17 ms·
Federal judge: Border searches of cell phones require a warrant
- lannisterstark 3y agoAs someone who lives in a border cities and crosses often, thank fuck. Now do "They can't make you sit in secondary area/room for two hours without looking at you."
- EA-3167 3y agoAs someone far from any border, let me join in you a hearty "thank fuck" as well. This always seemed like a terrible and deeply unAmerican thing for the government to engage in. I'm all for oversight, including some that many find overbearing, but warrantless searches of your devices just for crossing a border is some post-9/11 hysterical nonsense.
- lannisterstark 3y ago>some post-9/11 hysterical nonsense. That's because it is lol. Remember this incident? Fun stuff. https://web.archive.org/web/20230421210739/https://www.theatlantic.com/technology/archive/2017/02/a-nasa-engineer-is-required-to-unlock-his-phone-at-the-border/516489/ https://web.archive.org/web/20230421210739/https://www.theat... "A NASA Engineer Was Required to Unlock His Phone at the Border A U.S.-born scientist was detained at the Houston airport until he gave customs agents the passcode to his work-issued device."
- sidewndr46 3y agoWouldn't that be a violation of NASA policy and possibly some other Federal agency policies?
- reaperman 3y agoYeah but kind of force majeure at that point.
- ajsnigrutin 3y agoHow long can they detain you for? Foreigners i understand... either give the passcode or go back home... but local citizens? (i've argued more than once at my countries border, and there's not much that they can do)
- bumby 3y agoConstitutional due process in the United States applies to both citizens and non citizens alike.
- wrycoder 3y agoRecent events cause me to sincerely doubt that.
- bumby 3y agoI think your referring to de facto, my statement was about de jure.
- kelnos 3y agoIn theory, yes. But in reality, a non-citizen has much more to lose (being denied entry, which is a stain that remains on your record for quite some time) from arguing with a CBP officer about their rights than a citizen does. The law is irrelevant when LEOs can side-step it whenever they want.
- deleted 3y ago[deleted]
- bumby 3y agoThis goes for any law, citizen or not. Equal protection does not mean equality of costs. Some people will have more to lose by fighting a traffic ticket in court. It doesn’t mean they have less rights to do so. Saying the system is structured to be unfair is a different argument than saying the system doesn’t afford the same rights.
- dylan604 3y agoYou don't even have to be crossing a border. There's an area some 100 mile distance from the border that the CBP operates. It just so happens that a large percentage of the population resides in that area, so it can affect more people than immediately realized. https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone
- Zak 3y agoThe page you linked says that they need probable cause to search any property within the zone. That's different from when actually crossing a border, in which case property is generally subject to search without suspicion.
- dylan604 3y agoprobable cause is whatever they say it is, so that's really not much of a show stopper. the only way you can prove it is not proper probable cause is through a lengthy (aka expensive) court battle after the fact.
- kube-system 3y agoGoing to court is the only way you can prove any legal wrongdoing made by anyone about anything.
- dylan604 3y agosure, but leaning on probable cause to prevent the LEOs from doing something to you in the moment is not a sound practice. it will always be retrospective, and not everyone can afford to avail themselves of the legal remedy. the LEOs know this and behave accordingly
- Matl 3y agoExcept 'probable cause' means that the search was in 'good faith' which is my understanding basically makes the officers involved practically immune, (even if you're awarded damages say), and at the very least makes it more likely to happen by them knowing they're off the hook either way.
- WillPostForFood 3y agoIt far predates 2001, key case law is from the 70's: https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-ramsey https://www.lexisnexis.com/community/casebrief/p/casebrief-u...
- RajT88 3y agoSame. 100 miles from the shores of Lake Michigan puts you upwards of 7 hours drive from the Canadian border. That's just bonkers.
- askin4it 3y agounAmerican... I'm American. I've always liked this way of describing things that we don't like. It somehow (to me) implies something. Maybe I don't know what that is, but it seems mostly anti-bad. If anyone wants to hate on me, I think that HuAC was tragically misrepresented to the public, and the Hollywood blacklists should have been longer and wider. Sorry, but that's how I feel about it. Many of the jokers that ended up there were acting very irresponsibly and as if there were no consequences for their actions. The actions being a hidden alignment with an internationalist organization actively seeking to undermine the USA from within. (Something we can accomplish without any outside help.)
- fishywang 3y agoBecause all international airports are "borders", and previously the warranty-less searches were permitted with something like "within 50 miles of a border", the majority people living in the US should say thank fuck.
- dylan604 3y agoI just replied to a sibling about the CBP's 100 mile zone (i'll post here again). For some reason, the airports do not seem to be mapped as part of this 100 "inclusion" zone. Otherwise, the included population would approach 100%. That's a bit of trivia I've never seen addressed before, so adding that to the list of things that make you go hmmm https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone
- johncessna 3y agoI'm not saying it's wrong or right, but this isn't not too surprising is it? Access out of an airport is tightly controlled whereas the border isn't.
- tptacek 3y agoIt has never been the case that 100 (or 50) mile ranges from the border are open to warrantless searches; it's a myth spread by a misleading bit of ACLU promo material.
- bumby 3y agoFrom u/WillPostForFood's link: "This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself."
- darth_avocado 3y agoThat’s not true. CBP has plenty of permanent and many more tactical search checkpoints throughout the country where you are subject to search. Many of these are 70+ miles from the border. https://en.m.wikipedia.org/wiki/United_States_Border_Patrol_interior_checkpoints https://en.m.wikipedia.org/wiki/United_States_Border_Patrol_...
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- dang 3y agoWe've banned this account for repeatedly breaking the site guidelines. Please don't create accounts to break HN's rules with. If you don't want to be banned, you're welcome to email hn@ycombinator.com and give us reason to believe that you'll follow the rules in the future. They're here: https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html.
- usernew 3y ago[dead]
- rationalist 3y agoIf you could do that without insulting the people, even if you don't mean it, then that would be hilarious. I have no problem with you playing that game with the system, but they are still real people that you're interacting with.
- purpleblue 3y agoOne of my friends had her phone searched while crossing the border, and they used jokes she sent as text messages to give her a 10 year ban. So I know very well the dangers of crossing the border with data on your phone.
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- anankaie 3y agoFinally. It was disgusting that we ever had a "Bill of Rights"-free zone at the border.
- slim 3y agoThis does not apply to non americans crossing the border. So leave your phone at home when traveling to USA (if you can)
- deleted 3y ago[deleted]
- rootusrootus 3y agoThis is good, and I hope it stands. Once you demonstrate that you are in fact a citizen of the US, you cannot be denied entry, and IMO all the regular Constitutional protections should immediately apply.
- jamesdwilson 3y agoserious q, i legit don't know about these things, what about that ambiguous gray area i see so-called freedom auditors use where they argue that the Agent has no reason to suspect they are not american, (and they repeat am i free to go/ am i being detained)
- Arrath 3y agoI can't honestly see how there is grey area, you're at a border checkpoint: show some form of identification either way? There is no requirement for an agent to assume your nationality and let you through, no? You still need to show your passport even when returning home. Of course, all this sovereign citizen nonsense ignores reality and tries to pursue (nonexistent) legal 'gotchas' like you're rules-lawyering your way into a 'rules as written' game breaking combo in Magic: The Gathering.
- jamesdwilson 3y agoWell the evidence is there on youtube if you'd like, lots and lots of videos of border patrol letting people go who show no ID at all. Seems to support the auditor's POV. I have no dog in this fight, just an intellectual curiosity.
- rootusrootus 3y agoI don't really trust YT as a source for any kind of facts. CBP is pretty specific about documentation required to enter the country. If you're a citizen and you lack any documentation, you're going to be sitting around for hours while they determine (to their satisfaction) that you're who you claim to be. It would also only really apply at a land crossing, I imagine. You can't even get on a plane that's entering the US without showing your passport at the departure gate. At that point your only option if you really are without documentation is to find the nearest US consulate and get some travel papers.
- omginternets 3y agoI would urge anyone who is able to donate to the EFF. They do excellent work. https://www.eff.org/pages/donate-eff https://www.eff.org/pages/donate-eff Rattles tin can...
- tracker1 3y agoThey're the target for my smile.amazon.com buying.
- omginternets 3y agoI didn't realize you could do that! Thanks for the heads-up!
- tracker1 3y agoApparently, it's gone now.. :-( Maybe I should just start using Walmart and other options instead... I'm seeing way too many "sponsored" results from Amazon lately (6 or the first 8 the other day).
- mdavidn 3y agoThe AmazonSmile program ended a couple months ago. https://www.aboutamazon.com/news/company-news/amazon-closing-amazonsmile-to-focus-its-philanthropic-giving-to-programs-with-greater-impact https://www.aboutamazon.com/news/company-news/amazon-closing...
- boredumb 3y agoSo if non-citizens are entitled to warrants after entering a country illegally, how does this fare to the warrant-less five-eyes surveillance against non-citizens that have not committed any crimes?
- reaperman 3y agoI think it should be that rights from the US Constitution should apply to: - anyone inside the USA borders/waters - and any citizens of the USA no matter where they currently are (obviously only affecting the actions of US Government, government of Thailand of course wouldn't be bound by US Constitution). But the Supreme Court disagrees with me on parts of that. So I think the answer to your question is "whatever the Supreme Court says."
- ComputerGuru 3y ago> But the Supreme Court disagrees with me on parts of that. To be fair, I think SCOTUS disagrees with itself on some parts of that.
- lannisterstark 3y ago>I think it should be that rights from the US Constitution should apply to >- anyone inside the USA borders/waters They do. At least all bill of rights except the 2A do. "In theory" anyway.
- sidewndr46 3y agoas far as I'm concerned the entire EEZ would be covered. If the government assert it's their territory to profit from, the same rights go along with it
- halJordan 3y agoThey're actually completely separate topics handled by different areas of the law. It's like seeing a case about whether an officer can pull over a speeder and the questioning the legality of titling fees.
- lesuorac 3y ago
- ok_dad 3y agoPlease note that this specific ruling was still that the motion to supress be denined, because the agents thought they had a legal right to search the phone and because they later got a warrant for the contents of the copy they made, so the defendant still got fucked even though his rights were trampled, simply because the agents were too fucking ignorant to know that what they were doing was illegal per the SCOTUS 2014 decision. td;dr: government agents can use ignorance of the law to get away with breaking it -- a quote from the decision: > Nonetheless, that still leaves the question whether to suppress the evidence from such an unlawful search. Here, the Court determines that the “good faith” exception precludes suppression, both because at the time of the search, the agents conducting the search had an objectively reasonable basis for believing that there was legal authority binding on them that authorized such a search and also because the Government ultimately obtained a search warrant to search the phone copy, disclosing all relevant details of the search to a neutral magistrate. For these reasons, further elaborated below, the Court reaffirms its prior denial of Smith’s motion to suppress.
- CatWChainsaw 3y agoGovernment agencies can use ignorance to get away with breaking the law, but for everyday civilians, ignorance is no excuse and you might in fact be judged more harshly for not knowing. Funny how that works!
- lesuorac 3y agoI mean that ChatGPT Lawyer had good faith in that ChatGPT gave him valid case citations ...
- jacquesm 3y agoIt is quite astounding that this was allowed to stand in spite of it being against the law.
- tiahura 3y agoShouldn't the consequence of the agent not doing their job be that the agent gets fired? Why should a criminal benefit? If his rights were violated, he can sue.
- wordyskeleton 3y agoI assume this only applies to citizens?
- sjtgraham 3y agoIANAL but IIRC the definition of the constitutional "people" is broader than US citizens. SCOTUS has answered this question in connection with the 2nd amendment. I wasn't able to find the case but the meaning of "the people" is taken to mean members of the broader national community. People who have developed sufficient connection to the United States, e.g. Lawful Permanent Residents.
- awesome_dude 3y agoOne thing that has always confused me on this is - how can an agent enforce a law on a person if that person isn't within jurisdiction of that law, whilst at the same time that person isn't entitled to the rights that they would have within that jurisdiction. Basically, how can you enforce a law on someone and at the same time ignore the rights that apply to someone where that law can be enforced. If the person hasn't entered the country, then the law of that country doesn't apply. If the person has entered the country, then the rights and protections of that country also apply..
- NegativeK 3y agoThat sounds a bit like an overreading into technicalities. It makes sense for border control to exist to _some_ degree. That means that property and potentially people will need to be searched. It also makes sense for border entry points to not exist at the moving shore of a nation or in the actual air. That means that an administrative concept should exist where people on one side of a line are considered to be have been granted entry and people on the other side aren't -- even if both sides of the line are within a nation's territory. That administrative concept can be (but can also not be) compatible with both the goals of human rights and with the goals of nation states. And at the end of the day, laws should be more focused on achieving goals than fiddling with nitpicking.
- awesome_dude 3y agoI don't think you've understood the post at all. There's nothing in my post about stopping them from exercising border control. There's nothing about where that might take place. The point is, if you have enforceable laws then those that the laws are being enforced on also enjoy the rights available to them under the same laws. A search (of electronic equipment) requires cause (this is why the warrent is needed), and detainment also requires some degree of cause. Arbitrary search and detainment is what we ascribe to totalitarian nations.
- AHOHA 3y agoYou got a strong argument here, I like your logic, will definitely try it if needed!
- egberts1 3y agowould the 100-mile from the border be next or did that quickly became 2,000 miles (entire USA) from the border before this OP?
- tracker1 3y agoIt should apply to interstate domestic travel in the US, of course once identified as a citizen. That said, iirc, something like 90% of the US populace is within 100mi of the border (including ocean).
- jmclnx 3y agoCurious if this also applies to Laptops ? This quote does not mention the scope of the ruling, but to me, the article leaves come confusion to my question: >The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices
- duskwuff 3y ago"The Supreme Court has not yet considered" simply means that the court hasn't said anything either way. It isn't meant to imply anything about what position they might take if they considered it.
- dylan604 3y agoi act as a bit of a paranoid nutter and actually shut off my laptop when flying international. it's pretty much the only time i do that. the question is not answered to my satisfaction, so that's the choice i make in response.
- bonestamp2 3y agoWhat does shutting it off do? As far as I understand, they can still require a search. I had it happen once when entering Canada, they said if I didn't consent to the search they would confiscate my laptop. I let them search it, and obviously they didn't find anything incriminating, but it felt so violating watching them go through all my personal photos.
- dylan604 3y agofull disk encryption keys are not in memory yet
- notfed 3y agoDoes this mean they asked you to unlock it / decrypt it?
- bonestamp2 3y ago
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- calibas 3y agoFourth Amendment 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.
- tptacek 3y agoA reminder here that our common understanding of the term "warrant" is not that of the 4th Amendment, and the Constitution has never forbade warrantless searches --- only "unreasonable" searches, where "unreasonable" is almost a term of art meaning "whatever judges agree to", and which currently capture a whole bunch of specific kinds of warrantless searches, like searches incident to arrest and searches at border crossings, many of which were also employed at the time of the founders. The warrant clause of the Fourth Amendment was a response to the "General Warrant", an instrument issued by the British government to local officials that was essentially a license to harass at will; that's why Constitutional warrants have to describe particular places, persons, and things (because that's what General Warrants didn't do).
- steve76 3y ago[dead]
- BenFranklin100 3y agoGreat news. How does this affect the 100 mile border zone? Technically, if one is within 100 miles of the border, the federal government asserts certain rights to conduct warrantless stops and searches. See: https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone I find this sort of federal government overreach absurd. I hope this ruling affects this as well.
- tptacek 3y agoThere is no such zone. That page is misleading. There is SCOTUS case law back to the 1970s establishing that a border search must have a nexus to an actual border crossing; you can't simply search anybody within some distance of a border.
- tehwebguy 3y agoSort of? A lot was said about EGBERT v. BOULE, initially that it allowed CBP to simply search any home within 100 miles of the border. There was then a big pushback, that it didn't actually allow this but simply limited folks options to sue in these scenarios which is different from allowing it. This was not a simple case of trying to sue for some damages, like breaking a door down or technically violating rights by entering without permission: > When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave. > Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egbert’s supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule. In a sane world CBP agent Erik Egbert would be in prison but he wasn't even fired. The supreme court saying they're not technically condoning the behavior but denying the plaintiff any ability to sue seems like a distinction without a difference to me!
- anigbrowl 3y agoPlease advise CBP of this, because that particular part of the executive branch (and the DoJ) have a more maximalist take on the issue, notwithstanding the tenuous legal foundations on which which their claims rest. https://elibrary.law.psu.edu/pslr/vol124/iss2/3/ https://elibrary.law.psu.edu/pslr/vol124/iss2/3/
- yieldcrv 3y ago> The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices We need additional ways to create standing in courts It is ridiculous that a constitutionally contradictory law or policy can remain in the books for decades, just because the right rich person hasn’t been inconvenienced enough by the law to challenge it In some countries, the President can get a law evaluated for its constitutionality as an additional choice than just vetoing or signing. We could start there.
- singleshot_ 3y agoYour last sentence is an interesting idea. But the "case or controversy" requirement for justiciability in federal court, which represents a limit on the power of the federal judiciary, comes from Article 3 Section 2 of the Constitution. It is a hard limit beyond which even Congress cannot grant additional power. Congress can limit the power of the judiciary to hear cases more narrowly than the Constitution does, e.g. the diversity / federal question requirements for federal jurisdiction, which are Congressional limits on the power of the federal courts. Your plan could potentially be accomplished by amending the Constitution but I do not think Congress could pass such a law.
- ilrwbwrkhv 3y agoFantastic fantastic news. As an American, private rights are paramount and any government interference should come with strict roadblocks and reasons.
- johnklos 3y agoYou mean authorities can't just invalidate our Fourth Amendment rights because they feel like it? Who'd have imagined?
- Johnny555 3y agoThey still can, it just takes a little more work to justify the warrant.
- hayst4ck 3y agoIt's a literal national security issue. I know people who have two factor codes and password vaults on their phone's that if compromised by a competent attacker could compromise nearly every major corporation in America. Imagine if a foreign intelligence agency managed to get a border guard asset. Even from a reciprocity point of view, if we search other people's phones, that sets expectations that ours can get searched too. It's dangerous precedent all around.
- aio2 3y agoWhat are you talking about? They can already search our phones. Just have them call Google or Apple and all's said and done.
- CobrastanJorji 3y agoYou should probably tell the person who keeps information on their phone that could compromise most US major corporations to stop having that on their phone, or at least to stop traveling internationally with that phone.
- toomuchtodo 3y agoI have seen in more than one remote first org handbook instructions to wipe your corp devices prior to border transit, and restore upon arriving at your destination.
- ArchOversight 3y agoExcept that CBP claims that within 100 miles of the US border they have jurisdiction.
- tdhz77 3y agoIn Cano that is largely what the 9th decided. Idaho Jusge goes a little farther with slightly different facts. This isn’t the first by any means.
- tdhz77 3y agohttps://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/17-50151.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/1...
- AHOHA 3y agoFor anyone wondering, this is what I do personally: for the iPhone, you can have it pair locked (1) with a MacOS (obviously one isn’t accompanied with you during the travel) that way they can’t -even if you were foced to unlock it- they can’t image the OS for further forensics, as that’s usually the case at borders, you wait an hour or two until they copy the image, or worse, planting some malware. This doesn’t work for Android btw. For laptops, as I mentioned in another comment, using plausible deniability (veracrypt provide such functionality (2)), where you can login to a decoy OS if you were to be forced, keep in mind some deep forensics might give an indication that there’s another OS hidden and encrypted but very hard to do so. Also, EFF guide from the article below on about the borders (3) (1) https://arkadiyt.com/2019/10/07/pair-locking-your-iphone-with-configurator-2/ https://arkadiyt.com/2019/10/07/pair-locking-your-iphone-wit... (2) https://veracrypt.eu/en/Plausible%20Deniability.html https://veracrypt.eu/en/Plausible%20Deniability.html (3) https://www.eff.org/files/2018/01/11/digital-privacy-border-12-2017.pdf https://www.eff.org/files/2018/01/11/digital-privacy-border-...
- furyg3 3y agoFor those wishing to do this, keep in mind you should not then travel with your iPhone AND the device you pair-locked your phone to (your laptop, for example). This may be obvious but is important.
- ck2 3y agoEnough of the "constitutional-free zone" in the USA If law enforcement wants to be taken seriously it needs to behave like this isn't actually a dictatorship. They have massive powers already without this nonsense. https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone https://www.google.com/search?q=constitution-free+zone https://www.google.com/search?q=constitution-free+zone
- barbariangrunge 3y agoTo clarify: does this mean Canadians visiting the USA don’t have to worry about their devices getting invasively searched/cloned at the border any more?
- croes 3y agoINAL but I would say, if you are not a US citizen, you still should be worried. Sounds more like the only thing that has changed is which agency is doing it now.
- dcanelhas 3y agoMaybe this will be good for tourism. The TSA digging into your laptop or phone on a whim (or racial profiling) might not be a welcoming experience for a lot of people. Brazil had a special queue for US visitors in early 2000s, forcing them to get fingerprinted, as a reciprocating policy. I doubt the fingerprints were actually digitized or stored - it was likely more to annoy people into pressuring their own government to stop treating Brazilian nationals in that way when visiting the US.
- carabiner 3y agoGood. A Canadian border officer searched my friend's phone a few years ago and interrogated her based on the contents. She ended up getting denied entry. Totally invasive and her intended trip was innocuous.
- ACV001 3y agoThis type of search has always been an abuse of basic human rights. Why aren't more people suing for this?
- qwerty456127 3y agoA good step at least. In my oppinion searching of smartphones means almost the same like searching one's actual brain or even more. This should never be allowed under any circumstances, not even for a very legitimate suspect or convict.
- Vinnl 3y agoHmm, I can't find it in the post, but does anyone know if this only applies to US citizens, or foreign nationals as well? (I assume warrantless searches of cell phones of foreign nationals not at border control are illegal as well?)
- rurban 3y agoWill still not help anything with the unlawful US ~45.000 searches a year by the Customs & Border Protection (CBP). They believe they are above the law, as most politicians and security agencies.