37 ms·

Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

2063 points by coloneltcb 7y ago

ISL 7y ago
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Sounds like the Court got it right.
- csours 7y ago
  I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
  - ISL 7y ago
    And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.
    - meroes 7y ago
      I cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.
    - lonelappde 7y ago
      It's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.
    - roywiggins 7y ago
      The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text. There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal. Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
      - ISL 7y ago
        Is a customs check reasonable without probable cause? I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.
        roywiggins 7y ago
        This court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.
        Slippery_John 7y ago
        I wonder how much effect this will actually have. Will they count rejection of voluntary search as suspicion of wrongdoing?
        roywiggins 7y ago
        It's a trial court opinion, so quite possibly not much, depending on what precedent gets set on appeal.
        hannasanarion 7y ago
        "reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion. Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833 https://lawcomic.net/guide/?p=1833
  - CharlesColeman 7y ago
    > I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. It sounds like this recent ruling may have rendered that page out of date. From your link: > According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle. From the OP: > In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
    - turc1656 7y ago
      "It sounds like this recent ruling may have rendered that page out of date." Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches. The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
      - deleted 7y ago
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      - 7y ago
  - calibas 7y ago
    Saying "rights are suspended" is a very nice way of putting it. Sounds more legit that way than what I call it, "the government breaking it's own laws".
- andrewla 7y ago
  > unreasonable
  - soledades 7y ago
    > suspicionless
- interlocutor 7y ago
  This decision only covers electronic devices. All other items can still be searched without suspicion or warrant at the border, see here: https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception
- paulddraper 7y ago
  To be fair, these searches were prior to entering the United States. In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.
  - Taniwha 7y ago
    But the searches are being done by agents of the government, the constitution limits what the government can do
  - dreamcompiler 7y ago
    What do you mean? The searches happened at US ports of entry on US soil and were conducted by agents of the US government. In many cases the victims were US citizens. It was already a clear 4th amendment violation; the court has merely affirmed that.
    - paulddraper 7y ago
      I understood that someone was denied entry to the U.S. based on a search; i.e. they couldn't enter the U.S.
- solotronics 7y ago
  Now do guns next!
CobrastanJorji 7y ago
Slight correction: "suspicionless searches OF ELECTRONIC DEVICES." Suspicionless searches of all air travelers is still very legal.
coldcode 7y ago
Good. Also given there is no one running Homeland Security I wonder if it's even likely that this will be pushed to the SC.
- 1MoreThing 7y ago
  Don't confuse the lack of a Senate-approved director with a lack of someone in power at a government agency. There are very much people running the Department of Homeland Security.
theandrewbailey 7y ago
OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.
- JumpCrisscross 7y ago
  > what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? The same thing that stops all tyranny. A vigilant and engaged citizen body. Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.
  - _Codemonkeyism 7y ago
    "The same thing that stops all tyranny. A vigilant and engaged citizen body." Because I'm interested, what would be the top three situations where that happened that come to your mind?
    - EpicEng 7y ago
      You may recall a certain war faught against the British...
      - _Codemonkeyism 7y ago
        The UK was a tyranny at that time? How would you define tyranny then?
        waterheater 7y ago
        A general definition is "oppressive power." A tyranny must be recognized. See: https://en.wikipedia.org/wiki/American_Revolution https://en.wikipedia.org/wiki/American_Revolution "The Continental Congress declared King George a tyrant who trampled the colonists' rights as Englishmen..." If you recognize a tyranny but do nothing, you stand to receive further oppression. Consider the case of the PRC. The CCP is tyrannical toward those they rule; we plainly see this reality from our perch of liberty. However, unless the Chinese people recognize the tyrannical nature of the CCP, they'll continue receiving oppression. Making this realization harder is the PRC's surveillance apparatus and the population's indoctrination. I wish them luck.
MaupitiBlue 7y ago
Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge. Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.
- pjc50 7y ago
  > That's been the common law since King Tut. Much immigration law is pure statute and dates from the 20th century. Border enforcement has varied hugely, and often included internal border and migration enforcement. (The British Empire had almost what we would call EU-style "free movement" exactly up to the point where nonwhite people started taking advantage of it in significant numbers, with the Ugandan Asians fleeing Idi Amin in the 60s.)
- ars 7y ago
  https://en.wikipedia.org/wiki/Denise_J._Casper https://en.wikipedia.org/wiki/Denise_J._Casper Obama Judge. But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.
  - booboolayla 7y ago
    If that wasn't the case, liberals wouldn't complain about Trump appointing Gorsuch, Kavanaugh, and hundreds of federal judges.
  - MaupitiBlue 7y ago
    Not quite. I’m saying that liberal judges tend to ignore the law when it comes to highly political issues. For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.
    - larkost 7y ago
      I would argue that this is not really a "liberal" thing. Up until the 1970's the courts (including the Supreme Court) regularly found that the right to bear arms was in the context of establishing a militia, and not really a personal right. They consistently citied the "A well regulated Militia" part. The law was clear. Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.
badrequest 7y ago
Kudos to the ACLU and the EFF for standing up for what is right.
akersten 7y ago
Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? Doesn't matter if it's constitutional or not if you're in a no-constitution zone.
- AnimalMuppet 7y ago
  Hmm. Has the Supreme Court ever ruled that the "special Constitution zone" was constitutional? Because, on its face, it looks like it's not...
  - deleted 7y ago
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- deleted 7y ago
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- dragonwriter 7y ago
  > Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? This is specifically about border searches, so, insofar as such a zone exists (the description is hyperbolic and more useful for motivating activism that any kind of analytical application), yes. > Doesn't matter if it's constitutional or not if you're in a no-constitution zone. There is no such thing. There is an executive-asserted 100 mile zone (statute only says a reasonable distance, and AFAIK courts have not ruled on actual boundaries) from the border in which federal officials can conduct warrantless searches of vehicles to identify people without legal permission to be in the country.
  - akersten 7y ago
    > There is no such thing. No, you admit there is such a thing, you just call it something differently. We're clearly talking about the same thing, whatever we choose to call it, it exists. What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]", I call a "no Constitution zone". It's clearer. As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation, and help people understand the crazy state of people's rights at the border, or dress it up in business language like a government-sanctioned PR release and lose a listener's interest immediately. Someone probably learned about the zone from this very thread, which wouldn't exist had I not been provocative. And is it really provocative to point out that something's not right?
Fellshard 7y ago
Open question, here: Doesn't this backfire and make TSA more likely to operate on the basis of profiling alone? What makes a traveler suspect? This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more comprehensive source. This leads to incidental systemic discrimination. That said, if 'suspicionless' is tied to concrete external evidence rather than mere profiling, this should be a good move.
- umvi 7y ago
  Unpopular opinion: why is profiling bad in context of airplane security? If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency. I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
  - StuffedParrot 7y ago
    It doesn’t work. The TSA is horrendously ineffective and is the definition of security theatre. This just hurts people needlessly. Much like the no fly list which is a huge violation of due process.
    - bitcurious 7y ago
      Israel is known for having effective airport security, as well as for making use of profiling.
      - kevinh 7y ago
        Do you have evidence that one is the cause of the other?
      - StuffedParrot 7y ago
AdmiralAsshat 7y ago
So will the CBP be ordered to destroy all the images they made of devices searched at the border?
- vilhelm_s 7y ago
  No. > As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. [...] Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” [...] even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. [...] In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2Ffield_document%2Falasaad_opinion_summary_judgment.pdf https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.h...
tus88 7y ago
But are travelers (foreigners) part of "the people"?
- Finnucane 7y ago
  If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)
  - papln 7y ago
    That's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous. https://www.senate.gov/civics/constitution_item/constitution.htm https://www.senate.gov/civics/constitution_item/constitution... 'People' have rights: > the right of the people peaceably to assemble > the right of the people to keep and bear Arms, > the right of the people to be secure in their persons, houses, papers, and effects > other [right]s retained by the people. > [powers] are reserved to the States respectively, or to the people. 'People' usually means 'voters': > chosen every second Year by the People of the several States > The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, > the people fill the vacancies by election as the legislature may direct. Government is made of 'citizens': > No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States, [etc for Senator, President] and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights: > judicial Power shall extend to all Cases ... between Citizens and ... > The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent. > All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. and makes the most interesting statement about the rights of a 'person' > nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens. You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
luckydata 7y ago
It was always CLEARLY unconstitutional. It's worrying it took so long to have it declared as such.
- ngngngng 7y ago
  As an American I'm very confused why clear constitutional violations don't warrant any repercussions on the perpetrating individuals. So I work for a company that deals with medical data, if I violate HIPAA, I don't get to just keep doing it until a federal court says stop and then walk away as if nothing happened. I'm personally held responsible for those violations. Not just my company, me. Why aren't each of these agents that obviously and egregiously violated the constitution subject to imprisonment or fines for each violation?
  - 1123581321 7y ago
    The Constitution does not specify punishments for violating it. Congress could pass legislation specifying punishments in accordance with this ruling, but it would not be retroactive.
    - wnoise 7y ago
      They did: 42 USC 1983. ( https://www.law.cornell.edu/uscode/text/42/1983 https://www.law.cornell.edu/uscode/text/42/1983 ). It technically only applies to actions by state by state (or local) officials, not federal, though SCOTUS created an equivalent for federal actions known as Bivens ( https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... ). However, SCOTUS has also limited both with the doctrine of qualified immunity. ( https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity )
      - 1123581321 7y ago
        Interesting. Thank you.
- 7y ago
gorgoiler 7y ago
I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision. Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”? The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc. The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?
- landryraccoon 7y ago
  The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087
  - raincom 7y ago
    Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
  - mark-r 7y ago
    Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction Honest question: can illegally obtained evidence be used to get a search warrant?
    - 7y ago
notjesse 7y ago
And that is why I donate to ACLU every month.
SamuelAdams 7y ago
> the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment So, does this not apply to people flying domestically?
- cdmcmahon 7y ago
  I don't have a source at the ready, but my understanding is that the existing law and/or case law determined that traveling domestically entitled one to such protection. Various federal agencies have determined via rule making that such protections do not extend to international ports of entry/airports for reasons of national security. Those determinations are what have been struck down in this case.
- dreamcompiler 7y ago
  No. TSA doesn't search smartphones and laptops, and the searches they do apply to everybody. When you search everybody equally, courts have ruled it's not a 4th amendment violation. See drunk driving checkpoints.
aerovistae 7y ago
Yeah, too bad the border control agents basically do what they want and this case means nothing. They'll do the same thing, and someone will say "But what about Alasaad v. McAleenan?" and in the small windowless holding room the agent will say "What about it? You want to leave, unlock your phone."
- landryraccoon 7y ago
  Evidence from an illegal search cannot be used in court. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087
  - vkou 7y ago
    If a border agent is giving me shit, the last thing I'm worried about is whether or not any evidence they gather is going to be used against me in court. 99.9% of the time, the most negative outcome of this kind of interaction will be losing my stuff, being arrested and held for anywhere up to 24 hours, or being denied entry. For most people, these are a compelling enough reasons to comply with a power-tripping border agent. Despite this ruling, your recourse in such a situation will remain quite limited.
    - dsfyu404ed 7y ago
      The metric the agent's boss's boss's boss cares about is convictions because that's how they justify their budget "look at all these criminals we're catching". If they can't use the illegal searches in order to convict people of crimes they're much less likely to spend the man hours doing them as routine procedure. Also, it's not exactly hard for a lawyer to argue that you were coerced into consenting to a search in your hypothetical example. Since the people crossing the border are mostly non-criminals if CPB does use those tactics routinely it will not take long at all for a suitably politically sympathetic victim to come along and precedent to be established saying that is also not ok.
      - nikanj 7y ago
_bxg1 7y ago
> An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search. Jesus Christ.
annoyingnoob 7y ago
There is hope for the US, hard to believe with the current state of affairs.
- jakeogh 7y ago
  You mean pulling out of the various wars? Or the awesome economey? Or just the BS media?
  - annoyingnoob 7y ago
    Yes.
- sneak 7y ago
  They let the border pigs keep all of the illegally and coercively stolen private information from the thousands or millions of phones they've already imaged (under the basis of "it was believed to be legal at the time"), so not really. Third-party doctrine lets them silently access your emails and IMs and texts at rest, and Section 702 as well as creative definitions of "access" let them sniff them all in transit. Privacy from the fed snoops is 100% an illusion; the entire population is under continuous realtime monitoring. This border search thing is an important but ultimately minor victory; total surveillance is the name of the game in the United States now, and likely will remain so until the country no longer exists. Strong encryption is the only defense we have against mass surveillance, but sadly most people don't care enough about their own privacy (much less that of others - the classic "What do you have to hide?") to demand it in communications products and services, so the majority of personal networked communications happens in ways that are extremely simple for the corrupt federal government to collect, analyze, and permanently store.
  - annoyingnoob 7y ago
    I think you are preaching to the choir a bit, given the HN audience. I suspect that the continuous realtime monitoring that is done by private corporations is as bad or worse. Maybe you don't win the war all at once but one battle at a time.
cgb223 7y ago
What constitutes “reasonable suspicion” in this case?
- sjs382 7y ago
  https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion
gist 7y ago
> A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. (The following (what I say) does not mean to imply that I don't agree with the ruling:) I don't get why this is a factor at all or even relevant. In particular the 'despite her informing the officer'. Why would the officer be in a position to determine a) If the plaintiff is even an attorney to begin with b) If the plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to only make a comparison) in order to prevent the phone from being searched because it might in fact contain contraband? Very convenient, right? Why in particular would the lawyers rights (because they are an attorney) be greater than any ordinary individual? Further why would it matter if an officer saw the attorney client information to begin with? The assumption is that anything they (the officer) sees would have to be kept private no matter what it was. Lastly could someone (a business person) then assert that there was material non public information on the phone and that as a reason to not search it? The point is if they did see it the officer could (in theory) trade on that information. Where does this stop?
Havoc 7y ago
A tiny bit of sanity returns to the US borders. Think I'll give it a miss for now though. The entire border crew seems like a law onto themselves. e.g. last time - got hassled about being a dual citizen (neither US). But then while standing in a queue for a metal detector (as per agent instructions) another agent pulls me out of the queue and says I don't need to do this go around there. Rest of epic long queue proceeds towards detector/search as if nothing happened...just me. Very much doubt there is any rhyme or reason behind what's happening at the borders beyond massive power trips.
dontbenebby 7y ago
IANAL, so can someone help me understand: How is this the final say if it's out of a court in Boston? Isn't that only one circuit?
- colinmhayes 7y ago
  The US has common law, so I believe this ruling becomes precedent unless it is overturned.
- vilhelm_s 7y ago
  It's not even a circuit yet, this is a district court judgement. It is not a final say.
  - iandanforth 7y ago
    Hypothetically if it weren't appealed would it be the final say?
    - vilhelm_s 7y ago
      I'm not sure what effect this judgement even has. The court declared that the search policy was unconstitutional but denied the request for an injunction, so I think right now there's nothing preventing the ICE from continuing to search devices even in that district?
    - rhino369 7y ago
      Only in the same federal district that issued the ruling. And even then its not binding. A different judge in the same district could come to a different conclusion.
- kickopotomus 7y ago
  It is not necessarily the final say. DHS may turn around and challenge the ruling which may then be picked up by the Court of Appeals for further review. However, the Court of Appeals does not have to review the case and even if they did, they very well may agree with the ruling from the district court.
SN76477 7y ago
The the authoritarians will simply move the goal post of what is suspicious.
abathur 7y ago
IANAL, but I'm reading the opinion itself and I've found it pretty accessible so far. If you find this issue interesting, you may find reading at least part of it rewarding. The ACLU has a PDF embedded on this page: https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opinion-summary-judgment https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin... Sections B-E (pages 14-47) are the most useful.
kpU8efre7r 7y ago
And that, ladies and gentleman, is the awesome side of the USA.
- corford 7y ago
  What... legal theater?
- dang 7y ago
  Please keep nationalistic flamebait off HN. Also, could you please stop posting unsubstantive comments? You've done it repeatedly lately and it's not what this site is for. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
compiler-guy 7y ago
I support this ruling very strongly, and am super-glad it went the way it did. But at the same time, if it were as obvious as just quoting the constituion, it wouldn't have made it to the Supreme Court in the first place. The SC decides cases that are difficult, not cases that are easy. Again, I believe this is the right decision, but it was no layup.
- gabelevi 7y ago
  This was just a federal court, not the Supreme Court.
- toby- 7y ago
  This didn't go to the Supreme Court. A district court in Boston heard this case.
- abtinf 7y ago
  There are many obvious cases that have made it to the Supreme Court. All it takes is a pig headed state or federal attorney general who insists on trying to uphold oppressive laws.
  - dmix 7y ago
    Just like how FISA courts have granted NSA access to whatever they want because “the person will never find out their privacy was violated, therefore it’s not that big of a deal”. This is what the Yahoo attorneys were told in one of the few partially declassified FISA court hearings by the judge when they tried to push back on a sweeping warrant, which I believe involved full emails/information for not only a group of individuals but every person they talked to 2 hops, which quickly turns into thousands of people and companies.
  - deleted 7y ago
    [deleted]
  - commanderjroc 7y ago
    Not exactly correct, the Supreme Court still has to accept the appeal onto its docket. Many of times, the Supreme Court will disregard the case and leave it to the lower courts to hash out.
rwmj 7y ago
Does "travellers" include non-US citizens?
- kova12 7y ago
  I'm not a lawyer, but afaik the Constitution protects equally citizens and not citizens
  - BrainInAJar 7y ago
    Should've gone with your first instinct. They cannot arrest you for not unlocking your phone, but you will be denied entry, forever.
jeffdavis 7y ago
This is a District court. A nice victory, but hardly "major".
RiOuseR 7y ago
We didn't need a court to tell us the obvious, but this is nice to hear.
8bitsrule 7y ago
Reasonable suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion >a legal standard of proof in United States law ... more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual.
brailsafe 7y ago
I've usually been fine crossing into the US via Canada as a Canadian, save for some cursory searches. However I don't stand out visibly or audibly. On my second last trip through, I didn't have a precise address that I was staying at on the other side of the country for a road trip, so I was taken aside. While waiting, I talked to a Canadian-German fella who had been molested for upwards of 4 hours on the basis of validating that he wasn't intending to work in the U.S. Apparently they handed him a brochure that effectively said they can do anything they want with his data and so on upon that suspicion. Likewise, my gf made what I thought was a joke that at least we weren't brown or something. At least, I thought it was a joke until I looked at the line up behind us.
devin 7y ago
Forgive my ignorance, but will this change anything at the border in the immediate term?
ComputerGuru 7y ago
This is a US District Court ruling; I think it's safe to say it's going to be appealed and find its way to the USMC. It's hard to imagine the executive branch of the federal government giving up all that power.
duxup 7y ago
Constitutional aspect aside, it seems like such a pointless / resource waste of an activity. It seems highly unlikely to dig up much of any value.
gigatexal 7y ago
Good to see common sense prevailing
Tomminn 7y ago
Next stop, how about letting a foreigner visit the US for a week without having their fingerprints taken.
- forgotmypass9 7y ago
  How about letting foreigners change airplanes without treating them like they plan to visit or be illegal immigrants? Canada, UK, I'm looking at you guys too. Last time I changed airplanes in Canada: "How long do you plan to stay in Canada?" "Well my flight leaves in three hours." "Are you bringing any nuts or fruit in to Canada?"
kong75 7y ago
How are they going to determine whether they have "reasonable suspicion"?
bsimpson 7y ago
It makes me really sad that it took a court case to decide this.
- waterheater 7y ago
  Drafting a law would be worse. Smartphones have only been around for 12 years, so no good law could have been passed because we did not fully understand how the smartphone would shake out. It took time because society needed to reckon with the newfound implications brought by such profound technological shifts. Freedom doesn't come from a drive-thru window. You have to wait at the table until the issue has cooked.
cies 7y ago
So a govt agency does something illegal. To be honest, im not thrilled. They seem to be acting against the laws they claim to uphold all the time. Do they get punished? Are they put under extra monitoring now? This is not a democracy people, this is not "trias politica". Police brutality rampant, this merely being one more case. These court rulings seem rather useless, when the same govt keeps illegal torture prisons (Guatanamo) open, where people's lives are ruined without due process.
- yqx 7y ago
  I didn't study law, but as far as I understand, illegal is not the right word here. They (govt) do things for which there is no legal precedence all the time. The court could also have found no problem with these searches. Now that they did take issue with it if the searches would continue then yes, that would be illegal.
  - t0ddbonzalez 7y ago
    "Evidence collected in breach of your constitutional rights" is probably a better way of describing the situation.
eyegor 7y ago
Hopefully this stands (or gets challenged and reaffirmed in a higher court). This is a tiny step in the right direction when it comes to the border search exception, which has been upheld in the supreme court [1, 2]. Also commonly known as the 100-mile constitution free zone [3]. [1] Almeida Sanchez vs United States [2] https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception [3] https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
2444344978 7y ago
JAWZAAT and tagdeed are sad ad banks Ig_web_button_share_sheet 2444344978 igamh
theodric 7y ago
Looks like TSA/Customs is about to get a lot more suspicious. All of these travellers, without exception, look shifty as hell.
mlang23 7y ago
Best thing is to just not have anything to do with the US of A. Death penalty, loaded guns everywhere, a general attitude of being the masters of the world which leads to things like suspicionless searches. No, thanks. I think the best would be if more people would actually stop dealing with the USA. Its becoming a trend. I once turned down an invitation to a conference in Hawai, and guess what, I was not alone.
- TheCuckedKing 7y ago
  They are the world masters, though..
- WilTimSon 7y ago
  That whole attitude of being "the greatest country in the world" always seemed so peculiar to me. I get that all countries tend to be patriotic and embellish themselves but that just sounds a bit ridiculous and antagonistic. For a country established by immigrants and populated by immigrants, you'd think the national identity would be a bit more versatile. Instead, it's been homogenized to the point where people have to fight their own perceptions to reclaim their culture and identity. It's a shame, really.
  - uwydr 7y ago
    >by immigrants and populated by immigrants By white immigrants of a more-or-less shared Christian ancestry* You make it sound like the USA was founded by a rainbow-coloured melting pot. It definitely was not
    - seanccox 7y ago
      When the Declaration of Independence was signed, Africans comprised a significant percentage of the US population (60% of SC, 40% of VA, and 20-25% of northern urban centers like Boston and Newport [1])(2). They were not white, likely not Christian, and instrumental to the establishment of the US. 1) https://teachinghistory.org/history-content/ask-a-historian/25577 https://teachinghistory.org/history-content/ask-a-historian/... 2) https://faculty.weber.edu/kmackay/statistics_on_slavery.htm https://faculty.weber.edu/kmackay/statistics_on_slavery.htm
t0ddbonzalez 7y ago
Solution: Go through border control with blank phone/laptop and restore from backup later.
- daliusd 7y ago
  That's workaround - not solution.
  - t0ddbonzalez 7y ago
    It’s a solution if it allows you to get through border control without border guards inspecting your data or imaging your phone...
- cmurf 7y ago
  Is this what the EFF, ACLU, etc. actually recommend these days? Or do they want regular Joe Citizen to be willing to subject themselves to duress by customs? If most people erase their devices, it's a kind of giving up. Accepting data loss (hopefully temporarily, but not everything is stored in the cloud, e.g. SMS messages, at least in Android phones with the original texting app) is punative. And disproportionate. And resets are a PITA for non-technical people. As a work around to avoid being harassed, to me it proves we've lost the privacy fight.
  - t0ddbonzalez 7y ago
    I don’t speak for the EFF or ACLU so ¯\_(ツ)_/¯ Speaking of disproportionate...I think it’s disproportionate to surrender my phone to DHS/ICE for unwarranted inspection in order to enter the country.
- sandebert 7y ago
  I was under the impression that going through with blank phone/laptop would in itself be considered suspicious. Is that not the case?
cmurf 7y ago
They can image my mobile device in, what, 5 minutes? Why hold it for days or weeks except as a form of coercion? You land and need your phone to retrieve the phone number for friends or family, to order rides, create and manage accommodations, and find directions. Taking someone's mobile device leaves them stranded.
- neilalexander 7y ago
  They can only image your device if they can connect to it. I don't know what Android is like in this regard, but an iPhone won't open up the USB interface to a foreign device until it has been unlocked and the device has been trusted by entering the passcode, which keeps some power in your hands. If they just take the device off you, your power is taken away in a different way, but it's still taken away from you.
  - cmurf 7y ago
    I'm not an expert. From what I can tell on my phone, USB interface isn't available unless developer options are first enabled, and then USB debugging is enabled, and the phone is unlocked, and then once an initiate USB connection is made the user needs to acknowledge the host USB trying to make a connection which requires the phone is unlocked to see and acknowledge the request. So, offhand I'm not sure to what additional degree a user is at risk if they have developer options and USB debugging enabled, if they're also unwilling to hand over their unlock code. Obviously if neither debugging nor developer options are enabled, they can be trivially enabled once the unlock code is entered.
BurnGpuBurn 7y ago
They'll probably now resort to kindly asking to view the contents of your phone and laptop, and when you don't give it to them, they'll take that as the "reasonable suspicion" they need to force you. The courts decided good, but in practice it wont matter at all.
classified 7y ago
Everyone knew that before and it didn't stop anybody. It won't stop now either. Violating the Constitution with impunity has become standard.

2063 points by coloneltcb 7y ago

ISL 7y ago

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Sounds like the Court got it right.

csours 7y ago
I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
- ISL 7y ago
  And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.
  - meroes 7y ago
    I cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.
  - lonelappde 7y ago
    It's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.
  - roywiggins 7y ago
    The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text. There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal. Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
    - ISL 7y ago
      Is a customs check reasonable without probable cause? I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.
      - roywiggins 7y ago
        This court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.
        Slippery_John 7y ago
        I wonder how much effect this will actually have. Will they count rejection of voluntary search as suspicion of wrongdoing?
        roywiggins 7y ago
        It's a trial court opinion, so quite possibly not much, depending on what precedent gets set on appeal.
        hannasanarion 7y ago
        "reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion. Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833 https://lawcomic.net/guide/?p=1833
- CharlesColeman 7y ago
  > I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended. It sounds like this recent ruling may have rendered that page out of date. From your link: > According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle. From the OP: > In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
  - turc1656 7y ago
    "It sounds like this recent ruling may have rendered that page out of date." Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches. The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
    - deleted 7y ago
      [deleted]
    - 7y ago
- calibas 7y ago
  Saying "rights are suspended" is a very nice way of putting it. Sounds more legit that way than what I call it, "the government breaking it's own laws".
andrewla 7y ago
> unreasonable
- soledades 7y ago
  > suspicionless
interlocutor 7y ago
This decision only covers electronic devices. All other items can still be searched without suspicion or warrant at the border, see here: https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception
paulddraper 7y ago
To be fair, these searches were prior to entering the United States. In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.
- Taniwha 7y ago
  But the searches are being done by agents of the government, the constitution limits what the government can do
- dreamcompiler 7y ago
  What do you mean? The searches happened at US ports of entry on US soil and were conducted by agents of the US government. In many cases the victims were US citizens. It was already a clear 4th amendment violation; the court has merely affirmed that.
  - paulddraper 7y ago
    I understood that someone was denied entry to the U.S. based on a search; i.e. they couldn't enter the U.S.
solotronics 7y ago
Now do guns next!

CobrastanJorji 7y ago

Slight correction: "suspicionless searches OF ELECTRONIC DEVICES." Suspicionless searches of all air travelers is still very legal.

coldcode 7y ago

Good. Also given there is no one running Homeland Security I wonder if it's even likely that this will be pushed to the SC.

1MoreThing 7y ago
Don't confuse the lack of a Senate-approved director with a lack of someone in power at a government agency. There are very much people running the Department of Homeland Security.

theandrewbailey 7y ago

OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.

JumpCrisscross 7y ago
> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? The same thing that stops all tyranny. A vigilant and engaged citizen body. Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.
- _Codemonkeyism 7y ago
  "The same thing that stops all tyranny. A vigilant and engaged citizen body." Because I'm interested, what would be the top three situations where that happened that come to your mind?
  - EpicEng 7y ago
    You may recall a certain war faught against the British...
    - _Codemonkeyism 7y ago
      The UK was a tyranny at that time? How would you define tyranny then?
      - waterheater 7y ago
        A general definition is "oppressive power." A tyranny must be recognized. See: https://en.wikipedia.org/wiki/American_Revolution https://en.wikipedia.org/wiki/American_Revolution "The Continental Congress declared King George a tyrant who trampled the colonists' rights as Englishmen..." If you recognize a tyranny but do nothing, you stand to receive further oppression. Consider the case of the PRC. The CCP is tyrannical toward those they rule; we plainly see this reality from our perch of liberty. However, unless the Chinese people recognize the tyrannical nature of the CCP, they'll continue receiving oppression. Making this realization harder is the PRC's surveillance apparatus and the population's indoctrination. I wish them luck.

MaupitiBlue 7y ago

Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge. Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.

pjc50 7y ago
> That's been the common law since King Tut. Much immigration law is pure statute and dates from the 20th century. Border enforcement has varied hugely, and often included internal border and migration enforcement. (The British Empire had almost what we would call EU-style "free movement" exactly up to the point where nonwhite people started taking advantage of it in significant numbers, with the Ugandan Asians fleeing Idi Amin in the 60s.)
ars 7y ago
https://en.wikipedia.org/wiki/Denise_J._Casper https://en.wikipedia.org/wiki/Denise_J._Casper Obama Judge. But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.
- booboolayla 7y ago
  If that wasn't the case, liberals wouldn't complain about Trump appointing Gorsuch, Kavanaugh, and hundreds of federal judges.
- MaupitiBlue 7y ago
  Not quite. I’m saying that liberal judges tend to ignore the law when it comes to highly political issues. For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.
  - larkost 7y ago
    I would argue that this is not really a "liberal" thing. Up until the 1970's the courts (including the Supreme Court) regularly found that the right to bear arms was in the context of establishing a militia, and not really a personal right. They consistently citied the "A well regulated Militia" part. The law was clear. Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.

badrequest 7y ago

Kudos to the ACLU and the EFF for standing up for what is right.

akersten 7y ago

Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? Doesn't matter if it's constitutional or not if you're in a no-constitution zone.

AnimalMuppet 7y ago
Hmm. Has the Supreme Court ever ruled that the "special Constitution zone" was constitutional? Because, on its face, it looks like it's not...
- deleted 7y ago
  [deleted]
deleted 7y ago
[deleted]
dragonwriter 7y ago
> Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? This is specifically about border searches, so, insofar as such a zone exists (the description is hyperbolic and more useful for motivating activism that any kind of analytical application), yes. > Doesn't matter if it's constitutional or not if you're in a no-constitution zone. There is no such thing. There is an executive-asserted 100 mile zone (statute only says a reasonable distance, and AFAIK courts have not ruled on actual boundaries) from the border in which federal officials can conduct warrantless searches of vehicles to identify people without legal permission to be in the country.
- akersten 7y ago
  > There is no such thing. No, you admit there is such a thing, you just call it something differently. We're clearly talking about the same thing, whatever we choose to call it, it exists. What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]", I call a "no Constitution zone". It's clearer. As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation, and help people understand the crazy state of people's rights at the border, or dress it up in business language like a government-sanctioned PR release and lose a listener's interest immediately. Someone probably learned about the zone from this very thread, which wouldn't exist had I not been provocative. And is it really provocative to point out that something's not right?

Fellshard 7y ago

Open question, here: Doesn't this backfire and make TSA more likely to operate on the basis of profiling alone? What makes a traveler suspect? This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more comprehensive source. This leads to incidental systemic discrimination. That said, if 'suspicionless' is tied to concrete external evidence rather than mere profiling, this should be a good move.

umvi 7y ago
Unpopular opinion: why is profiling bad in context of airplane security? If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency. I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
- StuffedParrot 7y ago
  It doesn’t work. The TSA is horrendously ineffective and is the definition of security theatre. This just hurts people needlessly. Much like the no fly list which is a huge violation of due process.
  - bitcurious 7y ago
    Israel is known for having effective airport security, as well as for making use of profiling.
    - kevinh 7y ago
      Do you have evidence that one is the cause of the other?
    - StuffedParrot 7y ago

AdmiralAsshat 7y ago

So will the CBP be ordered to destroy all the images they made of devices searched at the border?

vilhelm_s 7y ago
No. > As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. [...] Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” [...] even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. [...] In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2Ffield_document%2Falasaad_opinion_summary_judgment.pdf https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.h...

tus88 7y ago

But are travelers (foreigners) part of "the people"?

Finnucane 7y ago
If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)
- papln 7y ago
  That's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous. https://www.senate.gov/civics/constitution_item/constitution.htm https://www.senate.gov/civics/constitution_item/constitution... 'People' have rights: > the right of the people peaceably to assemble > the right of the people to keep and bear Arms, > the right of the people to be secure in their persons, houses, papers, and effects > other [right]s retained by the people. > [powers] are reserved to the States respectively, or to the people. 'People' usually means 'voters': > chosen every second Year by the People of the several States > The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, > the people fill the vacancies by election as the legislature may direct. Government is made of 'citizens': > No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States, [etc for Senator, President] and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights: > judicial Power shall extend to all Cases ... between Citizens and ... > The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent. > All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. and makes the most interesting statement about the rights of a 'person' > nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens. You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).

luckydata 7y ago

It was always CLEARLY unconstitutional. It's worrying it took so long to have it declared as such.

ngngngng 7y ago
As an American I'm very confused why clear constitutional violations don't warrant any repercussions on the perpetrating individuals. So I work for a company that deals with medical data, if I violate HIPAA, I don't get to just keep doing it until a federal court says stop and then walk away as if nothing happened. I'm personally held responsible for those violations. Not just my company, me. Why aren't each of these agents that obviously and egregiously violated the constitution subject to imprisonment or fines for each violation?
- 1123581321 7y ago
  The Constitution does not specify punishments for violating it. Congress could pass legislation specifying punishments in accordance with this ruling, but it would not be retroactive.
  - wnoise 7y ago
    They did: 42 USC 1983. ( https://www.law.cornell.edu/uscode/text/42/1983 https://www.law.cornell.edu/uscode/text/42/1983 ). It technically only applies to actions by state by state (or local) officials, not federal, though SCOTUS created an equivalent for federal actions known as Bivens ( https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... ). However, SCOTUS has also limited both with the doctrine of qualified immunity. ( https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity )
    - 1123581321 7y ago
      Interesting. Thank you.
7y ago

gorgoiler 7y ago

I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision. Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”? The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc. The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?

landryraccoon 7y ago
The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087
- raincom 7y ago
  Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
- mark-r 7y ago
  Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction Honest question: can illegally obtained evidence be used to get a search warrant?
  - 7y ago

notjesse 7y ago

And that is why I donate to ACLU every month.

SamuelAdams 7y ago

> the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment So, does this not apply to people flying domestically?

cdmcmahon 7y ago
I don't have a source at the ready, but my understanding is that the existing law and/or case law determined that traveling domestically entitled one to such protection. Various federal agencies have determined via rule making that such protections do not extend to international ports of entry/airports for reasons of national security. Those determinations are what have been struck down in this case.
dreamcompiler 7y ago
No. TSA doesn't search smartphones and laptops, and the searches they do apply to everybody. When you search everybody equally, courts have ruled it's not a 4th amendment violation. See drunk driving checkpoints.

aerovistae 7y ago

Yeah, too bad the border control agents basically do what they want and this case means nothing. They'll do the same thing, and someone will say "But what about Alasaad v. McAleenan?" and in the small windowless holding room the agent will say "What about it? You want to leave, unlock your phone."

landryraccoon 7y ago
Evidence from an illegal search cannot be used in court. https://dictionary.law.com/Default.aspx?selected=2087 https://dictionary.law.com/Default.aspx?selected=2087
- vkou 7y ago
  If a border agent is giving me shit, the last thing I'm worried about is whether or not any evidence they gather is going to be used against me in court. 99.9% of the time, the most negative outcome of this kind of interaction will be losing my stuff, being arrested and held for anywhere up to 24 hours, or being denied entry. For most people, these are a compelling enough reasons to comply with a power-tripping border agent. Despite this ruling, your recourse in such a situation will remain quite limited.
  - dsfyu404ed 7y ago
    The metric the agent's boss's boss's boss cares about is convictions because that's how they justify their budget "look at all these criminals we're catching". If they can't use the illegal searches in order to convict people of crimes they're much less likely to spend the man hours doing them as routine procedure. Also, it's not exactly hard for a lawyer to argue that you were coerced into consenting to a search in your hypothetical example. Since the people crossing the border are mostly non-criminals if CPB does use those tactics routinely it will not take long at all for a suitably politically sympathetic victim to come along and precedent to be established saying that is also not ok.
    - nikanj 7y ago

_bxg1 7y ago

> An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search. Jesus Christ.

annoyingnoob 7y ago

There is hope for the US, hard to believe with the current state of affairs.

jakeogh 7y ago
You mean pulling out of the various wars? Or the awesome economey? Or just the BS media?
- annoyingnoob 7y ago
  Yes.
sneak 7y ago
They let the border pigs keep all of the illegally and coercively stolen private information from the thousands or millions of phones they've already imaged (under the basis of "it was believed to be legal at the time"), so not really. Third-party doctrine lets them silently access your emails and IMs and texts at rest, and Section 702 as well as creative definitions of "access" let them sniff them all in transit. Privacy from the fed snoops is 100% an illusion; the entire population is under continuous realtime monitoring. This border search thing is an important but ultimately minor victory; total surveillance is the name of the game in the United States now, and likely will remain so until the country no longer exists. Strong encryption is the only defense we have against mass surveillance, but sadly most people don't care enough about their own privacy (much less that of others - the classic "What do you have to hide?") to demand it in communications products and services, so the majority of personal networked communications happens in ways that are extremely simple for the corrupt federal government to collect, analyze, and permanently store.
- annoyingnoob 7y ago
  I think you are preaching to the choir a bit, given the HN audience. I suspect that the continuous realtime monitoring that is done by private corporations is as bad or worse. Maybe you don't win the war all at once but one battle at a time.

cgb223 7y ago

What constitutes “reasonable suspicion” in this case?

sjs382 7y ago
https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion

gist 7y ago

> A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. (The following (what I say) does not mean to imply that I don't agree with the ruling:) I don't get why this is a factor at all or even relevant. In particular the 'despite her informing the officer'. Why would the officer be in a position to determine a) If the plaintiff is even an attorney to begin with b) If the plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to only make a comparison) in order to prevent the phone from being searched because it might in fact contain contraband? Very convenient, right? Why in particular would the lawyers rights (because they are an attorney) be greater than any ordinary individual? Further why would it matter if an officer saw the attorney client information to begin with? The assumption is that anything they (the officer) sees would have to be kept private no matter what it was. Lastly could someone (a business person) then assert that there was material non public information on the phone and that as a reason to not search it? The point is if they did see it the officer could (in theory) trade on that information. Where does this stop?

Havoc 7y ago

A tiny bit of sanity returns to the US borders. Think I'll give it a miss for now though. The entire border crew seems like a law onto themselves. e.g. last time - got hassled about being a dual citizen (neither US). But then while standing in a queue for a metal detector (as per agent instructions) another agent pulls me out of the queue and says I don't need to do this go around there. Rest of epic long queue proceeds towards detector/search as if nothing happened...just me. Very much doubt there is any rhyme or reason behind what's happening at the borders beyond massive power trips.

dontbenebby 7y ago

IANAL, so can someone help me understand: How is this the final say if it's out of a court in Boston? Isn't that only one circuit?

colinmhayes 7y ago
The US has common law, so I believe this ruling becomes precedent unless it is overturned.
vilhelm_s 7y ago
It's not even a circuit yet, this is a district court judgement. It is not a final say.
- iandanforth 7y ago
  Hypothetically if it weren't appealed would it be the final say?
  - vilhelm_s 7y ago
    I'm not sure what effect this judgement even has. The court declared that the search policy was unconstitutional but denied the request for an injunction, so I think right now there's nothing preventing the ICE from continuing to search devices even in that district?
  - rhino369 7y ago
    Only in the same federal district that issued the ruling. And even then its not binding. A different judge in the same district could come to a different conclusion.
kickopotomus 7y ago
It is not necessarily the final say. DHS may turn around and challenge the ruling which may then be picked up by the Court of Appeals for further review. However, the Court of Appeals does not have to review the case and even if they did, they very well may agree with the ruling from the district court.

SN76477 7y ago

The the authoritarians will simply move the goal post of what is suspicious.

abathur 7y ago

IANAL, but I'm reading the opinion itself and I've found it pretty accessible so far. If you find this issue interesting, you may find reading at least part of it rewarding. The ACLU has a PDF embedded on this page: https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opinion-summary-judgment https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin... Sections B-E (pages 14-47) are the most useful.

kpU8efre7r 7y ago

And that, ladies and gentleman, is the awesome side of the USA.

corford 7y ago
What... legal theater?
dang 7y ago
Please keep nationalistic flamebait off HN. Also, could you please stop posting unsubstantive comments? You've done it repeatedly lately and it's not what this site is for. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

compiler-guy 7y ago

I support this ruling very strongly, and am super-glad it went the way it did. But at the same time, if it were as obvious as just quoting the constituion, it wouldn't have made it to the Supreme Court in the first place. The SC decides cases that are difficult, not cases that are easy. Again, I believe this is the right decision, but it was no layup.

gabelevi 7y ago
This was just a federal court, not the Supreme Court.
toby- 7y ago
This didn't go to the Supreme Court. A district court in Boston heard this case.
abtinf 7y ago
There are many obvious cases that have made it to the Supreme Court. All it takes is a pig headed state or federal attorney general who insists on trying to uphold oppressive laws.
- dmix 7y ago
  Just like how FISA courts have granted NSA access to whatever they want because “the person will never find out their privacy was violated, therefore it’s not that big of a deal”. This is what the Yahoo attorneys were told in one of the few partially declassified FISA court hearings by the judge when they tried to push back on a sweeping warrant, which I believe involved full emails/information for not only a group of individuals but every person they talked to 2 hops, which quickly turns into thousands of people and companies.
- deleted 7y ago
  [deleted]
- commanderjroc 7y ago
  Not exactly correct, the Supreme Court still has to accept the appeal onto its docket. Many of times, the Supreme Court will disregard the case and leave it to the lower courts to hash out.

rwmj 7y ago

Does "travellers" include non-US citizens?

kova12 7y ago
I'm not a lawyer, but afaik the Constitution protects equally citizens and not citizens
- BrainInAJar 7y ago
  Should've gone with your first instinct. They cannot arrest you for not unlocking your phone, but you will be denied entry, forever.

jeffdavis 7y ago

This is a District court. A nice victory, but hardly "major".

RiOuseR 7y ago

We didn't need a court to tell us the obvious, but this is nice to hear.

8bitsrule 7y ago

Reasonable suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion >a legal standard of proof in United States law ... more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual.

brailsafe 7y ago

I've usually been fine crossing into the US via Canada as a Canadian, save for some cursory searches. However I don't stand out visibly or audibly. On my second last trip through, I didn't have a precise address that I was staying at on the other side of the country for a road trip, so I was taken aside. While waiting, I talked to a Canadian-German fella who had been molested for upwards of 4 hours on the basis of validating that he wasn't intending to work in the U.S. Apparently they handed him a brochure that effectively said they can do anything they want with his data and so on upon that suspicion. Likewise, my gf made what I thought was a joke that at least we weren't brown or something. At least, I thought it was a joke until I looked at the line up behind us.

devin 7y ago

Forgive my ignorance, but will this change anything at the border in the immediate term?

ComputerGuru 7y ago

This is a US District Court ruling; I think it's safe to say it's going to be appealed and find its way to the USMC. It's hard to imagine the executive branch of the federal government giving up all that power.

duxup 7y ago

Constitutional aspect aside, it seems like such a pointless / resource waste of an activity. It seems highly unlikely to dig up much of any value.

gigatexal 7y ago

Good to see common sense prevailing

Tomminn 7y ago

Next stop, how about letting a foreigner visit the US for a week without having their fingerprints taken.

forgotmypass9 7y ago
How about letting foreigners change airplanes without treating them like they plan to visit or be illegal immigrants? Canada, UK, I'm looking at you guys too. Last time I changed airplanes in Canada: "How long do you plan to stay in Canada?" "Well my flight leaves in three hours." "Are you bringing any nuts or fruit in to Canada?"

kong75 7y ago

How are they going to determine whether they have "reasonable suspicion"?

bsimpson 7y ago

It makes me really sad that it took a court case to decide this.

waterheater 7y ago
Drafting a law would be worse. Smartphones have only been around for 12 years, so no good law could have been passed because we did not fully understand how the smartphone would shake out. It took time because society needed to reckon with the newfound implications brought by such profound technological shifts. Freedom doesn't come from a drive-thru window. You have to wait at the table until the issue has cooked.

cies 7y ago

So a govt agency does something illegal. To be honest, im not thrilled. They seem to be acting against the laws they claim to uphold all the time. Do they get punished? Are they put under extra monitoring now? This is not a democracy people, this is not "trias politica". Police brutality rampant, this merely being one more case. These court rulings seem rather useless, when the same govt keeps illegal torture prisons (Guatanamo) open, where people's lives are ruined without due process.

yqx 7y ago
I didn't study law, but as far as I understand, illegal is not the right word here. They (govt) do things for which there is no legal precedence all the time. The court could also have found no problem with these searches. Now that they did take issue with it if the searches would continue then yes, that would be illegal.
- t0ddbonzalez 7y ago
  "Evidence collected in breach of your constitutional rights" is probably a better way of describing the situation.

eyegor 7y ago

Hopefully this stands (or gets challenged and reaffirmed in a higher court). This is a tiny step in the right direction when it comes to the border search exception, which has been upheld in the supreme court [1, 2]. Also commonly known as the 100-mile constitution free zone [3]. [1] Almeida Sanchez vs United States [2] https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception [3] https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone

2444344978 7y ago

JAWZAAT and tagdeed are sad ad banks Ig_web_button_share_sheet 2444344978 igamh

theodric 7y ago

Looks like TSA/Customs is about to get a lot more suspicious. All of these travellers, without exception, look shifty as hell.

mlang23 7y ago

Best thing is to just not have anything to do with the US of A. Death penalty, loaded guns everywhere, a general attitude of being the masters of the world which leads to things like suspicionless searches. No, thanks. I think the best would be if more people would actually stop dealing with the USA. Its becoming a trend. I once turned down an invitation to a conference in Hawai, and guess what, I was not alone.

TheCuckedKing 7y ago
They are the world masters, though..
WilTimSon 7y ago
That whole attitude of being "the greatest country in the world" always seemed so peculiar to me. I get that all countries tend to be patriotic and embellish themselves but that just sounds a bit ridiculous and antagonistic. For a country established by immigrants and populated by immigrants, you'd think the national identity would be a bit more versatile. Instead, it's been homogenized to the point where people have to fight their own perceptions to reclaim their culture and identity. It's a shame, really.
- uwydr 7y ago
  >by immigrants and populated by immigrants By white immigrants of a more-or-less shared Christian ancestry* You make it sound like the USA was founded by a rainbow-coloured melting pot. It definitely was not
  - seanccox 7y ago
    When the Declaration of Independence was signed, Africans comprised a significant percentage of the US population (60% of SC, 40% of VA, and 20-25% of northern urban centers like Boston and Newport [1])(2). They were not white, likely not Christian, and instrumental to the establishment of the US. 1) https://teachinghistory.org/history-content/ask-a-historian/25577 https://teachinghistory.org/history-content/ask-a-historian/... 2) https://faculty.weber.edu/kmackay/statistics_on_slavery.htm https://faculty.weber.edu/kmackay/statistics_on_slavery.htm

t0ddbonzalez 7y ago

Solution: Go through border control with blank phone/laptop and restore from backup later.

daliusd 7y ago
That's workaround - not solution.
- t0ddbonzalez 7y ago
  It’s a solution if it allows you to get through border control without border guards inspecting your data or imaging your phone...
cmurf 7y ago
Is this what the EFF, ACLU, etc. actually recommend these days? Or do they want regular Joe Citizen to be willing to subject themselves to duress by customs? If most people erase their devices, it's a kind of giving up. Accepting data loss (hopefully temporarily, but not everything is stored in the cloud, e.g. SMS messages, at least in Android phones with the original texting app) is punative. And disproportionate. And resets are a PITA for non-technical people. As a work around to avoid being harassed, to me it proves we've lost the privacy fight.
- t0ddbonzalez 7y ago
  I don’t speak for the EFF or ACLU so ¯\_(ツ)_/¯ Speaking of disproportionate...I think it’s disproportionate to surrender my phone to DHS/ICE for unwarranted inspection in order to enter the country.
sandebert 7y ago
I was under the impression that going through with blank phone/laptop would in itself be considered suspicious. Is that not the case?

cmurf 7y ago

They can image my mobile device in, what, 5 minutes? Why hold it for days or weeks except as a form of coercion? You land and need your phone to retrieve the phone number for friends or family, to order rides, create and manage accommodations, and find directions. Taking someone's mobile device leaves them stranded.

neilalexander 7y ago
They can only image your device if they can connect to it. I don't know what Android is like in this regard, but an iPhone won't open up the USB interface to a foreign device until it has been unlocked and the device has been trusted by entering the passcode, which keeps some power in your hands. If they just take the device off you, your power is taken away in a different way, but it's still taken away from you.
- cmurf 7y ago
  I'm not an expert. From what I can tell on my phone, USB interface isn't available unless developer options are first enabled, and then USB debugging is enabled, and the phone is unlocked, and then once an initiate USB connection is made the user needs to acknowledge the host USB trying to make a connection which requires the phone is unlocked to see and acknowledge the request. So, offhand I'm not sure to what additional degree a user is at risk if they have developer options and USB debugging enabled, if they're also unwilling to hand over their unlock code. Obviously if neither debugging nor developer options are enabled, they can be trivially enabled once the unlock code is entered.

BurnGpuBurn 7y ago

They'll probably now resort to kindly asking to view the contents of your phone and laptop, and when you don't give it to them, they'll take that as the "reasonable suspicion" they need to force you. The courts decided good, but in practice it wont matter at all.

classified 7y ago

Everyone knew that before and it didn't stop anybody. It won't stop now either. Violating the Constitution with impunity has become standard.