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It was my understanding that 5-th amendment protections against unreasonable searches are suspended at the border. That would certainly include customs at the a

by rocqua 8y ago

It was my understanding that 5-th amendment protections against unreasonable searches are suspended at the border. That would certainly include customs at the airport. So, in a strict legal sense, demanding to unlock a device does not violate the 5th.

Tharkun 8y ago
As a non-American, can someone explain to me why the entire constitution wouldn't be applicable upon entering your own country? This makes no sense to me, but it seems to be the way it is?
- roywiggins 8y ago
  It's called the "border search exception." It's not exactly that the constitution does not apply, but that certain searches are- in the context of the border- considered "reasonable", that would not be in the interior. The 4th amendment is not an absolute right- a search just has to be "reasonable;" context is a big factor into whether a search is reasonable. https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception > This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures". According to Wikipedia, there is currently a circuit split* on whether phone searches at the border require individualized suspicion, or can be conducted routinely, without falling foul of the 4th amendment. * (two sets of appeals courts have ruled in contradictory ways; these splits can be resolved by SCOTUS if they choose)
criddell 8y ago
And if a US citizen refuses to unlock a device, what do you think the consequences could be?
roywiggins 8y ago
the ACLU complaint is based on the 4th amendment right against unreasonable search. He demanded to speak to his lawyer and was thereafter allowed to leave, so his 5th amendment rights were not actually abridged. That's how the 5th amendment works, and it worked at the border. https://www.aclunc.org/docs/ACLU-NC_2019-03-28_Letter_re._Electronic_Device_Search_SFO.pdf https://www.aclunc.org/docs/ACLU-NC_2019-03-28_Letter_re._El... > CBP must ensure that its officers comply with the U.S. Constitution. Even at the border, the search of an electronic device is governed by the Fourth Amendment. To satisfy Ninth Circuit and Supreme Court law concerning electronic searches, any such search should be based on a warrant and be limited in scope to information relevant to the agency’s legitimate purpose in conducting the search. The attempted unconstitutional search of Dr. Gal’s devices illustrates that CBP’s policies do not in fact include the requirements necessary to safeguard the constitutional rights of people at the border
- tptacek 8y ago
  Right, he meant to say that 4th amendment protections are suspended at the border, and, while you might quibble with that wording, it's a valid point: border searches usually don't require a warrant, owing to the border search exception, which has precedent going all the way back to the founders.
adventured 8y ago
> It was my understanding that 5-th amendment protections against unreasonable searches are suspended at the border. That would certainly include customs at the airport. This isn't true and has never been backed up by a court ruling, including at the Supreme Court. Currently there is no legal foundation to the premise that any rights for US citizens are suspended just because you're at the border (typically people refer to the premise as also including N miles inside of the border, eg 100 or 300 miles). Right now what you have is a few government agencies attempting to write over the Constitution, without anything to actually support their doing so. They go out of their way to avoid an actual court confrontation with their fake / invented 'laws,' knowing that they'll lose.
snazz 8y ago
It sure shouldn’t be. Can you point to a law (it would have to be an amendment to the Constitution) that codifies this? As far as I know, it’s only practically a “constitutional exclusion zone”, not legally.
- roywiggins 8y ago
  The fourth amendment has been interpreted by SCOTUS in such a way that certain things are "reasonable" near the border that would not be further away from it. https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... SCOTUS is, for good and ill, the last word on what's Constitutional, until it changes its mind.

by rocqua 8y ago

Tharkun 8y ago

As a non-American, can someone explain to me why the entire constitution wouldn't be applicable upon entering your own country? This makes no sense to me, but it seems to be the way it is?

roywiggins 8y ago
It's called the "border search exception." It's not exactly that the constitution does not apply, but that certain searches are- in the context of the border- considered "reasonable", that would not be in the interior. The 4th amendment is not an absolute right- a search just has to be "reasonable;" context is a big factor into whether a search is reasonable. https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception > This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures". According to Wikipedia, there is currently a circuit split* on whether phone searches at the border require individualized suspicion, or can be conducted routinely, without falling foul of the 4th amendment. * (two sets of appeals courts have ruled in contradictory ways; these splits can be resolved by SCOTUS if they choose)

criddell 8y ago

And if a US citizen refuses to unlock a device, what do you think the consequences could be?

roywiggins 8y ago

the ACLU complaint is based on the 4th amendment right against unreasonable search. He demanded to speak to his lawyer and was thereafter allowed to leave, so his 5th amendment rights were not actually abridged. That's how the 5th amendment works, and it worked at the border. https://www.aclunc.org/docs/ACLU-NC_2019-03-28_Letter_re._Electronic_Device_Search_SFO.pdf https://www.aclunc.org/docs/ACLU-NC_2019-03-28_Letter_re._El... > CBP must ensure that its officers comply with the U.S. Constitution. Even at the border, the search of an electronic device is governed by the Fourth Amendment. To satisfy Ninth Circuit and Supreme Court law concerning electronic searches, any such search should be based on a warrant and be limited in scope to information relevant to the agency’s legitimate purpose in conducting the search. The attempted unconstitutional search of Dr. Gal’s devices illustrates that CBP’s policies do not in fact include the requirements necessary to safeguard the constitutional rights of people at the border

tptacek 8y ago
Right, he meant to say that 4th amendment protections are suspended at the border, and, while you might quibble with that wording, it's a valid point: border searches usually don't require a warrant, owing to the border search exception, which has precedent going all the way back to the founders.

adventured 8y ago

> It was my understanding that 5-th amendment protections against unreasonable searches are suspended at the border. That would certainly include customs at the airport. This isn't true and has never been backed up by a court ruling, including at the Supreme Court. Currently there is no legal foundation to the premise that any rights for US citizens are suspended just because you're at the border (typically people refer to the premise as also including N miles inside of the border, eg 100 or 300 miles). Right now what you have is a few government agencies attempting to write over the Constitution, without anything to actually support their doing so. They go out of their way to avoid an actual court confrontation with their fake / invented 'laws,' knowing that they'll lose.

snazz 8y ago

It sure shouldn’t be. Can you point to a law (it would have to be an amendment to the Constitution) that codifies this? As far as I know, it’s only practically a “constitutional exclusion zone”, not legally.

roywiggins 8y ago
The fourth amendment has been interpreted by SCOTUS in such a way that certain things are "reasonable" near the border that would not be further away from it. https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... SCOTUS is, for good and ill, the last word on what's Constitutional, until it changes its mind.