6 ms·

Draft law to require warrants for border device searches

139 points by CrankyBear 10y ago

james_pm 10y ago
Is there any evidence, other than anecdotal, that these types of searches have actually "gotten worse in quantity under the new president" as the EFF states? And for Americans coming to Canada, be aware your phone and laptop are fair game at our border crossings too. No warrant required (yet). https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc3 https://www.priv.gc.ca/en/privacy-topics/public-safety-and-l...
- mi100hael 10y ago
  I doubt they've gotten worse. BUT, they shouldn't have been legal in the first place, especially for American citizens. The whole notion of "Constitution-free zones" is ludicrous.
  - dawnerd 10y ago
    And from what I understand it's a 100 mile zone around the borders? https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
    - spacemanmatt 10y ago
      That looks to cover about 95% of the population.
      - maxerickson 10y ago
        They can only do a border search of someone who has recently crossed the border. So it doesn't apply to all the people in the zone. It covers a bunch of Michigan because a boater does an entry process once they stop boating, not when they cross an imaginary line. There are rumbles of plans to move to a different, broader standard going forward.
        __jal 10y ago
        That may be the rule for particularized searches (I don't know one way or the other), but "papers please" road checkpoints are common[1]. U.S. citizens are theoretically not required to show papers. In practice, theory and practice diverge. https://en.wikipedia.org/wiki/United_States_Border_Patrol_interior_checkpoints https://en.wikipedia.org/wiki/United_States_Border_Patrol_in...
        brewdad 10y ago
        Ah that makes sense. I had seen that map before and wondered how western Illinois could be included in the 100 mile border zone when Lake Michigan doesn't share a border with Canada. Lake Huron does and a boater could enter the US from there but dock in Chicago.
- CrankyBear 10y ago
  Wyden asked CBP for that exact data in his letter.
Arizhel 10y ago
This draft law is for show only. It's not going to be enacted; it's being pushed by Ron Wyden, a Democrat who's far more progressive than the rest of his party, and in a Congress that's totally controlled by Republicans, with an America-first Republican in the White House. There isn't a chance this law will be passed. He might as well be promoting a bill to introduce single-payer socialized medicine in the US along with a Universal Basic Income.
- smhenderson 10y ago
  This draft law is for show only. Sometimes that's the best a representative can do. That doesn't mean it has no value. It raises awareness, keeps the issue on the public record and, hopefully, eventually, leads to a pull toward the center and some reasonable compromise.
  - logfromblammo 10y ago
    It may also be used as campaign propaganda. Everyone who votes against your bill may one day see a campaign ad saying, "Rep./Sen. Whatsname voted in favor of warrantless searches of your personal electronic files, when all you wanted was to come back home." Such is undoubtedly why bills of this nature are smothered in committee by politicians who are so secure in their gerrymandered districts that they could bite the head off of a baby on live television the day before election day and still win the seat.
- deleted 10y ago
  [deleted]
- jlgaddis 10y ago
  I'm not disagreeing with you, you may very well be correct. The alternative, however, is that Senator Wyden simply "accepts defeat" and does nothing. That's not what I prefer.
- rosser 10y ago
  My gut inclination is to agree with you, but this is also the same congress whose lower house recently unanimously passed a bill requiring a warrant to access stored online communications, instead of merely a subpoena. I think it neither terribly constructive nor useful to attempt to cast every issue in a partisan light.
unchocked 10y ago
Senator Wyden had a town hall last night. In it, I witnessed a constituent share concern about device searches at the border. The Senator said he shared the concern, that he would investigate, and that he would introduce legislation if he did not like the results of that investigation. This is the result of his promise, delivered that same night. Representative Democracy works. Talk to your representatives. Edit - the letter: https://www.wyden.senate.gov/download/?id=B947731A-2394-484B-81E3-FDD49530EBF4&download=1 https://www.wyden.senate.gov/download/?id=B947731A-2394-484B...
- belovedeagle 10y ago
  So you reckon than in less than 24 hours the senator has completed a thorough investigation and also had time to draft a bill? Or maybe is it the case that this work has been ongoing for months...?
  - chc 10y ago
    According to the OP, he just announced that he intends to draft a bill. Has he actually released one now?
  - AckSyn 10y ago
    I wouldn't doubt if there were an experienced and competent lawmaker, s/he would be able to have a bill draft up within a day or two. Much like many of us in the tech industry, coming up with a basic framework for automation in a 24 hr period can be done. Obviously in both cases more work needs to be done but the basics are there. And researching egregious border guard incidents is a quick internet search away. One hour of that will have you fuming.
  - NegativeK 10y ago
    "Staff, has anyone looked into border device searches without warrants? Yes? Okay, you've provided a good summary of the challenges surrounding the issue. Please compile your work into draft legislation that we can release today."
  - dragonwriter 10y ago
ScottBurson 10y ago
The CBP's job is to control the movement of people and physical objects across the border. They have neither the charter nor the capability to control information flow across the border. All they are accomplishing by trying to do the latter is to harrass travelers, the vast majority of whom are innocent. So if they want to verify that an object that appears to be a laptop is not actually filled with cocaine -- great, have at it. But if they want to log in to it and poke around the filesystem -- no dice. (Forgive me if I belabor the obvious here. But it seems the distinction needs emphasizing.)
- imglorp 10y ago
  I think the overt intention is to identify undesirable travelers and exclude them from entry. In reality it's much more of a "papers please" situation acclimatizing everyone to control of their movements. Things are progressing quickly towards the totalitarian state.
  - koenigdavidmj 10y ago
    We're talking about US citizens here, whom they are required to allow to return to the US.
  - ScottBurson 10y ago
    > I think the overt intention is to identify undesirable travelers and exclude them from entry. Well, okay. Ideally, in the case of non-citizens, we would figure out the ones we wanted to exclude before issuing them visas, but that process can't be perfect, and a case can be made for allowing CBP agents to take a closer look at them and exercise their discretion. Two points about that. First, as koenigdavidmj points out, this can't apply to citizens. The only possible reason for examining information carried by citizens is to make the CBP an extension of the police, and once you've done that, Fourth Amendment protections have to apply. (Obviously this is my personal opinion only, not something the courts have said; but the argument seems very straightforward to me.) And secondly, there are reasons to think this is not going to be a very effective filter, to the point that it's probably not even worth doing. Once word gets out among America's enemies, as it surely has long ago, of the need not to carry incriminating information across the border, sophisticated adversaries simply won't do it. You might catch some low-level criminals, but really, what do you think the false negative rate is? By their own admission, the CBP are searching a small fraction of electronic devices, so the chance of them catching even a stupid miscreant seems under 10%; for the smart ones it's probably under 1%. This is particularly true if all they profile for is dark-skinned men with strange names -- like Sidd Bikkannavar.
timthelion 10y ago
I opened it up, thinking to myself "what, in a Republcan controlled house? Am I going to do a 180 on which party a vote for?" But then it was a dem.

139 points by CrankyBear 10y ago

Is there any evidence, other than anecdotal, that these types of searches have actually "gotten worse in quantity under the new president" as the EFF states? And for Americans coming to Canada, be aware your phone and laptop are fair game at our border crossings too. No warrant required (yet). https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc3 https://www.priv.gc.ca/en/privacy-topics/public-safety-and-l...

mi100hael 10y ago
I doubt they've gotten worse. BUT, they shouldn't have been legal in the first place, especially for American citizens. The whole notion of "Constitution-free zones" is ludicrous.
- dawnerd 10y ago
  And from what I understand it's a 100 mile zone around the borders? https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
  - spacemanmatt 10y ago
    That looks to cover about 95% of the population.
    - maxerickson 10y ago
      They can only do a border search of someone who has recently crossed the border. So it doesn't apply to all the people in the zone. It covers a bunch of Michigan because a boater does an entry process once they stop boating, not when they cross an imaginary line. There are rumbles of plans to move to a different, broader standard going forward.
      - __jal 10y ago
        That may be the rule for particularized searches (I don't know one way or the other), but "papers please" road checkpoints are common[1]. U.S. citizens are theoretically not required to show papers. In practice, theory and practice diverge. https://en.wikipedia.org/wiki/United_States_Border_Patrol_interior_checkpoints https://en.wikipedia.org/wiki/United_States_Border_Patrol_in...
      - brewdad 10y ago
        Ah that makes sense. I had seen that map before and wondered how western Illinois could be included in the 100 mile border zone when Lake Michigan doesn't share a border with Canada. Lake Huron does and a boater could enter the US from there but dock in Chicago.
CrankyBear 10y ago
Wyden asked CBP for that exact data in his letter.

Arizhel 10y ago

This draft law is for show only. It's not going to be enacted; it's being pushed by Ron Wyden, a Democrat who's far more progressive than the rest of his party, and in a Congress that's totally controlled by Republicans, with an America-first Republican in the White House. There isn't a chance this law will be passed. He might as well be promoting a bill to introduce single-payer socialized medicine in the US along with a Universal Basic Income.

smhenderson 10y ago
This draft law is for show only. Sometimes that's the best a representative can do. That doesn't mean it has no value. It raises awareness, keeps the issue on the public record and, hopefully, eventually, leads to a pull toward the center and some reasonable compromise.
- logfromblammo 10y ago
  It may also be used as campaign propaganda. Everyone who votes against your bill may one day see a campaign ad saying, "Rep./Sen. Whatsname voted in favor of warrantless searches of your personal electronic files, when all you wanted was to come back home." Such is undoubtedly why bills of this nature are smothered in committee by politicians who are so secure in their gerrymandered districts that they could bite the head off of a baby on live television the day before election day and still win the seat.
deleted 10y ago
[deleted]
jlgaddis 10y ago
I'm not disagreeing with you, you may very well be correct. The alternative, however, is that Senator Wyden simply "accepts defeat" and does nothing. That's not what I prefer.
rosser 10y ago
My gut inclination is to agree with you, but this is also the same congress whose lower house recently unanimously passed a bill requiring a warrant to access stored online communications, instead of merely a subpoena. I think it neither terribly constructive nor useful to attempt to cast every issue in a partisan light.

unchocked 10y ago

Senator Wyden had a town hall last night. In it, I witnessed a constituent share concern about device searches at the border. The Senator said he shared the concern, that he would investigate, and that he would introduce legislation if he did not like the results of that investigation. This is the result of his promise, delivered that same night. Representative Democracy works. Talk to your representatives. Edit - the letter: https://www.wyden.senate.gov/download/?id=B947731A-2394-484B-81E3-FDD49530EBF4&download=1 https://www.wyden.senate.gov/download/?id=B947731A-2394-484B...

belovedeagle 10y ago
So you reckon than in less than 24 hours the senator has completed a thorough investigation and also had time to draft a bill? Or maybe is it the case that this work has been ongoing for months...?
- chc 10y ago
  According to the OP, he just announced that he intends to draft a bill. Has he actually released one now?
- AckSyn 10y ago
  I wouldn't doubt if there were an experienced and competent lawmaker, s/he would be able to have a bill draft up within a day or two. Much like many of us in the tech industry, coming up with a basic framework for automation in a 24 hr period can be done. Obviously in both cases more work needs to be done but the basics are there. And researching egregious border guard incidents is a quick internet search away. One hour of that will have you fuming.
- NegativeK 10y ago
  "Staff, has anyone looked into border device searches without warrants? Yes? Okay, you've provided a good summary of the challenges surrounding the issue. Please compile your work into draft legislation that we can release today."
- dragonwriter 10y ago

ScottBurson 10y ago

The CBP's job is to control the movement of people and physical objects across the border. They have neither the charter nor the capability to control information flow across the border. All they are accomplishing by trying to do the latter is to harrass travelers, the vast majority of whom are innocent. So if they want to verify that an object that appears to be a laptop is not actually filled with cocaine -- great, have at it. But if they want to log in to it and poke around the filesystem -- no dice. (Forgive me if I belabor the obvious here. But it seems the distinction needs emphasizing.)

imglorp 10y ago
I think the overt intention is to identify undesirable travelers and exclude them from entry. In reality it's much more of a "papers please" situation acclimatizing everyone to control of their movements. Things are progressing quickly towards the totalitarian state.
- koenigdavidmj 10y ago
  We're talking about US citizens here, whom they are required to allow to return to the US.
- ScottBurson 10y ago
  > I think the overt intention is to identify undesirable travelers and exclude them from entry. Well, okay. Ideally, in the case of non-citizens, we would figure out the ones we wanted to exclude before issuing them visas, but that process can't be perfect, and a case can be made for allowing CBP agents to take a closer look at them and exercise their discretion. Two points about that. First, as koenigdavidmj points out, this can't apply to citizens. The only possible reason for examining information carried by citizens is to make the CBP an extension of the police, and once you've done that, Fourth Amendment protections have to apply. (Obviously this is my personal opinion only, not something the courts have said; but the argument seems very straightforward to me.) And secondly, there are reasons to think this is not going to be a very effective filter, to the point that it's probably not even worth doing. Once word gets out among America's enemies, as it surely has long ago, of the need not to carry incriminating information across the border, sophisticated adversaries simply won't do it. You might catch some low-level criminals, but really, what do you think the false negative rate is? By their own admission, the CBP are searching a small fraction of electronic devices, so the chance of them catching even a stupid miscreant seems under 10%; for the smart ones it's probably under 1%. This is particularly true if all they profile for is dark-skinned men with strange names -- like Sidd Bikkannavar.

timthelion 10y ago

I opened it up, thinking to myself "what, in a Republcan controlled house? Am I going to do a 180 on which party a vote for?" But then it was a dem.