26 ms·

I'm not sure I missed something, the title says "Americans" but I couldn't find an elaboration on exactly _who_ is subject to these searches. The ACLU [0] seems

by vageli 4y ago

I'm not sure I missed something, the title says "Americans" but I couldn't find an elaboration on exactly _who_ is subject to these searches. The ACLU [0] seems to contend that, at least, US citizens are not subject to these measures. [0]: https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-airports-and-other-ports-entry-us https://www.aclu.org/know-your-rights/what-do-when-encounter...

jaarse 4y ago
From reading the directive it appears as though they don’t have an exemption for Americans: https://www.dhs.gov/sites/default/files/publications/PIA-CBP%20-%20Border-Searches-of-Electronic-Devices%20-January-2018%20-%20Compliant.pdf https://www.dhs.gov/sites/default/files/publications/PIA-CBP... Of course the official response is what you would expect: “CBP officials declined, however, to answer questions about how many Americans’ phone records are in the database, how many searches have been run or how long the practice has gone on, saying it has made no additional statistics available “due to law enforcement sensitivities and national security implications.””
- KMnO4 4y ago
  > national security implications There’s nothing more American than spying on your own people and blaming it on terrorists.
  - londons_explore 4y ago
    A government that doesn't keep good enough control if it's people will soon be overthrown. When you give the people more freedom to protest, organise, mass communicate easily etc, you also have to add equal amounts of monitoring and restrictions to make sure that next movement to overthrow the government can't pick up speed without you catching it.
    - thesuitonym 4y ago
      A government controlled by its people, instead of controlling its people, doesn't need to worry about being overthrown.
      - lazyier 4y ago
        Yeah, but that defeats the purpose of creating the state in the first place. The entire point is being able to tell people what to do for your own profit. It's a lot easier if you pretend you are doing it for the subject's benefit as it reduces the resistance to rule immensely. But you don't want to let that go too far or they start getting a big head and start thinking that paying you billions of dollars is optional.
        unethical_ban 4y ago
        There are legitimate reasons for a State to exist.
    - throwawayacc2 4y ago
      We wouldn’t want those pesky commies, ahh sorry, that was the 50s and 60s, those darn uppity negroes, ahh sorry again, my bad, that was civil rights era, those blasted … err, commies again? They made a comeback in the 80s it seems. Ahh there it is. We don’t want those crazy islamist terrorists harming our people. We need to protect your freedom … by curtailing it, of course. Sorry, sorry, I’ve just been informed, the boogieman is no longer islamic terrorists. Now, it’s called radical white supremacist qanon Jan 6 anti vax conspiracy incel nationalist. My bad. I apologise. But the curtailing of freedom will continue and the surveillance will increase. In order to safeguard our freedom and privacy, of course.
      - toss1 4y ago
        If you cannot see the difference between civil rights movements attempting to change governing to be more even-handed vs expansionist authoritarian governments or movements attempting to destroy democratic governments altogether, you need serious help (and should at least stop broadcasting your ignorance).
  - freeflight 4y ago
    Or make them spy on each other to find even more "terrorists" [0] [0] https://www.dhs.gov/see-something-say-something https://www.dhs.gov/see-something-say-something
- engineer_22 4y ago
  It's tiring that "national security" is thrown around to justify stonewalling. Does anyone audit the "national security" excuse? An Ombudsman? Where does policing end and national security begin? Oh well, I'll buy a thin-blue-line flag for my lawn and sleep easy, trust the good-guys.
  - pydry 4y ago
    Did this ever not happen? To fight these people you have to be some combination of powerful, morally spotless and willing to make great personal sacrifices - like Chelsea Manning.
    - engineer_22 4y ago
      The last 3 words were so unexpected...
- xoa 4y ago
  There is a split here between law and practicality for many people I guess. As a matter of law for US Citizens it doesn't matter whether there is an "exemption" or not: a US Citizen may not be denied entry at a land port of entry, period. Their property can potentially be taken but only with legal process and it can't be kept indefinitely without violation of law. If they're wanted for a crime they can of course be arrested from which the normal legal process within the US plays out, but all the normal requirements are there too. They can be asked additional questions and put through more inspection, but with citizenship established that's it. So if someone simply refuses to answer any questions or unlock their phone and there is no further reasonable cause there is nothing the CBP can legally do to keep them out. But as a practical matter most people don't want to spend an extra hour or hours or even extra minutes going through a more detailed search for contraband or whatever else. Most don't want to, aren't ready for and/or can't afford having electronic devices held for days/weeks before getting them back. A lot of people simply don't know their rights. So without an explicit exemption a lot of Americans undoubtedly would submit "voluntarily". So the ACLU isn't wrong (and their actual page is appropriately more nuanced [0]): Americans aren't "subject" in the legal sense to this, or to any other questions beyond what's needed to establish citizenship. Having done so they may politely insist on entry and refuse anything else, demand to see a supervisor if an agent persists in unconstitutional questioning, submit any property required while in response demanding receipts and pursuing complaints or legal action afterwards (or both), and at the end of the day the CBP must put up or shut up: let them through or arrest them, and for the latter will have to meet the legal standard and it'll all play out domestically. But at the same time the financial and other burdens this imposes are very real and serious. Best practice would be to go as "clean" through the border as possible, preferably with a dedicated phone that only has minimum necessary travel and navigation data on it and nothing else, no logging into any personal accounts of any kind, no bookmarks or the like, and cheap enough to not care about losing it. Then one can just let border agents look through whatever as much as they'd like, or let them take it and just write it off. Not everyone can or knows to even consider that possibility though. And of course the vast majority never have a problem, so it's insurance against a "black swan event" for the average person (those who suspect they'll be subject to heightened scrutiny legally or not may already do this). It's valuable to note both the exact state of the law and when the practical effect is different. ---- 0: ACLU: "If you are a U.S. citizen, you need only answer questions establishing your identity and citizenship, although refusing to answer routine questions about the nature and purpose of your travel could result in delay and/or further inspection." Or later "U.S. citizens have the right to enter the United States, so if you are a U.S. citizen and the officers’ questions become intrusive, you can decline to answer those questions, but you should be aware that doing so may result in delay and/or further inspection". So the ACLU does acknowledge a practical cost to insisting on your rights, they aren't merely blindly saying "not subject".
ep103 4y ago
I mean, that's great and all, but IIRC this Supreme Court has been instituting a policy of Absolute Immunity related to immigration issues via Egbert v. Boule. If one has absolute immunity, the law simply isn't a concern for federal border security.
- giantg2 4y ago
  If I remember correctly, it's not complete immunity, but they require a compensation mechanism approved by congress for any issue that doesn't have prior history of being compensated explicitly similar to the situation at hand. It's like 99% immunity.
  - ep103 4y ago
    Right, so federal agents receive absolute immunity by default, and this is guaranteed to continue for every new issue, unless Congress magically becomes un-gridlocked in the meanwhile AND chooses to solve this issue AND chooses to do so every time a new unprecedent issue occurs involving a federal agent.
    - giantg2 4y ago
      It's not absolute. It's just the default. There are specific scenarios where it doesn't apply.
mercy_dude 4y ago
throwoutway 4y ago
The ACLU is wrong. The border does it all the time. Here is the one that sticks out in my mind as the most popular case: https://gizmodo.com/border-agent-demands-nasa-scientist-unlock-phone-before-1792275942 https://gizmodo.com/border-agent-demands-nasa-scientist-unlo...
- xoa 4y ago
  >The ACLU is wrong. The border does it all the time. Here is the one that sticks out in my mind as the most popular case: The ACLU is not wrong, if you actually read their actual words. Your case doesn't say what you think it does. From your own article: >Bikkannavar insisted that he wasn’t allowed to do that because the phone belonged to NASA’s JPL and he’s required to protect access. Agents insisted and he finally relented. As far as the law is concerned, he voluntarily let them look at it. It doesn't matter if they "insisted", he could have told them to pound sand. They could have kept the phone, but in its locked state it presumably wouldn't be that useful, and particularly since it wasn't merely a personal device JPL's legal department then could have easily gone right after them for it and won. Just because we have the legal right to something doesn't mean there is some magic barrier preventing LEOs from attempting to violating them, or implying the right doesn't exist. They have to be defended by people exercising them and potentially going to court. The very next paragraph states: >Hassan Shibly, chief executive director of CAIR Florida, tells The Verge that most people who are shown the form giving CBP authority to search their device believe that they have an obligation to help the agents. “They’re not obligated to unlock the phone,” she says. Right, same as a police officer who asks if they can "look around" or "ask a few questions". They may certainly ask that. You may choose to cooperate. But in general you'd be a fool to do so, and you also may say "no". If they arrest you they were almost certainly going to do so anyway but now they have less to go on and with more avenues to challenge it, and if they arrest you over exercising your rights you have a strong cause of action right there. CBP agents may well ask people this sort of thing all the time, but that doesn't mean citizens must comply.
  - oneplane 4y ago
    That sounds great when typing it up on the internet in a comfortable chair, but when a few power hungry workers with guns are breathing down your neck in a small room you can't get out of, the rules aren't going to make you feel 'safe'.
laweijfmvo 4y ago
Also relevant/interesting is this "exception" the US government claims to the Constitution: https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone I've heard of "border" being applied to anywhere 100 miles from an _airport_, but can't find the reference, which would cover like 99% of the country.
- JohnFen 4y ago
  From international airports. International airports themselves count as "the border", for obvious reasons.
Spooky23 4y ago
They cannot deny a US citizen entry, but they can still mess with you.
nomdep 4y ago
They are searching anybody who they please, even Americans
pigtailgirl 4y ago
https://legalservicesincorporated.com/immigration/border-phone-search/ https://legalservicesincorporated.com/immigration/border-pho... https://www.theverge.com/2021/2/10/22276183/us-appeals-court-first-circuit-border-phone-search-decision-fourth-amendment https://www.theverge.com/2021/2/10/22276183/us-appeals-court... "The court held that the government’s policy, described above, does not violate the Constitution. Border officers can continue to perform advanced searches without a warrant or probable cause and can perform basic searches without reasonable suspicion that there may be a violation of law or a national security concern."

by vageli 4y ago

jaarse 4y ago

From reading the directive it appears as though they don’t have an exemption for Americans: https://www.dhs.gov/sites/default/files/publications/PIA-CBP%20-%20Border-Searches-of-Electronic-Devices%20-January-2018%20-%20Compliant.pdf https://www.dhs.gov/sites/default/files/publications/PIA-CBP... Of course the official response is what you would expect: “CBP officials declined, however, to answer questions about how many Americans’ phone records are in the database, how many searches have been run or how long the practice has gone on, saying it has made no additional statistics available “due to law enforcement sensitivities and national security implications.””

KMnO4 4y ago
> national security implications There’s nothing more American than spying on your own people and blaming it on terrorists.
- londons_explore 4y ago
  A government that doesn't keep good enough control if it's people will soon be overthrown. When you give the people more freedom to protest, organise, mass communicate easily etc, you also have to add equal amounts of monitoring and restrictions to make sure that next movement to overthrow the government can't pick up speed without you catching it.
  - thesuitonym 4y ago
    A government controlled by its people, instead of controlling its people, doesn't need to worry about being overthrown.
    - lazyier 4y ago
      Yeah, but that defeats the purpose of creating the state in the first place. The entire point is being able to tell people what to do for your own profit. It's a lot easier if you pretend you are doing it for the subject's benefit as it reduces the resistance to rule immensely. But you don't want to let that go too far or they start getting a big head and start thinking that paying you billions of dollars is optional.
      - unethical_ban 4y ago
        There are legitimate reasons for a State to exist.
  - throwawayacc2 4y ago
    We wouldn’t want those pesky commies, ahh sorry, that was the 50s and 60s, those darn uppity negroes, ahh sorry again, my bad, that was civil rights era, those blasted … err, commies again? They made a comeback in the 80s it seems. Ahh there it is. We don’t want those crazy islamist terrorists harming our people. We need to protect your freedom … by curtailing it, of course. Sorry, sorry, I’ve just been informed, the boogieman is no longer islamic terrorists. Now, it’s called radical white supremacist qanon Jan 6 anti vax conspiracy incel nationalist. My bad. I apologise. But the curtailing of freedom will continue and the surveillance will increase. In order to safeguard our freedom and privacy, of course.
    - toss1 4y ago
      If you cannot see the difference between civil rights movements attempting to change governing to be more even-handed vs expansionist authoritarian governments or movements attempting to destroy democratic governments altogether, you need serious help (and should at least stop broadcasting your ignorance).
- freeflight 4y ago
  Or make them spy on each other to find even more "terrorists" [0] [0] https://www.dhs.gov/see-something-say-something https://www.dhs.gov/see-something-say-something
engineer_22 4y ago
It's tiring that "national security" is thrown around to justify stonewalling. Does anyone audit the "national security" excuse? An Ombudsman? Where does policing end and national security begin? Oh well, I'll buy a thin-blue-line flag for my lawn and sleep easy, trust the good-guys.
- pydry 4y ago
  Did this ever not happen? To fight these people you have to be some combination of powerful, morally spotless and willing to make great personal sacrifices - like Chelsea Manning.
  - engineer_22 4y ago
    The last 3 words were so unexpected...
xoa 4y ago
There is a split here between law and practicality for many people I guess. As a matter of law for US Citizens it doesn't matter whether there is an "exemption" or not: a US Citizen may not be denied entry at a land port of entry, period. Their property can potentially be taken but only with legal process and it can't be kept indefinitely without violation of law. If they're wanted for a crime they can of course be arrested from which the normal legal process within the US plays out, but all the normal requirements are there too. They can be asked additional questions and put through more inspection, but with citizenship established that's it. So if someone simply refuses to answer any questions or unlock their phone and there is no further reasonable cause there is nothing the CBP can legally do to keep them out. But as a practical matter most people don't want to spend an extra hour or hours or even extra minutes going through a more detailed search for contraband or whatever else. Most don't want to, aren't ready for and/or can't afford having electronic devices held for days/weeks before getting them back. A lot of people simply don't know their rights. So without an explicit exemption a lot of Americans undoubtedly would submit "voluntarily". So the ACLU isn't wrong (and their actual page is appropriately more nuanced [0]): Americans aren't "subject" in the legal sense to this, or to any other questions beyond what's needed to establish citizenship. Having done so they may politely insist on entry and refuse anything else, demand to see a supervisor if an agent persists in unconstitutional questioning, submit any property required while in response demanding receipts and pursuing complaints or legal action afterwards (or both), and at the end of the day the CBP must put up or shut up: let them through or arrest them, and for the latter will have to meet the legal standard and it'll all play out domestically. But at the same time the financial and other burdens this imposes are very real and serious. Best practice would be to go as "clean" through the border as possible, preferably with a dedicated phone that only has minimum necessary travel and navigation data on it and nothing else, no logging into any personal accounts of any kind, no bookmarks or the like, and cheap enough to not care about losing it. Then one can just let border agents look through whatever as much as they'd like, or let them take it and just write it off. Not everyone can or knows to even consider that possibility though. And of course the vast majority never have a problem, so it's insurance against a "black swan event" for the average person (those who suspect they'll be subject to heightened scrutiny legally or not may already do this). It's valuable to note both the exact state of the law and when the practical effect is different. ---- 0: ACLU: "If you are a U.S. citizen, you need only answer questions establishing your identity and citizenship, although refusing to answer routine questions about the nature and purpose of your travel could result in delay and/or further inspection." Or later "U.S. citizens have the right to enter the United States, so if you are a U.S. citizen and the officers’ questions become intrusive, you can decline to answer those questions, but you should be aware that doing so may result in delay and/or further inspection". So the ACLU does acknowledge a practical cost to insisting on your rights, they aren't merely blindly saying "not subject".

ep103 4y ago

I mean, that's great and all, but IIRC this Supreme Court has been instituting a policy of Absolute Immunity related to immigration issues via Egbert v. Boule. If one has absolute immunity, the law simply isn't a concern for federal border security.

giantg2 4y ago
If I remember correctly, it's not complete immunity, but they require a compensation mechanism approved by congress for any issue that doesn't have prior history of being compensated explicitly similar to the situation at hand. It's like 99% immunity.
- ep103 4y ago
  Right, so federal agents receive absolute immunity by default, and this is guaranteed to continue for every new issue, unless Congress magically becomes un-gridlocked in the meanwhile AND chooses to solve this issue AND chooses to do so every time a new unprecedent issue occurs involving a federal agent.
  - giantg2 4y ago
    It's not absolute. It's just the default. There are specific scenarios where it doesn't apply.

mercy_dude 4y ago

throwoutway 4y ago

The ACLU is wrong. The border does it all the time. Here is the one that sticks out in my mind as the most popular case: https://gizmodo.com/border-agent-demands-nasa-scientist-unlock-phone-before-1792275942 https://gizmodo.com/border-agent-demands-nasa-scientist-unlo...

xoa 4y ago
>The ACLU is wrong. The border does it all the time. Here is the one that sticks out in my mind as the most popular case: The ACLU is not wrong, if you actually read their actual words. Your case doesn't say what you think it does. From your own article: >Bikkannavar insisted that he wasn’t allowed to do that because the phone belonged to NASA’s JPL and he’s required to protect access. Agents insisted and he finally relented. As far as the law is concerned, he voluntarily let them look at it. It doesn't matter if they "insisted", he could have told them to pound sand. They could have kept the phone, but in its locked state it presumably wouldn't be that useful, and particularly since it wasn't merely a personal device JPL's legal department then could have easily gone right after them for it and won. Just because we have the legal right to something doesn't mean there is some magic barrier preventing LEOs from attempting to violating them, or implying the right doesn't exist. They have to be defended by people exercising them and potentially going to court. The very next paragraph states: >Hassan Shibly, chief executive director of CAIR Florida, tells The Verge that most people who are shown the form giving CBP authority to search their device believe that they have an obligation to help the agents. “They’re not obligated to unlock the phone,” she says. Right, same as a police officer who asks if they can "look around" or "ask a few questions". They may certainly ask that. You may choose to cooperate. But in general you'd be a fool to do so, and you also may say "no". If they arrest you they were almost certainly going to do so anyway but now they have less to go on and with more avenues to challenge it, and if they arrest you over exercising your rights you have a strong cause of action right there. CBP agents may well ask people this sort of thing all the time, but that doesn't mean citizens must comply.
- oneplane 4y ago
  That sounds great when typing it up on the internet in a comfortable chair, but when a few power hungry workers with guns are breathing down your neck in a small room you can't get out of, the rules aren't going to make you feel 'safe'.

laweijfmvo 4y ago

Also relevant/interesting is this "exception" the US government claims to the Constitution: https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone I've heard of "border" being applied to anywhere 100 miles from an _airport_, but can't find the reference, which would cover like 99% of the country.

JohnFen 4y ago
From international airports. International airports themselves count as "the border", for obvious reasons.

Spooky23 4y ago

They cannot deny a US citizen entry, but they can still mess with you.

nomdep 4y ago

They are searching anybody who they please, even Americans

pigtailgirl 4y ago

https://legalservicesincorporated.com/immigration/border-phone-search/ https://legalservicesincorporated.com/immigration/border-pho... https://www.theverge.com/2021/2/10/22276183/us-appeals-court-first-circuit-border-phone-search-decision-fourth-amendment https://www.theverge.com/2021/2/10/22276183/us-appeals-court... "The court held that the government’s policy, described above, does not violate the Constitution. Border officers can continue to perform advanced searches without a warrant or probable cause and can perform basic searches without reasonable suspicion that there may be a violation of law or a national security concern."