8 ms·

It's horrible but the case-law seems fairly well settled; various courts have ruled that lots of searches that would otherwise violate the 4th Amendment are tot

It's horrible but the case-law seems fairly well settled; various courts have ruled that lots of searches that would otherwise violate the 4th Amendment are totally permissible for CBP agents within 100 miles of the border and at customs checkpoints within international airports. I'd love to be surprised if there is a legitimate case here.

blattimwind 8y ago
A constitutional right that by basic geography does not apply to ~80 % of the population seems rather moronic.
- komali2 8y ago
  It's also unconstitutional, which people have been saying about the Patriot act for the last nearly two decades (Jesus how time flies) to no avail.
ghayes 8y ago
I believe it gives them a reason to conduct a search, but that still should not include compelling someone to disclose a password, which should be protected by the fifth amendment against self-incrimination.
CalChris 8y ago
That wouldn't extend to punatively confiscating his Global Entry card.
geofft 8y ago
Sure, but you should still have the right to have a lawyer confirm that for you, no? The entire reason we have the right to legal representation is that individuals are not expected to understand all the case law in the country. A lawyer can totally say "Yeah, they're allowed to search you, unlock your phone"—but the ability to confirm that with a lawyer is an important right.
- the_watcher 8y ago
  The right to an attorney is actually limited to criminal defendants, so if they don't charge you with anything, you aren't actually afforded that protection Constitutionally. So if they just detain you, they can credibly ignore this. I'm not 100% sure on how Miranda rights apply to border detainee situations, but if they do apply, you'd get a phone call. If they don't, your options are basically to wait them out.
- AstralStorm 8y ago
  I'm quite positive (not a lawyer) that unlocking records (e.g. phone, phone book, laptop etc.) is not part of any legal search and under purview of wiretapping or seizure laws, much less privacy laws. Those require a court order in general unlike a typical police search... unless CBP has leeway there too in which case it is a monster.
deleted 8y ago
[deleted]
maximilianroos 8y ago
This slightly confuses a few issues: - Under Martinez-Fuerte, CBP can briefly question anyone at a checkpoint within 100 miles of the US border to ascertain their citizenship. The only privilege over usual reasonable suspicion / probable cause searches is to ascertain citizenship (so searching your glove compartment or your pockets isn't granted). - There's a border search exception _passing through the border_, which allows for CBP to search you & your possessions, with _no_ requirement for reasonable suspicion nor a warrant. - Under Cotterman, the border search exception does _not_ extend to forensic examination of your devices. The agents need reasonable suspicion or a warrant or consent.
- geofft 8y ago
  Thanks. I was going to say—I expect (as a citizen) that within 100 miles of the border I can be searched without a warrant by CBP and be detained if I refuse, but I don't expect that I can be compelled to unlock my devices and be detained if I refuse.
  - maximilianroos 8y ago
    > I expect (as a citizen) that within 100 miles of the border I can be searched without a warrant by CBP and be detained if I refuse Expect more! Your possessions can't be searched without probable cause / consent / warrant unless you're passing through the border
  - biztos 8y ago
    Is there really a difference, in principle? "Show me what you have concealed in your pockets" vs. "Show me what you have concealed in your devices" -- aren't these two commands legally equivalent?
    - geofft 8y ago
      I think the US courts see them as different because you have different expectations about whether other (non-government) people might see them. The contents of my pocket might fall out, and they get put on a conveyor belt at airport security. But files on my phone don't have this level of visibility. I think it is also legally relevant to put a passcode on your phone.

blattimwind 8y ago

A constitutional right that by basic geography does not apply to ~80 % of the population seems rather moronic.

komali2 8y ago
It's also unconstitutional, which people have been saying about the Patriot act for the last nearly two decades (Jesus how time flies) to no avail.

ghayes 8y ago

I believe it gives them a reason to conduct a search, but that still should not include compelling someone to disclose a password, which should be protected by the fifth amendment against self-incrimination.

CalChris 8y ago

That wouldn't extend to punatively confiscating his Global Entry card.

geofft 8y ago

Sure, but you should still have the right to have a lawyer confirm that for you, no? The entire reason we have the right to legal representation is that individuals are not expected to understand all the case law in the country. A lawyer can totally say "Yeah, they're allowed to search you, unlock your phone"—but the ability to confirm that with a lawyer is an important right.

the_watcher 8y ago
The right to an attorney is actually limited to criminal defendants, so if they don't charge you with anything, you aren't actually afforded that protection Constitutionally. So if they just detain you, they can credibly ignore this. I'm not 100% sure on how Miranda rights apply to border detainee situations, but if they do apply, you'd get a phone call. If they don't, your options are basically to wait them out.
AstralStorm 8y ago
I'm quite positive (not a lawyer) that unlocking records (e.g. phone, phone book, laptop etc.) is not part of any legal search and under purview of wiretapping or seizure laws, much less privacy laws. Those require a court order in general unlike a typical police search... unless CBP has leeway there too in which case it is a monster.

deleted 8y ago

[deleted]

maximilianroos 8y ago

This slightly confuses a few issues: - Under Martinez-Fuerte, CBP can briefly question anyone at a checkpoint within 100 miles of the US border to ascertain their citizenship. The only privilege over usual reasonable suspicion / probable cause searches is to ascertain citizenship (so searching your glove compartment or your pockets isn't granted). - There's a border search exception _passing through the border_, which allows for CBP to search you & your possessions, with _no_ requirement for reasonable suspicion nor a warrant. - Under Cotterman, the border search exception does _not_ extend to forensic examination of your devices. The agents need reasonable suspicion or a warrant or consent.

geofft 8y ago
Thanks. I was going to say—I expect (as a citizen) that within 100 miles of the border I can be searched without a warrant by CBP and be detained if I refuse, but I don't expect that I can be compelled to unlock my devices and be detained if I refuse.
- maximilianroos 8y ago
  > I expect (as a citizen) that within 100 miles of the border I can be searched without a warrant by CBP and be detained if I refuse Expect more! Your possessions can't be searched without probable cause / consent / warrant unless you're passing through the border
- biztos 8y ago
  Is there really a difference, in principle? "Show me what you have concealed in your pockets" vs. "Show me what you have concealed in your devices" -- aren't these two commands legally equivalent?
  - geofft 8y ago
    I think the US courts see them as different because you have different expectations about whether other (non-government) people might see them. The contents of my pocket might fall out, and they get put on a conveyor belt at airport security. But files on my phone don't have this level of visibility. I think it is also legally relevant to put a passcode on your phone.