4 ms·

This has nothing to do with free speech (that's the 1st Amendment). This is a problem of illegal search and seizure (at least in the U.S.). Illegal search is co

This has nothing to do with free speech (that's the 1st Amendment). This is a problem of illegal search and seizure (at least in the U.S.). Illegal search is covered under the 4th Amendment.

sp527 9y ago
That's no longer true. The Patriot Act enables government behavior that's functionally equivalent to this incident in the U.K.
- gknoy 9y ago
  As does the fact that we now consider "the border" to include anything within 100 miles of the border.
  - nobodyorother 9y ago
    If you count the US's 98 international airports, doesn't that cover the entire country?
  - KGIII 9y ago
    You may wish to read the third paragraph on this site: https://en.m.wikipedia.org/wiki/Border_search_exception https://en.m.wikipedia.org/wiki/Border_search_exception
    - ceejayoz 9y ago
      So, I read that paragraph, and the section I think you're highlighting is this: > the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent (such as international airports) but that line cites https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer..., which is weird because it says the opposite.
      - KGIII 9y ago
        That was at a permanent checkpoint. That would be a functional equivalent, in the eyes of the court - or so I understand. For example, I live on the border - pretty much. I'm just a short drive to Canada. Border Patrol can't actually stop me and search my car, search my house, or anything like that - unless I'm going through the border. If I'm not going through the border, they need a warrant. There are no checkpoints other than at the border, but those would be functionally equivalent (in the eyes of the court). I believe temporary checkpoints also count as functional equivalents but that's a guess - I'm not sure if that's been tested in court yet. Other than those checkpoints and the border, you retain your rights as you would elsewhere. Or so precedent and SCOTUS say - except I speculate that they include temporary checkpoints along with permanent checkpoints.
        shkkmo 9y ago
        > Border Patrol can't actually stop me and search my car, search my house, or anything like that - unless I'm going through the border. The ACLU disagrees and says all the CPB needs is probable cause. >8 U.S.C. § 1357(a)(3) addresses CBP officials’authority to stop and conduct searches on vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external boundary of the United States.” Without further statutory guidance, regulations alone expansively define this “reasonable distance” as 100 air miles from any external boundary of the U.S., including coastal boundaries, unless an agency official sets a shorter distance.1CBP agentscan also even enter private property without a warrant (excepting dwellings) within 25 miles of any border. In this 100-mile zone, CBP has claimed certain extra-constitutional powers. For instance, Border Patrol claims the authority tooperate immigration checkpoints. Agents, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (more than just a "hunch"). Similarly, courts have determined that outside of Ports of Entry Border Patrol cannot search vehicles in the 100-mile zone without a warrant or "probable cause" (a reasonable belief, based on the circumstances, that an immigration violation or crime has occurred). In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority, violating the constitutional rights of innocent people. Although the 100-mile border zone is not literally "Constitution-free," CBP frequently acts like it is. https://www.aclu.org/other/aclu-factsheet-customs-and-border-protections-100-mile-zone https://www.aclu.org/other/aclu-factsheet-customs-and-border...
  - Tyrannosaur 9y ago
    As well as "the border" including any international airports, it is difficult to find a heavily populated area that is not in this zone
  - samfriedman 9y ago
    The ACLU has produced a map to this effect: https://www.aclu.org/know-your-rights-governments-100-mile-border-zone-map https://www.aclu.org/know-your-rights-governments-100-mile-b...
- ChuckMcM 9y ago
  That was not my understanding, can you tell me what part of the currently enacted PATRIOT act enables searching a US citizen without probable cause or a warrant from a court (FISA or otherwise) ?
mkempe 9y ago
Further evidence that the ideas behind the American Revolution and the Anti-Federalists were important then, and now...
openasocket 9y ago
It is a search and seizure issue. But note that the man was stopped in Heathrow airport. In the UK, as in the US and most other countries, you have to submit to searches as a precondition for air travel. It is firmly established that the government can require you to give up certain rights as a precondition of entrance to certain places. Like going through airport security, or having to go through a metal detector before entering a courthouse, etc. Which isn't to say that what happened here is not or could not be an illegal search in the US. It isn't necessarily a constitutional issue, there are/can be laws limiting what law enforcement can do.
splintercell 9y ago
Actually this is a case for 5th amendment. Police can confiscate your phone on a judge's order, but no judge can compel you to give up your password if it's protected under 5th amendment (i.e. self-incrimination).
- ringaroundthetx 9y ago
  I've seen that fall apart in the US too. The defendant tried arguing 4th amendment privacy protections over the information obtained in property that implicated him, but the judge said that didn't apply unless he admitted to owning the property which would equally incriminate him if he did, haha. very narrow protection
  - splintercell 9y ago
    Has any such case ever gone to Supreme Court?
    - ringaroundthetx 9y ago
      Nothing similar to the one I was mentioning. Always evolving protections around computational and digital properties.
- openasocket 9y ago
  The consensus of the courts is that providing a password is not considered self-incrimination. Self-incrimination means testifying against yourself. It specifically doesn't cover, say, providing a key to police so they can unlock your door and search your house (assuming they have a valid search warrant). If you had a safe that police had a warrant to search, you would have to open it for them, that is not considered self-incrimination. The courts have largely reached the consensus that unlocking or decrypting a device is like providing a lock to open a door, or opening a safe, and is not like providing testimony against yourself.
  - 627467 9y ago

This has nothing to do with free speech (that's the 1st Amendment). This is a problem of illegal search and seizure (at least in the U.S.). Illegal search is covered under the 4th Amendment.

sp527 9y ago

That's no longer true. The Patriot Act enables government behavior that's functionally equivalent to this incident in the U.K.

gknoy 9y ago
As does the fact that we now consider "the border" to include anything within 100 miles of the border.
- nobodyorother 9y ago
  If you count the US's 98 international airports, doesn't that cover the entire country?
- KGIII 9y ago
  You may wish to read the third paragraph on this site: https://en.m.wikipedia.org/wiki/Border_search_exception https://en.m.wikipedia.org/wiki/Border_search_exception
  - ceejayoz 9y ago
    So, I read that paragraph, and the section I think you're highlighting is this: > the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent (such as international airports) but that line cites https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer..., which is weird because it says the opposite.
    - KGIII 9y ago
      That was at a permanent checkpoint. That would be a functional equivalent, in the eyes of the court - or so I understand. For example, I live on the border - pretty much. I'm just a short drive to Canada. Border Patrol can't actually stop me and search my car, search my house, or anything like that - unless I'm going through the border. If I'm not going through the border, they need a warrant. There are no checkpoints other than at the border, but those would be functionally equivalent (in the eyes of the court). I believe temporary checkpoints also count as functional equivalents but that's a guess - I'm not sure if that's been tested in court yet. Other than those checkpoints and the border, you retain your rights as you would elsewhere. Or so precedent and SCOTUS say - except I speculate that they include temporary checkpoints along with permanent checkpoints.
      - shkkmo 9y ago
        > Border Patrol can't actually stop me and search my car, search my house, or anything like that - unless I'm going through the border. The ACLU disagrees and says all the CPB needs is probable cause. >8 U.S.C. § 1357(a)(3) addresses CBP officials’authority to stop and conduct searches on vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external boundary of the United States.” Without further statutory guidance, regulations alone expansively define this “reasonable distance” as 100 air miles from any external boundary of the U.S., including coastal boundaries, unless an agency official sets a shorter distance.1CBP agentscan also even enter private property without a warrant (excepting dwellings) within 25 miles of any border. In this 100-mile zone, CBP has claimed certain extra-constitutional powers. For instance, Border Patrol claims the authority tooperate immigration checkpoints. Agents, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (more than just a "hunch"). Similarly, courts have determined that outside of Ports of Entry Border Patrol cannot search vehicles in the 100-mile zone without a warrant or "probable cause" (a reasonable belief, based on the circumstances, that an immigration violation or crime has occurred). In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority, violating the constitutional rights of innocent people. Although the 100-mile border zone is not literally "Constitution-free," CBP frequently acts like it is. https://www.aclu.org/other/aclu-factsheet-customs-and-border-protections-100-mile-zone https://www.aclu.org/other/aclu-factsheet-customs-and-border...
- Tyrannosaur 9y ago
  As well as "the border" including any international airports, it is difficult to find a heavily populated area that is not in this zone
- samfriedman 9y ago
  The ACLU has produced a map to this effect: https://www.aclu.org/know-your-rights-governments-100-mile-border-zone-map https://www.aclu.org/know-your-rights-governments-100-mile-b...
ChuckMcM 9y ago
That was not my understanding, can you tell me what part of the currently enacted PATRIOT act enables searching a US citizen without probable cause or a warrant from a court (FISA or otherwise) ?

mkempe 9y ago

Further evidence that the ideas behind the American Revolution and the Anti-Federalists were important then, and now...

openasocket 9y ago

It is a search and seizure issue. But note that the man was stopped in Heathrow airport. In the UK, as in the US and most other countries, you have to submit to searches as a precondition for air travel. It is firmly established that the government can require you to give up certain rights as a precondition of entrance to certain places. Like going through airport security, or having to go through a metal detector before entering a courthouse, etc. Which isn't to say that what happened here is not or could not be an illegal search in the US. It isn't necessarily a constitutional issue, there are/can be laws limiting what law enforcement can do.

splintercell 9y ago

Actually this is a case for 5th amendment. Police can confiscate your phone on a judge's order, but no judge can compel you to give up your password if it's protected under 5th amendment (i.e. self-incrimination).

ringaroundthetx 9y ago
I've seen that fall apart in the US too. The defendant tried arguing 4th amendment privacy protections over the information obtained in property that implicated him, but the judge said that didn't apply unless he admitted to owning the property which would equally incriminate him if he did, haha. very narrow protection
- splintercell 9y ago
  Has any such case ever gone to Supreme Court?
  - ringaroundthetx 9y ago
    Nothing similar to the one I was mentioning. Always evolving protections around computational and digital properties.
openasocket 9y ago
The consensus of the courts is that providing a password is not considered self-incrimination. Self-incrimination means testifying against yourself. It specifically doesn't cover, say, providing a key to police so they can unlock your door and search your house (assuming they have a valid search warrant). If you had a safe that police had a warrant to search, you would have to open it for them, that is not considered self-incrimination. The courts have largely reached the consensus that unlocking or decrypting a device is like providing a lock to open a door, or opening a safe, and is not like providing testimony against yourself.
- 627467 9y ago