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Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy"
by hannasanarion 7y ago
Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border.
In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.
CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
- swiley 7y agoIn the old days it was also routine for people to own eachother so I’m not sure how much that really means.
- Zenbit_UX 7y agoClassic whataboutism.
- hannasanarion 7y agoYeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.
- ineedasername 7y agoEh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.
- Pyxl101 7y ago> In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.
- harshreality 7y agoEvidence of the four horsemen[1]. Child porn, terrorism, drugs, and the all-encompassing "organized crime" — which can include money laundering, which in turn can mean having enough money the government wants to steal it. [1] https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalypse https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalyp...
- briandear 7y ago> Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws Child porn is prohibited to be imported in any form, including digital. Customs isn’t about just physical objects.
- deleted 7y ago[deleted]
- simonh 7y agoOf course not, but there is a degree of proportionality here. In theory a person's personal diary, letters, chequebook etc could contain evidence of crimes. However it's generally not been considered appropriate to read through them during a customs search. The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.
- ineedasername 7y agoYour examples of searching cargo aren't comparable though. The closest analog version to phone or computer searches would probably be searching an individual's private papers, personal journal, and list of contacts.
- lallysingh 7y agoThe incomparability is the point.
- ineedasername 7y agoAre you sure? The GP post seemed to be using the comparison to explain why these types of searches are in fact in line with historic border & import practices because those historic practices could include a search of cargo, luggage, etc. It certainly appeared that post was attempting a direct comparison.
- hannasanarion 7y agoNo, I was explaining that it is not an open and shut case on a bare reading of the 4th,and I was explaining CBP's theory of law for the case.
- throwaway3563 7y agoNot really the same thing. The same thing would be customs taking your phone apart with a screwdriver to search it’s physical contents.
- jupp0r 7y agoYou rightfully argue that lowering protection boundaries was necessary to uphold the law. The same logic can be applied in reverse though - there is no practical need to smuggle data into the country on a physical device nowadays, so why search devices?
- hannasanarion 7y agoI'm sure that was part of the ACLU's winning argument.
- undoware 7y ago"In the old days" is just Argument from Tradition. We also used to treat infectious disease as demonic possession. Next argument, please.
- simonh 7y agoLooking at how a law has been implemented in the past is a basic legal principle. The reason for it is to provide context as to the intent and proper way to interpret a law, in order to ensure continuity and consistency in it's application. The idea is that, all other factors being equal, continuity and consistency are desirable.
- ineedasername 7y agoThough it is also a basic legal principal to determine if the circumstances that gave rise to a law are still in effect, and if not the law may be rendered moot. So much so that laws that haven't been enforced for an extended period of time can be challenged & overturned on exactly that basis if someone suddenly finds themselves on the wrong side of such a law. I'm just making that distinction though; In this particular case, there is still a continued interest in controlling what enters & leaves the country. The specific issue with this court case revolves around whether personal electronics are truly comparable to items that have traditionally been subject to searches. The court says no, they are not comparable, which seems to make sense: Such devices are less like cargo or luggage and more like personal papers, journal, etc.
- zaksoup 7y agoIt's like everybody who's replying to you didn't read your last paragraph
- ineedasername 7y agoNo, I read that, but the author presented a viewpoint from the historic example of luggage, cargo, etc. searches and then simply stated the courts disagreed. Expanding on that to talk about why those things are in fact different and not comparable is a salient point, and not something that a reader of the GP comment would necessarily come away with otherwise.
- hannasanarion 7y agoBecause the reasons are fairly obvious to everyone here. Smartphones are basically an extension of our brains. They are our eyes, ears, mouths, and memories. Searching a smartphone (and usually copying its contents) is an invasion of privacy far beyond flipping though a ship log or traveler's diary, so that precedent isn't good enough to establish reasonableness.
- ineedasername 7y agoWell, maybe what I wrote was redundant then.