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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 th

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.
    - maximilianroos 8y ago
      A passcode offers you even more protection - you can't be compelled to divulge the passcode even with a warrant, because it would violate your 5A rights This is different from fingerprints, which can be compelled with a warrant So if you have sufficiently sensitive data, protect it with something you know, not something you have
  - maximilianroos 8y ago
    Personally, I don't think so. I think most people have a higher expectation of privacy for their data than their belongings outside their home. And the Supreme Court agrees - Riley v. California: > Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical reali- ties and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pic- tures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an el- ement of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

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.
  - maximilianroos 8y ago
    A passcode offers you even more protection - you can't be compelled to divulge the passcode even with a warrant, because it would violate your 5A rights This is different from fingerprints, which can be compelled with a warrant So if you have sufficiently sensitive data, protect it with something you know, not something you have
- maximilianroos 8y ago
  Personally, I don't think so. I think most people have a higher expectation of privacy for their data than their belongings outside their home. And the Supreme Court agrees - Riley v. California: > Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical reali- ties and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pic- tures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an el- ement of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.