7 ms·

That hasn't applied at or within 100 miles of a US border point of entry since 1953.

by drspacemonkey 9y ago

ams6110 9y ago
So why does the EFF say that it does apply?
- drspacemonkey 9y ago
  The government argues that searches at international borders is a "reasonable" search, thus the 4th amendment's prohibition on "unreasonable searches and seizures" doesn't apply. The EFF disagrees. You can read their reasoning in the linked article.
  - da_chicken 9y ago
    Note that the EFF is only disputing searches of electronic devices. Nobody contests that physical border searches are reasonable.
    - ams6110 9y ago
      That makes sense now -- you're not going to be bringing in contraband plants or animals or drugs on your phone.
  - cornholio 9y ago
    It's clearly unreasonable: a customs search with the reasonable purpose of preventing contraband is used for massive intrusion in the personal life of specially selected people. It's a way government can eschew all constitutional protection for private data, by simply waiting for the target to cross a border, practical for a majority of citizens. Data is substantially different from physical possessions because it's very portable and most people do indeed carry vast amounts with them when traveling. Furthermore, in the modern world data import or export offenses (espionage) do not employ physical border crossings, so there is almost no reasonable offense the search could uncover.
    - tptacek 9y ago
      The word "reasonable" in this case is almost a term of art, meaning "the courts get to decide". Decide they have.
    - giancarlostoro 9y ago
      Whose to also say that we can trust the people doing the searches? What if someone who has top secret government documents on their phone and it gets compromised? The person sells said documents to another state, or worse yet, one of them (or their systems) is compromised by foreign hackers? Now it's a data mining point and who would suspect them to be the root cause? I don't know enough about their systems or their hiring requirements to trust them with my phone. I much rather buy a travel phone that I can pop in a SIM card when I reach my destination and isolate the information available on it.
  - giancarlostoro 9y ago
    If people are being physically abused then it is completely unreasonable.
- da_chicken 9y ago
  The 4th amendment protects against unreasonable search and seizure, and the state must show cause for conducting any search. At a border crossing, search for contraband (including contraband plants and animals which can seriously damage the United States) are an exception because it's reasonable to search people at a border crossing. https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception Here, the EFF has to show that the search that was conducted wasn't reasonable in some manner or that it otherwise violates due process. They will need to show that the execution of the search wasn't reasonable, because being subject to a search in and of itself generally is. The only SCotUS ruling on search of electronic devices has been Riley v California (https://en.wikipedia.org/wiki/Riley_v._California https://en.wikipedia.org/wiki/Riley_v._California) where they ruled that a search warrant was required to search an electronic device even when an individual has already been placed under arrest.
- deleted 9y ago
  [deleted]
justinjlynn 9y ago
That covers an unbelievably huge portion of the US population.
tptacek 9y ago
This is an urban myth, unfortunately amplified by the ACLU, that will never, ever die. The following link will take you to a multiplicity of HN posts describing why the "100 mile Constitution-free zone" is false: https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&prefix&page=0&dateRange=all&type=comment https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&pr... The short summary is: in order to be searched under the border search exemption, law enforcement either needs probable cause (like in any other search), or a demonstrable nexus to an actual border crossing. If you happen to live 5 miles from the Mexico border, the police cannot in fact search you at random, nor can CBP or ICE.
- loteck 9y ago
  Many if those posts are written by your favorite authority on this topic: you.
  - tptacek 9y ago
    They all cite my second favorite authority: the United States Supreme Court. The Court heard cases --- more than one --- directly about this question.
    - wnoise 9y ago
      Yes, and you continue to mischaracterize them (in the opposite fashion that the ACLU does). While they don't completely negate the 4th amendment in this zone, they absolutely do negate it for stops at fixed checkpoints. The fourth amendment prohibits not just unreasonable searches (which Almeida-Sanchez addressed) but also seizures. The SCOTUS majority in Martinez-Fuerte basically says that because these seizures are helpful for CBP purposes, that they're reasonable, even without the normal requirements for individual, particularized suspicion: "Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints", where a footnote clarifies that "the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol". In theory this could be challenged, in practice not. Brennan's dissent, while leaning a bit heavily on dignity concerns for my tastes squares a lot better with 4th amendment case law prior to that term. No individualized suspicion needed makes parallel construction and other selective abuses far easier to apply to a large swath of people.

That hasn't applied at or within 100 miles of a US border point of entry since 1953.

ams6110 9y ago

So why does the EFF say that it does apply?

drspacemonkey 9y ago
The government argues that searches at international borders is a "reasonable" search, thus the 4th amendment's prohibition on "unreasonable searches and seizures" doesn't apply. The EFF disagrees. You can read their reasoning in the linked article.
- da_chicken 9y ago
  Note that the EFF is only disputing searches of electronic devices. Nobody contests that physical border searches are reasonable.
  - ams6110 9y ago
    That makes sense now -- you're not going to be bringing in contraband plants or animals or drugs on your phone.
- cornholio 9y ago
  It's clearly unreasonable: a customs search with the reasonable purpose of preventing contraband is used for massive intrusion in the personal life of specially selected people. It's a way government can eschew all constitutional protection for private data, by simply waiting for the target to cross a border, practical for a majority of citizens. Data is substantially different from physical possessions because it's very portable and most people do indeed carry vast amounts with them when traveling. Furthermore, in the modern world data import or export offenses (espionage) do not employ physical border crossings, so there is almost no reasonable offense the search could uncover.
  - tptacek 9y ago
    The word "reasonable" in this case is almost a term of art, meaning "the courts get to decide". Decide they have.
  - giancarlostoro 9y ago
    Whose to also say that we can trust the people doing the searches? What if someone who has top secret government documents on their phone and it gets compromised? The person sells said documents to another state, or worse yet, one of them (or their systems) is compromised by foreign hackers? Now it's a data mining point and who would suspect them to be the root cause? I don't know enough about their systems or their hiring requirements to trust them with my phone. I much rather buy a travel phone that I can pop in a SIM card when I reach my destination and isolate the information available on it.
- giancarlostoro 9y ago
  If people are being physically abused then it is completely unreasonable.
da_chicken 9y ago
The 4th amendment protects against unreasonable search and seizure, and the state must show cause for conducting any search. At a border crossing, search for contraband (including contraband plants and animals which can seriously damage the United States) are an exception because it's reasonable to search people at a border crossing. https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception Here, the EFF has to show that the search that was conducted wasn't reasonable in some manner or that it otherwise violates due process. They will need to show that the execution of the search wasn't reasonable, because being subject to a search in and of itself generally is. The only SCotUS ruling on search of electronic devices has been Riley v California (https://en.wikipedia.org/wiki/Riley_v._California https://en.wikipedia.org/wiki/Riley_v._California) where they ruled that a search warrant was required to search an electronic device even when an individual has already been placed under arrest.
deleted 9y ago
[deleted]

justinjlynn 9y ago

That covers an unbelievably huge portion of the US population.

tptacek 9y ago

This is an urban myth, unfortunately amplified by the ACLU, that will never, ever die. The following link will take you to a multiplicity of HN posts describing why the "100 mile Constitution-free zone" is false: https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&prefix&page=0&dateRange=all&type=comment https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&pr... The short summary is: in order to be searched under the border search exemption, law enforcement either needs probable cause (like in any other search), or a demonstrable nexus to an actual border crossing. If you happen to live 5 miles from the Mexico border, the police cannot in fact search you at random, nor can CBP or ICE.

loteck 9y ago
Many if those posts are written by your favorite authority on this topic: you.
- tptacek 9y ago
  They all cite my second favorite authority: the United States Supreme Court. The Court heard cases --- more than one --- directly about this question.
  - wnoise 9y ago
    Yes, and you continue to mischaracterize them (in the opposite fashion that the ACLU does). While they don't completely negate the 4th amendment in this zone, they absolutely do negate it for stops at fixed checkpoints. The fourth amendment prohibits not just unreasonable searches (which Almeida-Sanchez addressed) but also seizures. The SCOTUS majority in Martinez-Fuerte basically says that because these seizures are helpful for CBP purposes, that they're reasonable, even without the normal requirements for individual, particularized suspicion: "Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints", where a footnote clarifies that "the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol". In theory this could be challenged, in practice not. Brennan's dissent, while leaning a bit heavily on dignity concerns for my tastes squares a lot better with 4th amendment case law prior to that term. No individualized suspicion needed makes parallel construction and other selective abuses far easier to apply to a large swath of people.