14 ms·

EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

549 points by DiabloD3 9y ago

tonyztan 9y ago
Dupe: https://news.ycombinator.com/item?id=15240700 https://news.ycombinator.com/item?id=15240700 Edit: Saw the downvotes, so just wanted to note that the linked post was submitted before this one, and hence this comment. Not that it matters. :)
- deleted 9y ago
  [deleted]
- tonyztan 9y ago
  To clarify, I meant to say that this thread (id=15240781) is a dupe of the one I linked to (id=15240700). HN marked the wrong dupe! :)
aey 9y ago
Donate to the eff. They will send you an awesome hoodie.
- microcolonel 9y ago
  I'm glad they picked up this approach, I think they got it from the NRA. NRA's been doing donor merchandise and services quite well for a long time, they even have a wine delivery service. I encourage anyone operating a non-profit to consider setting up programmes like this; you'll get more visibility (from people virtue-signalling their donation), and it will attract new revenue from sociopaths.
  - toomuchtodo 9y ago
    > and it will attract new revenue from sociopaths. Can't I just like a hoodie?
    - deleted 9y ago
      [deleted]
    - microcolonel 9y ago
      Heheh, fair enough. But I figure if the hoodie is the deciding factor for whether or not to donate (or how much), then you're just making a purchase.
      - toomuchtodo 9y ago
        True true. I donate to the EFF annually but now I can wear their swank hoodie at US border crossings (I am a glutton for punishment).
      - lobotryas 9y ago
        When you donate money you arguably "purchase" the good feeling of doing something "good" and also social validation if you choose to make your donation public. I think it's a great idea to entice more revenue by giving an option (a hoody) for people who are not interested in "purchasing" the above.
      - petecox 9y ago
        Purchases are great. e.g. my Clayoquot Sound t-shirt from 2013 which is a souvenir with an indigenous rights theme from the other side of the world. A mere cash donation to a petition-wielding activist would not have had the same resonance. At least several years later I still have a cool t-shirt.
  - bitwize 9y ago
    And I think the NRA got it from PBS, who have been offering tote bags, Elmo dolls, and the like in exchange fir pledges for decades.
- abtinf 9y ago
  A few years ago, I considered starting regular donations to the EFF. Unfortunately, I did not realize they had taken pro position on state intervention and control of the Internet, a concept generally described with the orwellian phrase "net neutrality." This position directly contradicts much of the their advocacy that I wanted to support.
  - lightbyte 9y ago
    It does not sound like you understand what net neutrality is. Have you read their statement on it [1]? [1] https://www.eff.org/issues/net-neutrality https://www.eff.org/issues/net-neutrality
  - frandroid 9y ago
    So you're taking the "pro-corporate control" position instead. Brilliant.
  - mr_overalls 9y ago
    It's only state intervention in that it limits the potential tyranny of corporate behemoths to abuse the citizenry and subvert free markets.
  - sdenton4 9y ago
    And why must the government insert itself into free speech issues by passing radical regulations like the first amendment? For shame!
  - natch 9y ago
    I am glad you commented, so that others could rebut your misguided position. It's not usually kosher to comment on voting here, but I think in this case it's worth making an exception to help keep you readable: I un-did my downvote of you because I hope that others who, out of innocent ignorance perhaps, currently share your position, will be able to read your comment (I don't want you to go to full invisibility) and then read and consider the responses to it. I would advise anyone who agrees with this guy (abtinf) to really think it through a bit. The "regulation is bad therefore ALL regulation is bad" trap is easy to fall into. Even if you are a strict libertarian, net neutrality is a case where regulation is stopping really bad things from happening, and, though it sounds paradoxical, enabling MORE freedom, not less.
meri_dian 9y ago
If they can search your bags without a warrant at the border, why can't they search your phone or laptop? Edit: Contraband can be both physical and digital. If the government can conduct searches for physical contraband then searches for digital contraband in certain circumstances like border crossings seems reasonable.
- __david__ 9y ago
  Because that's presumably to prevent you from importing physical contraband into the country. Checking your internet connected device for contraband makes zero sense.
  - rando0o0o0o0o 9y ago
    Could they make the argument that they're checking for malicious software/viruses/other bad stuff that could be a threat to Americans?
    - SerLava 9y ago
      I mean, not really unless they open it up and run antivirus software on it.
      - jimktrains2 9y ago
        And even then it would only find things they already know exist, which would mean they're already in the country more than likely.
    - tonyztan 9y ago
      Then "randomly" and arbitrarily searching people's devices as they cross the border isn't really an efficient way to do it, unless you also set up an intrusive firewall to "protect" the U.S. from malware.
    - choward 9y ago
      What year is this? That kind of stuff can just be transferred via the Internet. It doesn't have to physically be transferred across the border.
rdiddly 9y ago
I wish I could thank these guys with big hugs but instead I'll probably have to settle for donating.
- StavrosK 9y ago
  No reason why you can't do both!
derefr 9y ago
Interesting question to me: is any country offering easy-to-attain diplomatic-courier status, such that I could (legitimately) label my laptop bag as a diplomatic pouch to protect it from search? (Yes, it's more complex than this; you'd have to be able to upload a manifest of what's in the bag and what it weighs to some service of that country's government, and then the country's embassy here would forward the manifest to the State Dept and they'd send you a sticker for your bag, etc.)
- ceejayoz 9y ago
  It'd have to be on a very small scale. Countries get to limit the number of staff a foreign embassy is allowed to bring in, and they can kick folks out of the country.
  - derefr 9y ago
    Ah, note, I said "diplomatic courier", not "diplomat." A diplomatic pouch can actually be escorted by anyone, or even unescorted, as long as it has a sealed manifest affixed. Indeed, the person escorting the pouch doesn't even have to be a citizen of either the source country or the mission/embassy. This proviso allows people to be "deputized" to deliver a diplomatic pouch; allows diplomatic pouches to be handed off for delivery and still keep their protections; allows diplomatic pouches to be recovered from a war-zone and resume delivery; etc. Fun fact: for air travel, unescorted diplomatic pouches are taken into the care of the captain, and are kept in the cockpit.
- azernik 9y ago
  No. This would be in direct contravention of the Vienna Protocols [1] that define a diplomatic pouch and its protections. You are not allowed to stuff your personal shit in a diplomatic courier pouch, and any country openly and intentionally allowing the abuse of the Vienna Protocols for these purposes would be in very hot water internationally. Like, international-incident, embassies-expelled hot water. [1] Article 27 Section 4: "The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use."
ironix 9y ago
I'm going on a trip to Canada within the next month, from the US, as a US citizen. I want to be let into Canada without issue, so am taking a burner smartphone connected to a non-critical gmail account that is plausibly-maybe my "real" personal one. But not really. The maximum threat to me is detention, or more likely, refused entry. If I am asked to unlock the device, I will. Crossing back into the US, I am less concerned. If I am asked to unlock the device, I will NOT. The maximum threat to me is semi-indefinite detention, and I know at the end of it, I can reach out to the EFF to seek representation in a larger action. Does anyone else have any tips/tricks/ideas here? I realize trying to subvert any Canadian border search is not a good idea, but it's a good middle-grounds vs. "don't go to Canada" or "give them all your private data", I think. On the other hand, I am willing to be more stringent with the US border because (A) I am a citizen, I cannot be refused entry, and (B) this is a cause I would like to participate in, so invite any negative outcome caused by my refusal to unlock the device or share any logins.
- tryingagainbro 9y ago
  >> The maximum threat to me is semi-indefinite detention Thanks for willing to take one for the team but be prepared to be put on a "troublemaker" list and be harassed, time and time again at border crossings.
  - ironix 9y ago
    I am curious, is it possible that countries / regions share such lists? i.e. would refusing to comply with a digital search at the US border possibly affect me in EU?
    - nrb 9y ago
      Given the intelligence alliances that we know exist and the likely many that we aren't aware of, it's not only possible but probable.
- iamatworknow 9y ago
  >Does anyone else have any tips/tricks/ideas here? The trick is to not worry about it so much. In fact, I'd say that worrying and looking nervous would make it more likely that you would be searched. I live on the US/Canadian border (on the US side) and go over probably 2 or 3 times per month. I regularly drive from New York state to Ottawa (going through Canadian customs), then fly into the US (through US customs) and then back again through Canada (Canadian customs again) driving home to the US (US customs again) with no problems. It's closer than the nearest commercial airport to me in the US and even with the customs delay, much more convenient. I also just go over to have fun in Ottawa and Montreal regularly. My vehicle has been searched 3 times in probably 6 years. My phone has always stayed with me, in my pocket, un-searched. I have only ever personally heard of one case of someone having their electronics searched, and the extent of the search was Canadian customs using the Windows search to look for files with "boy" or "girl" in the filename -- presumably looking for child porn. To be clear, I'm not saying this doesn't ever happen, or that it will 100% never happen to you, but the chances are very, very slim that they'll even ask you more than a few questions, let alone do any sort of search. Your mileage may vary, of course.
greymeister 9y ago
The US extends the border-search exception to anywhere within 100 miles of an airport with international fights, meaning something like 60% of the US lives within a "border zone" as most international airports are close to dense population centers.
- djrogers 9y ago
  This is tangential, and I'm sure you didn't mean to, but you've come close to implying that a CBP agent can stop, search, and detain anyone within 100 miles of an International airport. That's not the case, it would have to be someone who actually crossed the border in to the USA. That said, and I can' believe I have to make this disclaimer as it feels about as obvious as saying I'm against torturing kittens, but I am against the overreaching searches the EFF and ACLU are suing over here.
  - tbrownaw 9y ago
    it would have to be someone who actually crossed the border ... And if they want to detain you, who gets to decide whether that happened?
    - lovich 9y ago
      It's fine they just have to check your papers real quick. Also, never question if they can do that unless you want to be arrested for resisting arrest
  - halostatue 9y ago
    Except that, in practice, that’s precisely what CBP interior checkpoints are. https://en.wikipedia.org/wiki/United_States_Border_Patrol_interior_checkpoints https://en.wikipedia.org/wiki/United_States_Border_Patrol_in... The DHS/CBP regulations claim 100 miles from a border and/or international airport, but the Supreme Court has (so far) held that warrantless searches in this case apply only at borders and their functional equivalents. (https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception)
  - 9y ago
wallace_f 9y ago
Isn't the US Constitution the highest law in the US? The Fourth clearly states people should be secure from search or seizure of their personal effects and papers, which obviously extends to electronic devices. So my question is, shouldn't there be extroardinary consequences for breaking laws such as these? Why does it appear so easy for government to get away with this? Is it a really bad thing thay constitutional rights are being easily trampeled on? It seems like a bad deal to me.
- ENOTTY 9y ago
  The short answer is that the Fourth Amendment isn't actually all that clear, and that it's up to judges, lawyers, politicians, and citizens to figure out how it applies in different situations.
  - wallace_f 9y ago
    Which part do you find to be unclear? It looks pretty clear to me. What if I asked about Guantanamo, the NSA, or wars without approval of congress? Are all of these failures of our Gov to observe our constitution issues of some kind of lack in clarity?
    - InitialLastName 9y ago
      > Which part do you find to be unclear? 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. The word "unreasonable" in "unreasonable searches and seizures" introduces a full hectare of gray area.
- manfredo 9y ago
  The Supreme Court has determined that the 4th Amendment has lesser protections at borders.[1] Border patrol has the ability to search your containers , and perform non-invasive body searches without any degree of suspicion, for instance. More invasive searches, like cavity searches and involuntary body x-rays require a degree of suspicion. Whether electronic searches fall under the first category or the latter is what this lawsuit may determine. [1] https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception
basseq 9y ago
I hope this one goes to the Supreme Court, as that's the only place this will be resolved. Otherwise, U.S. Criminal Law is clear: searches and seizures at the border are exempt from requirements for warrants or probable cause. Multiple circuit courts have upheld the Government's right to do this, and that this right extends to electronic files and information. Only the Ninth has disagreed (United States v. Cotterman).

549 points by DiabloD3 9y ago

Dupe: https://news.ycombinator.com/item?id=15240700 https://news.ycombinator.com/item?id=15240700 Edit: Saw the downvotes, so just wanted to note that the linked post was submitted before this one, and hence this comment. Not that it matters. :)

deleted 9y ago
[deleted]
tonyztan 9y ago
To clarify, I meant to say that this thread (id=15240781) is a dupe of the one I linked to (id=15240700). HN marked the wrong dupe! :)

aey 9y ago

Donate to the eff. They will send you an awesome hoodie.

microcolonel 9y ago
I'm glad they picked up this approach, I think they got it from the NRA. NRA's been doing donor merchandise and services quite well for a long time, they even have a wine delivery service. I encourage anyone operating a non-profit to consider setting up programmes like this; you'll get more visibility (from people virtue-signalling their donation), and it will attract new revenue from sociopaths.
- toomuchtodo 9y ago
  > and it will attract new revenue from sociopaths. Can't I just like a hoodie?
  - deleted 9y ago
    [deleted]
  - microcolonel 9y ago
    Heheh, fair enough. But I figure if the hoodie is the deciding factor for whether or not to donate (or how much), then you're just making a purchase.
    - toomuchtodo 9y ago
      True true. I donate to the EFF annually but now I can wear their swank hoodie at US border crossings (I am a glutton for punishment).
    - lobotryas 9y ago
      When you donate money you arguably "purchase" the good feeling of doing something "good" and also social validation if you choose to make your donation public. I think it's a great idea to entice more revenue by giving an option (a hoody) for people who are not interested in "purchasing" the above.
    - petecox 9y ago
      Purchases are great. e.g. my Clayoquot Sound t-shirt from 2013 which is a souvenir with an indigenous rights theme from the other side of the world. A mere cash donation to a petition-wielding activist would not have had the same resonance. At least several years later I still have a cool t-shirt.
- bitwize 9y ago
  And I think the NRA got it from PBS, who have been offering tote bags, Elmo dolls, and the like in exchange fir pledges for decades.
abtinf 9y ago
A few years ago, I considered starting regular donations to the EFF. Unfortunately, I did not realize they had taken pro position on state intervention and control of the Internet, a concept generally described with the orwellian phrase "net neutrality." This position directly contradicts much of the their advocacy that I wanted to support.
- lightbyte 9y ago
  It does not sound like you understand what net neutrality is. Have you read their statement on it [1]? [1] https://www.eff.org/issues/net-neutrality https://www.eff.org/issues/net-neutrality
- frandroid 9y ago
  So you're taking the "pro-corporate control" position instead. Brilliant.
- mr_overalls 9y ago
  It's only state intervention in that it limits the potential tyranny of corporate behemoths to abuse the citizenry and subvert free markets.
- sdenton4 9y ago
  And why must the government insert itself into free speech issues by passing radical regulations like the first amendment? For shame!
- natch 9y ago
  I am glad you commented, so that others could rebut your misguided position. It's not usually kosher to comment on voting here, but I think in this case it's worth making an exception to help keep you readable: I un-did my downvote of you because I hope that others who, out of innocent ignorance perhaps, currently share your position, will be able to read your comment (I don't want you to go to full invisibility) and then read and consider the responses to it. I would advise anyone who agrees with this guy (abtinf) to really think it through a bit. The "regulation is bad therefore ALL regulation is bad" trap is easy to fall into. Even if you are a strict libertarian, net neutrality is a case where regulation is stopping really bad things from happening, and, though it sounds paradoxical, enabling MORE freedom, not less.

meri_dian 9y ago

If they can search your bags without a warrant at the border, why can't they search your phone or laptop? Edit: Contraband can be both physical and digital. If the government can conduct searches for physical contraband then searches for digital contraband in certain circumstances like border crossings seems reasonable.

__david__ 9y ago
Because that's presumably to prevent you from importing physical contraband into the country. Checking your internet connected device for contraband makes zero sense.
- rando0o0o0o0o 9y ago
  Could they make the argument that they're checking for malicious software/viruses/other bad stuff that could be a threat to Americans?
  - SerLava 9y ago
    I mean, not really unless they open it up and run antivirus software on it.
    - jimktrains2 9y ago
      And even then it would only find things they already know exist, which would mean they're already in the country more than likely.
  - tonyztan 9y ago
    Then "randomly" and arbitrarily searching people's devices as they cross the border isn't really an efficient way to do it, unless you also set up an intrusive firewall to "protect" the U.S. from malware.
  - choward 9y ago
    What year is this? That kind of stuff can just be transferred via the Internet. It doesn't have to physically be transferred across the border.

rdiddly 9y ago

I wish I could thank these guys with big hugs but instead I'll probably have to settle for donating.

StavrosK 9y ago
No reason why you can't do both!

derefr 9y ago

Interesting question to me: is any country offering easy-to-attain diplomatic-courier status, such that I could (legitimately) label my laptop bag as a diplomatic pouch to protect it from search? (Yes, it's more complex than this; you'd have to be able to upload a manifest of what's in the bag and what it weighs to some service of that country's government, and then the country's embassy here would forward the manifest to the State Dept and they'd send you a sticker for your bag, etc.)

ceejayoz 9y ago
It'd have to be on a very small scale. Countries get to limit the number of staff a foreign embassy is allowed to bring in, and they can kick folks out of the country.
- derefr 9y ago
  Ah, note, I said "diplomatic courier", not "diplomat." A diplomatic pouch can actually be escorted by anyone, or even unescorted, as long as it has a sealed manifest affixed. Indeed, the person escorting the pouch doesn't even have to be a citizen of either the source country or the mission/embassy. This proviso allows people to be "deputized" to deliver a diplomatic pouch; allows diplomatic pouches to be handed off for delivery and still keep their protections; allows diplomatic pouches to be recovered from a war-zone and resume delivery; etc. Fun fact: for air travel, unescorted diplomatic pouches are taken into the care of the captain, and are kept in the cockpit.
azernik 9y ago
No. This would be in direct contravention of the Vienna Protocols [1] that define a diplomatic pouch and its protections. You are not allowed to stuff your personal shit in a diplomatic courier pouch, and any country openly and intentionally allowing the abuse of the Vienna Protocols for these purposes would be in very hot water internationally. Like, international-incident, embassies-expelled hot water. [1] Article 27 Section 4: "The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use."

ironix 9y ago

I'm going on a trip to Canada within the next month, from the US, as a US citizen. I want to be let into Canada without issue, so am taking a burner smartphone connected to a non-critical gmail account that is plausibly-maybe my "real" personal one. But not really. The maximum threat to me is detention, or more likely, refused entry. If I am asked to unlock the device, I will. Crossing back into the US, I am less concerned. If I am asked to unlock the device, I will NOT. The maximum threat to me is semi-indefinite detention, and I know at the end of it, I can reach out to the EFF to seek representation in a larger action. Does anyone else have any tips/tricks/ideas here? I realize trying to subvert any Canadian border search is not a good idea, but it's a good middle-grounds vs. "don't go to Canada" or "give them all your private data", I think. On the other hand, I am willing to be more stringent with the US border because (A) I am a citizen, I cannot be refused entry, and (B) this is a cause I would like to participate in, so invite any negative outcome caused by my refusal to unlock the device or share any logins.

tryingagainbro 9y ago
>> The maximum threat to me is semi-indefinite detention Thanks for willing to take one for the team but be prepared to be put on a "troublemaker" list and be harassed, time and time again at border crossings.
- ironix 9y ago
  I am curious, is it possible that countries / regions share such lists? i.e. would refusing to comply with a digital search at the US border possibly affect me in EU?
  - nrb 9y ago
    Given the intelligence alliances that we know exist and the likely many that we aren't aware of, it's not only possible but probable.
iamatworknow 9y ago
>Does anyone else have any tips/tricks/ideas here? The trick is to not worry about it so much. In fact, I'd say that worrying and looking nervous would make it more likely that you would be searched. I live on the US/Canadian border (on the US side) and go over probably 2 or 3 times per month. I regularly drive from New York state to Ottawa (going through Canadian customs), then fly into the US (through US customs) and then back again through Canada (Canadian customs again) driving home to the US (US customs again) with no problems. It's closer than the nearest commercial airport to me in the US and even with the customs delay, much more convenient. I also just go over to have fun in Ottawa and Montreal regularly. My vehicle has been searched 3 times in probably 6 years. My phone has always stayed with me, in my pocket, un-searched. I have only ever personally heard of one case of someone having their electronics searched, and the extent of the search was Canadian customs using the Windows search to look for files with "boy" or "girl" in the filename -- presumably looking for child porn. To be clear, I'm not saying this doesn't ever happen, or that it will 100% never happen to you, but the chances are very, very slim that they'll even ask you more than a few questions, let alone do any sort of search. Your mileage may vary, of course.

greymeister 9y ago

The US extends the border-search exception to anywhere within 100 miles of an airport with international fights, meaning something like 60% of the US lives within a "border zone" as most international airports are close to dense population centers.

djrogers 9y ago
This is tangential, and I'm sure you didn't mean to, but you've come close to implying that a CBP agent can stop, search, and detain anyone within 100 miles of an International airport. That's not the case, it would have to be someone who actually crossed the border in to the USA. That said, and I can' believe I have to make this disclaimer as it feels about as obvious as saying I'm against torturing kittens, but I am against the overreaching searches the EFF and ACLU are suing over here.
- tbrownaw 9y ago
  it would have to be someone who actually crossed the border ... And if they want to detain you, who gets to decide whether that happened?
  - lovich 9y ago
    It's fine they just have to check your papers real quick. Also, never question if they can do that unless you want to be arrested for resisting arrest
- halostatue 9y ago
  Except that, in practice, that’s precisely what CBP interior checkpoints are. https://en.wikipedia.org/wiki/United_States_Border_Patrol_interior_checkpoints https://en.wikipedia.org/wiki/United_States_Border_Patrol_in... The DHS/CBP regulations claim 100 miles from a border and/or international airport, but the Supreme Court has (so far) held that warrantless searches in this case apply only at borders and their functional equivalents. (https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception)
- 9y ago

wallace_f 9y ago

Isn't the US Constitution the highest law in the US? The Fourth clearly states people should be secure from search or seizure of their personal effects and papers, which obviously extends to electronic devices. So my question is, shouldn't there be extroardinary consequences for breaking laws such as these? Why does it appear so easy for government to get away with this? Is it a really bad thing thay constitutional rights are being easily trampeled on? It seems like a bad deal to me.

ENOTTY 9y ago
The short answer is that the Fourth Amendment isn't actually all that clear, and that it's up to judges, lawyers, politicians, and citizens to figure out how it applies in different situations.
- wallace_f 9y ago
  Which part do you find to be unclear? It looks pretty clear to me. What if I asked about Guantanamo, the NSA, or wars without approval of congress? Are all of these failures of our Gov to observe our constitution issues of some kind of lack in clarity?
  - InitialLastName 9y ago
    > Which part do you find to be unclear? 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. The word "unreasonable" in "unreasonable searches and seizures" introduces a full hectare of gray area.
manfredo 9y ago
The Supreme Court has determined that the 4th Amendment has lesser protections at borders.[1] Border patrol has the ability to search your containers , and perform non-invasive body searches without any degree of suspicion, for instance. More invasive searches, like cavity searches and involuntary body x-rays require a degree of suspicion. Whether electronic searches fall under the first category or the latter is what this lawsuit may determine. [1] https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception

basseq 9y ago

I hope this one goes to the Supreme Court, as that's the only place this will be resolved. Otherwise, U.S. Criminal Law is clear: searches and seizures at the border are exempt from requirements for warrants or probable cause. Multiple circuit courts have upheld the Government's right to do this, and that this right extends to electronic files and information. Only the Ninth has disagreed (United States v. Cotterman).