10 ms·

ACLU: Border Agents Violate Constitution When They Search Electronic Devices

234 points by hsnewman 8y ago

SolaceQuantum 8y ago
Alright so I'm actually pretty confused here- I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders including airports in the united states. Therefore violating constitutional rights is in fact perfectly legal. Is this incorrect? (I might have just been exposed to so many ways my rights have been suspended that I no longer know what rights I can even legally defend anymore.)
- zeroone101 8y ago
  It was supposed to just apply to warrants for routine searches at or near the border but has been expanded over time due to lack of oversight. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
- duxup 8y ago
  IANAL >CBP policy allows basic searches without any suspicion of wrongdoing; advanced searches require a "reasonable suspicion of activity in violation of the laws enforced or administered by CBP" or a "national security concern." U.S. Immigration and Customs Enforcement has a similar policy permitting both basic and advanced searches. I think the argument here is that while the folks protecting the border have broad powers... they still have to be protecting the border when they use them and the "advanced" search requires some level of suspicion / reason. If say they're sweeping up "advanced" phone data just as a policy or arbitrarily but without much reason beyond that there is an argument that would not fulfill the requirements of the law to do so. In this case the question seems to be if the "advanced" methods are being used properly. Also there's a frequent dance with US law where powers provided to various government entities are balanced with the constitution even if the powers provided are specifically allowed.
- carbocation 8y ago
  Has this faced a Constitutional challenge? A lot of the US population is within 100 miles of a border...
- avar 8y ago
  Whether you have "constitutional protections" isn't a boolean state. The second paragraph of the intro covers this: https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception As noted there routine stops within such areas have been upheld, but not searches without a warrant. Presumably the ACLU is looking to broaden those protection to include electronic devices.
- marcoperaza 8y ago
  That’s not quite true. My understanding is that some things are relaxed for some purposes, but it’s not just a carte blanche. So within 100 miles of the border, they can operate checkpoints and can stop vehicles for questioning, for purposes of enforcing customs and immigration law. But they cannot just search your car without a warrant (something I believe they can do at the border). It’s really a lot more reasonable than some people make it sound, considering the challenges of policing two massive land borders and a giant coastline, and that their powers are quite limited nonetheless.
- mtgx 8y ago
  > I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders including airports in the united states. By who? And who decided that arbitrary number (just because it's a nice round number doesn't mean it isn't arbitrary. And why 100 miles and not 100 yards? etc)? The Constitution is there precisely to limit overl oppressive ideas the "government" may come up with.
  - komali2 8y ago
    Patriot act. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone Border patrol still can't violate the Constitution, but in practice they do it all the time.
  - openasocket 8y ago
    It's from the 1952 Immigration and Nationality Act, here's the relevant portion: https://www.law.cornell.edu/uscode/text/8/1357#a_3 https://www.law.cornell.edu/uscode/text/8/1357#a_3 . It should be noted the constitutionality of that section has been upheld by the Supreme Court, for instance in https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... .
- rayiner 8y ago
  You’re under that impression because the ACLU did some very dishonest reporting about that subject. (I’m an ACLU member, it’s a fantastic organization. But it’s marketing people have a questionable commitment to educating the public truthfully.) The “100 mile” regulation involves the scope of CBP patrol authority: https://constitutioncenter.org/blog/does-a-constitution-free-zone-really-exist-in-america https://constitutioncenter.org/blog/does-a-constitution-free.... The law, 8 USC 1357, says that CBP agents have the power to patrol and search “a reasonable distance from the border” to prevent entry of illegal aliens. First, calling that a “Constitution-free zone” is rhetoric, not fact. 8 USC 1357 only refers to the CBP’s power to patrol and search, not other Constitutional protections. And while there can be reasonable disagreement about where the line should be, clearly there must be some distance within the US where the CBP must be able to patrol and search without a warrant. The border is an infinitely thin line. CBP can’t patrol foreign territory. It necessarily must patrol US territory some distance inward from the actual border. The “100 mile” regulation was an upper limit on what “reasonable distance” could be. The actual regulation requires the CBP to define “reasonable distance” based on geography, where border crossings are, etc. The idea is that checkpoints must be at the “functional equivalent of the border.” In the middle of the desert or the Alaska tundra, the checkpoint might reasonably not be exactly at the geographic border. But in no event can it be more than 100 miles from the geographic border. So all those graphics of how many people live within 100 miles of the border were very misleading. New York City is not within the extended border, even though it’s within 100 miles of the border, and CBP has never claimed otherwise.
  - jMyles 8y ago
    > clearly there must be some distance within the US where the CBP must be able to patrol and search. An alternative is to not have a CBP that is part of the Homeland Security apparatus and which does not patrol at all, and only conducts searches at specified border crossings and only based on suspicion of smuggling. This was the configuration of things from 1789 until 2003.
    - rayiner 8y ago
      Any border crossing checkpoint is necessarily not at the actual border (which is mathematically impossible). And it’s absolutely incorrect to claim that historically we only patrolled the border to prevent smuggling. The border patrol was established in 1924. Federal immigration officers have been around since 1891. Exercise of the authority of the US to expel aliens for national security purposes dates to the founding era.
- roywiggins 8y ago
  Certain types of searches are assumed to be reasonable when passing through a border. It's not that the fourth amendment is suspended, but that "reasonableness" is context-dependent. Some types of stops are allowed near the border (CBP border checkpoints, that sort of thing). That's what the "100 mile" thing is about. Even people held at Guantanamo Bay have some limited Constitutional rights, specifically habeas corpus rights[1]. You would have noticed if habeas corpus had been suspended 100 miles from the border (it hasn't) or if first amendment rights had (they haven't). The argument the ACLU is making in this lawsuit is that the sorts of searches that are allowed at the border (checking for contraband, etc) do not cover the sort of searches actually being done (general law enforcement). The border search exception is intentionally narrow: it's to check if people are smuggling rare birds down their pants, not to trawl for general evidence of criminality. Hence the lawsuit. [1] https://en.wikipedia.org/wiki/Boumediene_v._Bush https://en.wikipedia.org/wiki/Boumediene_v._Bush "The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is'."
- DINKDINK 8y ago
  >I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders This isn't the case. It is a meme propagated by the authoritarian political-class in the US. Refuse all searches. "However, the U.S. border is not a Constitution-free zone. The powers of border agents are tempered by our Fourth Amendment right to digital privacy, our First Amendment rights to speak and associate privately and to gather the news, our Fifth Amendment right to freedom from self-incrimination, and our Fourteenth Amendment right to freedom from discrimination." https://www.eff.org/wp/digital-privacy-us-border-2017 https://www.eff.org/wp/digital-privacy-us-border-2017 "Border Patrol, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (reasonable suspicion is more than just a "hunch"). Similarly, 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 likely occurred)." https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
mikece 8y ago
I have heard of security researchers setting up their laptops such that the default boot option will take you to a pretty vanilla-looking Ubuntu install with office apps and the like but when they reboot to do real work they log into a hardened Debian (or equivalent) install on an encrypted volume that even tech savvy CBP agents would have a hard time recognizing existed. This is great for a laptop... I wish there were cell phones that had an option like this. Perhaps the Librem 5 could support this at some point?
- duxup 8y ago
  An alternative is a chromebook. A few security folks I know power wash their cromebook, and then restore after they get to where they want to be. This also means they're not carrying their usual laptop with a bunch of sensitive things on it... and honestly that a serious chunk of the data loss problem with security it seems, folks with lots of data that straight up doesn't need to go places.... Several of my employers had HR folks with their laptops stolen. Like why did the HR person need to take a laptop downtown... and leave it in their car ... with my SSN and everything else on it. Hell why do they need it on the laptop locally EVER? (well the answer is they don't know how to do anything except work in excel files, but that's is its own problem)
  - anonymousab 8y ago
    >and then restore after they get to where they want to be It seems like the clear workaround is to ask travelers if this is the case, and to ask for their passwords to any popular sites that provide this service. A clean laptop workspace* is suspicious on its own. I suppose you could lie about it, gamble that they would have no way of knowing that you're lying. But that's not a fun game to play long term.
    - gregmac 8y ago
      > It seems like the clear workaround is to ask travelers if this is the case, and to ask for their passwords to any popular sites that provide this service. A clean laptop desktop is suspicious on its own. So someone wanting to hide something will simply create false 'clean' accounts they can provide access to, while keeping the stuff they want hidden, hidden. Meanwhile, innocent people are getting their security compromised and privacy violated. Even worse, the authorities could claim the sites they did provide passwords to are 'too clean' and thus they must be hiding something and hold them ... until they give up passwords to accounts that may not even exist? When I was in public school, the school blocked several popular sites from the school network. As an unintended result, it provided me a great education about DNS, forward and reverse proxy servers, VPNs, and related tech as I figured out the dozens of ways to work around the blocks. Think the same thing wouldn't happen here? All you're left with is catching only the stupidest criminals, violating the privacy of innocent people, more than likely finding a bunch of false positives of whatever you're looking for, and at the same time forcing the actual criminals to become smarter about their opsec (making it harder to catch them -- in general, not just at the border) and still not catching them.
sandworm101 8y ago
I'm reminded of the wikileaks associate who arrived at JFK and was detained. The police were screaming mad about him not unlocking his electronic devices. Problem: he didn't bring any electronic devices. If you have to cross into the US, encrypt everything using something like Truecrypt and stash it online. Read a book on the plane.
- jMyles 8y ago
  Is there a problem with dm_crypt? I can't afford to lose work time every time I fly internationally.
  - maze-le 8y ago
    No, but when you refuse to unlock it, it could mean that the device is confiscated indefinitely. Where an encrypted container, delivered over a cloud-storage provider is not immediately tied to you at the border.
    - jMyles 8y ago
      > but when you refuse to unlock it, it could mean that the device is confiscated indefinitely Has that actually happened in the case of a device belonging to a person legally authorized to enter the USA? That's rough. In any case, I typically travel with a wiped (but backed up) phone and an encrypted (but backed up) laptop. One thing I haven't fully figured out is how to manage travel photography - it's not easy to back up tens of gigs remotely, so I usually just end up traveling with it encrypted on my laptop hard drive but not otherwise backed up.
      - mLuby 8y ago
        On the photography side, you could either upload each day from hotel/coffeeshop wifi or put it on an SD card (which could be searched and confiscated).
        estebank 8y ago

234 points by hsnewman 8y ago

Alright so I'm actually pretty confused here- I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders including airports in the united states. Therefore violating constitutional rights is in fact perfectly legal. Is this incorrect? (I might have just been exposed to so many ways my rights have been suspended that I no longer know what rights I can even legally defend anymore.)

zeroone101 8y ago
It was supposed to just apply to warrants for routine searches at or near the border but has been expanded over time due to lack of oversight. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
duxup 8y ago
IANAL >CBP policy allows basic searches without any suspicion of wrongdoing; advanced searches require a "reasonable suspicion of activity in violation of the laws enforced or administered by CBP" or a "national security concern." U.S. Immigration and Customs Enforcement has a similar policy permitting both basic and advanced searches. I think the argument here is that while the folks protecting the border have broad powers... they still have to be protecting the border when they use them and the "advanced" search requires some level of suspicion / reason. If say they're sweeping up "advanced" phone data just as a policy or arbitrarily but without much reason beyond that there is an argument that would not fulfill the requirements of the law to do so. In this case the question seems to be if the "advanced" methods are being used properly. Also there's a frequent dance with US law where powers provided to various government entities are balanced with the constitution even if the powers provided are specifically allowed.
carbocation 8y ago
Has this faced a Constitutional challenge? A lot of the US population is within 100 miles of a border...
avar 8y ago
Whether you have "constitutional protections" isn't a boolean state. The second paragraph of the intro covers this: https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception As noted there routine stops within such areas have been upheld, but not searches without a warrant. Presumably the ACLU is looking to broaden those protection to include electronic devices.
marcoperaza 8y ago
That’s not quite true. My understanding is that some things are relaxed for some purposes, but it’s not just a carte blanche. So within 100 miles of the border, they can operate checkpoints and can stop vehicles for questioning, for purposes of enforcing customs and immigration law. But they cannot just search your car without a warrant (something I believe they can do at the border). It’s really a lot more reasonable than some people make it sound, considering the challenges of policing two massive land borders and a giant coastline, and that their powers are quite limited nonetheless.
mtgx 8y ago
> I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders including airports in the united states. By who? And who decided that arbitrary number (just because it's a nice round number doesn't mean it isn't arbitrary. And why 100 miles and not 100 yards? etc)? The Constitution is there precisely to limit overl oppressive ideas the "government" may come up with.
- komali2 8y ago
  Patriot act. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone Border patrol still can't violate the Constitution, but in practice they do it all the time.
- openasocket 8y ago
  It's from the 1952 Immigration and Nationality Act, here's the relevant portion: https://www.law.cornell.edu/uscode/text/8/1357#a_3 https://www.law.cornell.edu/uscode/text/8/1357#a_3 . It should be noted the constitutionality of that section has been upheld by the Supreme Court, for instance in https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... .
rayiner 8y ago
You’re under that impression because the ACLU did some very dishonest reporting about that subject. (I’m an ACLU member, it’s a fantastic organization. But it’s marketing people have a questionable commitment to educating the public truthfully.) The “100 mile” regulation involves the scope of CBP patrol authority: https://constitutioncenter.org/blog/does-a-constitution-free-zone-really-exist-in-america https://constitutioncenter.org/blog/does-a-constitution-free.... The law, 8 USC 1357, says that CBP agents have the power to patrol and search “a reasonable distance from the border” to prevent entry of illegal aliens. First, calling that a “Constitution-free zone” is rhetoric, not fact. 8 USC 1357 only refers to the CBP’s power to patrol and search, not other Constitutional protections. And while there can be reasonable disagreement about where the line should be, clearly there must be some distance within the US where the CBP must be able to patrol and search without a warrant. The border is an infinitely thin line. CBP can’t patrol foreign territory. It necessarily must patrol US territory some distance inward from the actual border. The “100 mile” regulation was an upper limit on what “reasonable distance” could be. The actual regulation requires the CBP to define “reasonable distance” based on geography, where border crossings are, etc. The idea is that checkpoints must be at the “functional equivalent of the border.” In the middle of the desert or the Alaska tundra, the checkpoint might reasonably not be exactly at the geographic border. But in no event can it be more than 100 miles from the geographic border. So all those graphics of how many people live within 100 miles of the border were very misleading. New York City is not within the extended border, even though it’s within 100 miles of the border, and CBP has never claimed otherwise.
- jMyles 8y ago
  > clearly there must be some distance within the US where the CBP must be able to patrol and search. An alternative is to not have a CBP that is part of the Homeland Security apparatus and which does not patrol at all, and only conducts searches at specified border crossings and only based on suspicion of smuggling. This was the configuration of things from 1789 until 2003.
  - rayiner 8y ago
    Any border crossing checkpoint is necessarily not at the actual border (which is mathematically impossible). And it’s absolutely incorrect to claim that historically we only patrolled the border to prevent smuggling. The border patrol was established in 1924. Federal immigration officers have been around since 1891. Exercise of the authority of the US to expel aliens for national security purposes dates to the founding era.
roywiggins 8y ago
Certain types of searches are assumed to be reasonable when passing through a border. It's not that the fourth amendment is suspended, but that "reasonableness" is context-dependent. Some types of stops are allowed near the border (CBP border checkpoints, that sort of thing). That's what the "100 mile" thing is about. Even people held at Guantanamo Bay have some limited Constitutional rights, specifically habeas corpus rights[1]. You would have noticed if habeas corpus had been suspended 100 miles from the border (it hasn't) or if first amendment rights had (they haven't). The argument the ACLU is making in this lawsuit is that the sorts of searches that are allowed at the border (checking for contraband, etc) do not cover the sort of searches actually being done (general law enforcement). The border search exception is intentionally narrow: it's to check if people are smuggling rare birds down their pants, not to trawl for general evidence of criminality. Hence the lawsuit. [1] https://en.wikipedia.org/wiki/Boumediene_v._Bush https://en.wikipedia.org/wiki/Boumediene_v._Bush "The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is'."
DINKDINK 8y ago
>I was under the impression that the constitutional protections of all citizens have been suspended 100 miles from all borders This isn't the case. It is a meme propagated by the authoritarian political-class in the US. Refuse all searches. "However, the U.S. border is not a Constitution-free zone. The powers of border agents are tempered by our Fourth Amendment right to digital privacy, our First Amendment rights to speak and associate privately and to gather the news, our Fifth Amendment right to freedom from self-incrimination, and our Fourteenth Amendment right to freedom from discrimination." https://www.eff.org/wp/digital-privacy-us-border-2017 https://www.eff.org/wp/digital-privacy-us-border-2017 "Border Patrol, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (reasonable suspicion is more than just a "hunch"). Similarly, 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 likely occurred)." https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone

mikece 8y ago

I have heard of security researchers setting up their laptops such that the default boot option will take you to a pretty vanilla-looking Ubuntu install with office apps and the like but when they reboot to do real work they log into a hardened Debian (or equivalent) install on an encrypted volume that even tech savvy CBP agents would have a hard time recognizing existed. This is great for a laptop... I wish there were cell phones that had an option like this. Perhaps the Librem 5 could support this at some point?

duxup 8y ago
An alternative is a chromebook. A few security folks I know power wash their cromebook, and then restore after they get to where they want to be. This also means they're not carrying their usual laptop with a bunch of sensitive things on it... and honestly that a serious chunk of the data loss problem with security it seems, folks with lots of data that straight up doesn't need to go places.... Several of my employers had HR folks with their laptops stolen. Like why did the HR person need to take a laptop downtown... and leave it in their car ... with my SSN and everything else on it. Hell why do they need it on the laptop locally EVER? (well the answer is they don't know how to do anything except work in excel files, but that's is its own problem)
- anonymousab 8y ago
  >and then restore after they get to where they want to be It seems like the clear workaround is to ask travelers if this is the case, and to ask for their passwords to any popular sites that provide this service. A clean laptop workspace* is suspicious on its own. I suppose you could lie about it, gamble that they would have no way of knowing that you're lying. But that's not a fun game to play long term.
  - gregmac 8y ago
    > It seems like the clear workaround is to ask travelers if this is the case, and to ask for their passwords to any popular sites that provide this service. A clean laptop desktop is suspicious on its own. So someone wanting to hide something will simply create false 'clean' accounts they can provide access to, while keeping the stuff they want hidden, hidden. Meanwhile, innocent people are getting their security compromised and privacy violated. Even worse, the authorities could claim the sites they did provide passwords to are 'too clean' and thus they must be hiding something and hold them ... until they give up passwords to accounts that may not even exist? When I was in public school, the school blocked several popular sites from the school network. As an unintended result, it provided me a great education about DNS, forward and reverse proxy servers, VPNs, and related tech as I figured out the dozens of ways to work around the blocks. Think the same thing wouldn't happen here? All you're left with is catching only the stupidest criminals, violating the privacy of innocent people, more than likely finding a bunch of false positives of whatever you're looking for, and at the same time forcing the actual criminals to become smarter about their opsec (making it harder to catch them -- in general, not just at the border) and still not catching them.

sandworm101 8y ago

I'm reminded of the wikileaks associate who arrived at JFK and was detained. The police were screaming mad about him not unlocking his electronic devices. Problem: he didn't bring any electronic devices. If you have to cross into the US, encrypt everything using something like Truecrypt and stash it online. Read a book on the plane.

jMyles 8y ago
Is there a problem with dm_crypt? I can't afford to lose work time every time I fly internationally.
- maze-le 8y ago
  No, but when you refuse to unlock it, it could mean that the device is confiscated indefinitely. Where an encrypted container, delivered over a cloud-storage provider is not immediately tied to you at the border.
  - jMyles 8y ago
    > but when you refuse to unlock it, it could mean that the device is confiscated indefinitely Has that actually happened in the case of a device belonging to a person legally authorized to enter the USA? That's rough. In any case, I typically travel with a wiped (but backed up) phone and an encrypted (but backed up) laptop. One thing I haven't fully figured out is how to manage travel photography - it's not easy to back up tens of gigs remotely, so I usually just end up traveling with it encrypted on my laptop hard drive but not otherwise backed up.
    - mLuby 8y ago
      On the photography side, you could either upload each day from hotel/coffeeshop wifi or put it on an SD card (which could be searched and confiscated).
      - estebank 8y ago