept should exist where
| people on one side of a line are considered to be have been
| granted entry and people on the other side aren't -- even if
| both sides of the line are within a nation's territory.
|
| That administrative concept can be (but can also not be)
| compatible with both the goals of human rights and with the
| goals of nation states. And at the end of the day, laws should
| be more focused on achieving goals than fiddling with
| nitpicking.
| omginternets wrote:
| I would urge anyone who is able to donate to the EFF. They do
| excellent work.
|
| https://www.eff.org/pages/donate-eff
|
| _Rattles tin can..._
| noman-land wrote:
| Just got my membership card in the mail :). And a hilarious
| sticker.
|
| Please, anyone reading this, consider donating to this great
| organization that does important work on our behalf.
| tracker1 wrote:
| They're the target for my smile.amazon.com buying.
| omginternets wrote:
| I didn't realize you could do that! Thanks for the heads-up!
| tracker1 wrote:
| Apparently, it's gone now.. :-( Maybe I should just start
| using Walmart and other options instead... I'm seeing way
| too many "sponsored" results from Amazon lately (6 or the
| first 8 the other day).
| mdavidn wrote:
| The AmazonSmile program ended a couple months ago.
|
| https://www.aboutamazon.com/news/company-news/amazon-
| closing...
| tracker1 wrote:
| Thanks for letting me know... that really sucks.
| histriosum wrote:
| Unfortunately Amazon cancelled the Smile program earlier this
| year, didn't they?
| tracker1 wrote:
| Hmm... yet another reason I may just cancel and give
| Walmart and others more consideration.
| SV_BubbleTime wrote:
| Pot/kettle. You win in neither of those scenarios.
| tracker1 wrote:
| Not saying I do... it sucks in general and is largely a
| race to the bottom in every case.
| Zetice wrote:
| Walmart's brand of corporate Koolaid also happens to be
| good for customers, as that's their market
| differentiator.
| egberts1 wrote:
| would the 100-mile from the border be next or did that quickly
| became 2,000 miles (entire USA) from the border before this OP?
| tracker1 wrote:
| It should apply to interstate domestic travel in the US, of
| course once identified as a citizen. That said, iirc, something
| like 90% of the US populace is within 100mi of the border
| (including ocean).
| boredumb wrote:
| So if non-citizens are entitled to warrants after entering a
| country illegally, how does this fare to the warrant-less five-
| eyes surveillance against non-citizens that have not committed
| any crimes?
| anigbrowl wrote:
| Entering the US illegally is not a crime unless you were
| previously subject to US jurisdiction; technically it's an
| administrative violation.
| reaperman wrote:
| I think it should be that rights from the US Constitution
| should apply to:
|
| - anyone inside the USA borders/waters
|
| - and any citizens of the USA no matter where they currently
| are (obviously only affecting the actions of US Government,
| government of Thailand of course wouldn't be bound by US
| Constitution).
|
| But the Supreme Court disagrees with me on parts of that. So I
| think the answer to your question is "whatever the Supreme
| Court says."
| lannisterstark wrote:
| >I think it should be that rights from the US Constitution
| should apply to
|
| >- anyone inside the USA borders/waters
|
| They do. At least all bill of rights except the 2A do. "In
| theory" anyway.
| sidewndr46 wrote:
| as far as I'm concerned the entire EEZ would be covered. If
| the government assert it's their territory to profit from,
| the same rights go along with it
| ComputerGuru wrote:
| > But the Supreme Court disagrees with me on parts of that.
|
| To be fair, I think SCOTUS disagrees with itself on some
| parts of that.
| halJordan wrote:
| They're actually completely separate topics handled by
| different areas of the law. It's like seeing a case about
| whether an officer can pull over a speeder and the questioning
| the legality of titling fees.
| lesuorac wrote:
| Uh pretty well?
|
| In the first half of your question you clearly show that non-
| citizens outside the US aren't protected by the constitution.
| And the vast majority of the world are non-US citizens outside
| of the US. So you can pretty much spy on anybody and be
| consistent with this decision.
| jameshart wrote:
| The case concerns a resident US citizen reentering the United
| States at a normal port of entry. The judgement explicitly
| doesn't address whether the same arguments it makes apply to
| non citizens or non residents.
|
| This says absolutely nothing about the rights of noncitizens
| detained after illegal entry.
| heyyyouu wrote:
| Yup. This is pretty darn narrow. Still important. But it
| won't mean much until it works it way up.
| jmclnx wrote:
| Curious if this also applies to Laptops ? This quote does not
| mention the scope of the ruling, but to me, the article leaves
| come confusion to my question:
|
| >The Supreme Court has not yet considered the application of the
| border search exception to smartphones, laptops, and other
| electronic devices
| duskwuff wrote:
| "The Supreme Court has not yet considered" simply means that
| the court hasn't said anything either way. It isn't meant to
| imply anything about what position they might take if they
| considered it.
| dylan604 wrote:
| i act as a bit of a paranoid nutter and actually shut off my
| laptop when flying international. it's pretty much the only
| time i do that. the question is not answered to my
| satisfaction, so that's the choice i make in response.
| bonestamp2 wrote:
| What does shutting it off do? As far as I understand, they
| can still require a search. I had it happen once when
| entering Canada, they said if I didn't consent to the search
| they would confiscate my laptop. I let them search it, and
| obviously they didn't find anything incriminating, but it
| felt so violating watching them go through all my personal
| photos.
| dylan604 wrote:
| full disk encryption keys are not in memory yet
| notfed wrote:
| Does this mean they asked you to unlock it / decrypt it?
| Zetice wrote:
| In enhanced security checks in the EU, they often make you
| turn on your electronic devices.
| dylan604 wrote:
| can they force you to log in?
| Zetice wrote:
| When this has happened to me, it's been about ensuring
| the device can turn on at all, they don't investigate
| what's on it.
| dylan604 wrote:
| with this concept of testing for actual electronic
| equipment vs nefarious object disguised as an electronic
| device my protections of shutdown still hold
| Zetice wrote:
| Sure, but it's overkill. You'll have to turn it on anyway
| if you're selected.
| [deleted]
| [deleted]
| ok_dad wrote:
| Please note that this specific ruling was still that the motion
| to supress be denined, because the agents thought they had a
| legal right to search the phone and because they later got a
| warrant for the contents of the copy they made, so the defendant
| still got fucked even though his rights were trampled, simply
| because the agents were too fucking ignorant to know that what
| they were doing was illegal per the SCOTUS 2014 decision.
|
| td;dr: government agents can use ignorance of the law to get away
| with breaking it
|
| --
|
| a quote from the decision:
|
| > Nonetheless, that still leaves the question whether to suppress
| the evidence from such an unlawful search. Here, the Court
| determines that the "good faith" exception precludes suppression,
| both because at the time of the search, the agents conducting the
| search had an objectively reasonable basis for believing that
| there was legal authority binding on them that authorized such a
| search and also because the Government ultimately obtained a
| search warrant to search the phone copy, disclosing all relevant
| details of the search to a neutral magistrate. For these reasons,
| further elaborated below, the Court reaffirms its prior denial of
| Smith's motion to suppress.
| lesuorac wrote:
| I mean that ChatGPT Lawyer had good faith in that ChatGPT gave
| him valid case citations ...
| biofunsf wrote:
| The government's argument here is that if the agents knew they
| had to obtain a warrant to search the phone, they would have
| held the individual, or just their phone, until they got the
| warrant and it would have been searched anyway. If they were
| unable to obtain a warrant then the phone's contents would be
| suppressed.
|
| While it's now clear that warrantless border searches of cell
| phones are illegal, the very fact that this took 4 years and
| had to go all the way up to the Supreme Court to determine this
| means there was ambiguity. It's not that the agents were
| "ignorant of the law", it's that the law was unclear on this
| aspect. If agents were just ignorant of well established law
| this never would have made it to the Supreme Court. And these
| decisions generally don't apply retroactively. (For example,
| abortions in states with laws on the books completely outlawing
| abortions aren't retroactively treated as crimes even though
| the Supreme Court recently overruled Roe v Wade and said that
| states are allowed to outlaw abortions.)
|
| Of course, I absolutely agree with your sentiment. It's absurd
| this was ambiguous in the first place and that it took this
| long to establish that these warrantless border phone searches
| were illegal.
| jacquesm wrote:
| It is quite astounding that this was allowed to stand in spite
| of it being _against the law_.
| tiahura wrote:
| Shouldn't the consequence of the agent not doing their job be
| that the agent gets fired? Why should a criminal benefit? If
| his rights were violated, he can sue.
| throwway120385 wrote:
| One of the consequences of an agent being bad at their job
| is that they accidentally put the wrong person in jail for
| a crime. Because some of the drafters felt that it was more
| important to protect the innocent, they decided to put the
| onus on the government to follow procedure when trying
| suspects.
| ok_dad wrote:
| > Why should a criminal benefit?
|
| Because that's the way the 4th amendment works. If the
| state isn't good enough at their job to train their agents
| properly, then fuck 'em.
|
| > If his rights were violated, he can sue.
|
| They were, he did, and this case was the result. His rights
| were simply violated with no recourse, is what this judge
| said.
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