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Courts Close the Loophole Letting the Feds Search Your Phone at the Border
- fbdab103 2y agoIs this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?
- ceejayoz 2y agoSCOTUS can absolutely decide differently when one of these gets there.
- gumby 2y agoSince smart phones are explicitly mentioned in Article 4 along with bump stocks, it’s pretty clear how this SCOTUS would rule.
- dredmorbius 2y agoEither missing a negation or </s>, but yes.
- eurleif 2y agoThis is a ruling by a District Court. It could be appealed to the Circuit Court, and then to the Supreme Court. In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts. This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano. In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits. (Credit for case law information to: https://www.wilmerhale.com/insights/client-alerts/20231115-outlier-or-trend-a-possible-narrowing-of-the-border-search-exception-for-electronic-devices https://www.wilmerhale.com/insights/client-alerts/20231115-o...)
- qingcharles 2y agoExactly this. (and for those unfamiliar with the terms, in federal courts "Circuit Courts" are the first level of appeals courts, which both sides have a right to be heard in, followed by the Supreme Court which is discretionary and only takes on big cases) When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it. I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly. If I had to wager, SCOTUS will uphold warrantless border searches.
- dmurray 2y ago> the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly. I would say the court is generally less defendant-friendly and less government-friendly. Maybe in the narrow case where government = armed law enforcement, more government- friendly.
- qingcharles 2y agoMaybe I should have said more prosecution/law-enforcement friendly, you're right.
- tracker1 2y agoWith this SCOTUS it's really hard to tell... while they've mostly aligned to state actors, there are a few instances, in particular 2A cases where they've leaned into favoring civil liberties over state actors, so it could really go either way IMO. That said, my own take has been for a while, that if I travel across borders that I'd specifically buy a burner phone and something cheap like a chromebook, possibly in the country being travelled to and expressly wiped clean before travel if taking said device across the border. Keeping some printed/written notes with contacts that I can establish on the other side. It's kind of weird in that I don't think the above is excessively paranoid given how intrusive state actors can be, not just the US.
- yieldcrv 2y agoAlternatively, when the Supreme court composition has changed and shown a willingness to view old decisions as bad law, its a great time for a district court to break rank with precedent. We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
- BenFranklin100 2y agoA textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment. I don’t think we have much to worry about on this topic from the current court.
- BenFranklin100 2y agoFor the Hacker News members who are reflexively downvoting my comment, presumably for political reasons, I refer you to Riley vs. California, the 2014 SCOTUS decision that ruled warrantless searches of cell phones were unconstitutional: https://supreme.justia.com/cases/federal/us/573/373/ https://supreme.justia.com/cases/federal/us/573/373/ The opinion was written by Roberts with a concurrence by Alito. Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
- DonHopkins 2y agoNot for political reasons. It's because you're such a debaucherous womanizer! ;) https://www.historyoasis.com/post/benjamin-franklin-the-womanizer https://www.historyoasis.com/post/benjamin-franklin-the-woma...
- BenFranklin100 2y agoHahaha, Franklin was the Original Horndog. His advice on choosing a mistress is a classic: https://web.viu.ca/davies/H320/Franklin.advice.mistress.htm https://web.viu.ca/davies/H320/Franklin.advice.mistress.htm
- JumpCrisscross 2y ago> textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.) Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley. [1] https://en.wikipedia.org/wiki/Originalism https://en.wikipedia.org/wiki/Originalism
- qingcharles 2y agoSCOTUS doesn't always make shitty decisions. Sometimes dozens of lower courts will all make a shitty decision and then it gets to SCOTUS and they somehow use their greater resources to produce a better decision contrary to everyone's expectations. IIRC pretty much 99% of state and fed courts had ruled against the warrant requirement for GPS tracking until it hit SCOTUS and they went the opposite direction (just): https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)
- Retric 2y ago2012 was a very different court. Gorsuch, Neil M. April 10, 2017 Kavanaugh, Brett M. October 6, 2018 Barrett, Amy Coney October 27, 2020 Jackson, Ketanji Brown June 30, 2022
- qingcharles 2y agoAmen to that, I mentioned that above too :) https://news.ycombinator.com/item?id=41084212 https://news.ycombinator.com/item?id=41084212
- skissane 2y agoThat 2012 decision was unanimous, including all the conservatives. Roberts, Thomas and Alito all held GPS tracking without a warrant to be unconstitutional, along with Scalia (now deceased). If the exact same case came before the Court today, would it rule differently? I doubt. One must assume Roberts, Thomas and Alito would rule the same way. Ideologically, Gorsuch, Kavanaugh and Barrett are all less conservative than Thomas and Alito, more conservative than Roberts – which suggests if Roberts, Thomas and Alito are all ruling the same way, probably Gorsuch, Kavanaugh and Barrett would too. And Jackson is both a liberal, and has been seen to be defendant-friendly even when the other liberals wouldn't be (see when she joined all but of the conservatives in the recent J6 case, while Barrett joined the remaining liberals). So probably, that case would go the same way today as it did in 2012. Now, this is a separate issue, so the outcome of that 2012 case isn't decisive in how this case would be decided (if it ever reaches SCOTUS). But it would be wrong to assume that SCOTUS becoming significantly more conservative is necessarily going to change the outcome.
- gamblor956 2y agoThis isn't a landmark case...Courts have been ruling against warrantless border searches for years, see US v Cano (2019), US v Aigbekaen (2019). Indeed, this same federal court has already ruled against warrantless phone searches in US v Smith (SDNY 2023).
- TheCleric 2y agoYeah. This wasn’t even an appeals court, so all this means is this judge thinks that. As it is I wouldn’t be surprised if the government doesn’t appeal to avoid setting a wider precedent.
- eurleif 2y agoUS v. Cano: "we hold that manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion". Neither "without individualized suspicion" nor "a showing of reasonable suspicion" are a warrant requirement. This is not a court "ruling against warantless border searches". US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
- ranger_danger 2y agoI think another problem is that such suspicion/probable cause is often "made up", or in other words, people often disagree on someone's quick judgement call where it wasn't obvious to everyone.
- ranger_danger 2y ago> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector. Does a strip search also require a warrant though?
- beaglesss 2y agoIt doesn't. I was strip searched and imprisoned without a warrant, or even an arrest. And it gets worse from there.
- ranger_danger 2y agoRight, so it's not even like a strip search, it's still much worse.
- schoen 2y agoIn the border search context, an intermediate standard of some kind related to actual suspicion. https://en.wikipedia.org/wiki/Border_search_exception#Searches_of_travelers'_bodies https://en.wikipedia.org/wiki/Border_search_exception#Search...
- beaglesss 2y agoSure but I learned that hard way when I got the sealed probable cause statement of my warrant, the detective claimed an unnamed officer claimed an unnamed dog alerted and that set off that intermediate standard. So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.
- deleted 2y ago[deleted]
- codr7 2y agoDogs fill several functions in that context, not that different from how lie detectors are used to put on a good show actually.
- RcouF1uZ4gsC 2y ago> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector. Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
- beaglesss 2y agoYou think that. I was strip searched When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me. It sounds so insane, and gross, people usually don't believe it. I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
- RIMR 2y agoYeah, that sounds like the cops. This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media. Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
- beaglesss 2y agoI talked to several including the lawyer of Ashley Cervantes v US , a woman warrantlessly digitally raped (fingered) by doctors at the same hospital in search of drugs. Her case was publicized and far more egregious. They essentially told me they'd given up. I also reported a nurse who acted without consent to the nursing board. The board covered for her. And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented. The ACLU occasionally picks up cases but rarely and even rarer for an unsympathetic white guy. It feels pretty hopeless honestly. They have QI,the courts, and every institution covers for them. At the border, CBP is god, even immune from 1A right to record them.
- mindslight 2y agoSo these criminals that have been performing the illegal searches. The next step is they'll be charged with false imprisonment, extortion, and conspiracy, right? Oh, okay then, how about at least for deprivation of civil rights under the color of law? Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc? Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!? Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy. And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
- RIMR 2y agoYou can't apply the law retroactively. The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time. What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way. I'm more interested in damage control than revenge on this one.
- qingcharles 2y agoThe states might apply this differently, I'm out of touch, but under fed law, I think you can only apply new SCOTUS rulings to criminal cases that are still not "final." (e.g. haven't gone to trial, or haven't completed their course through all 11 or 13 stages of appellate review.. however many there are these days inc state + fed + habeas)
- arnonejoe 2y agoI’m curious, if your phone is locked, were they ever able to demand that you unlock it so they could conduct a search?
- uoaei 2y agoThey can demand, and you can refuse. However if you have Face ID or other biometric measures, they can (legally) force your finger onto the sensor or hold the phone up to your face to unlock it for their needs. Passwords are personal data, faces and fingerprints are not, apparently.
- dcdc123 2y agoFive taps of power button on iPhone disables biometrics until you enter the passcode. I always do this before going through airport security
- beeslol 2y agoAndroid has something similar - in the power menu [1] there's a "Lockdown" button which will lock your phone, disable biometrics, and disable showing notifications until you unlock with password. Depending on your version and flavour of Android you may need to enable this "Show Lockdown Option" in your settings. [1] Opening this varies - my pixel is power + vol up, some phones are hold power, etc.
- nehal3m 2y agoJust holding it down until it shows you the power off slider does the same. Easier to do in a panic.
- eurleif 2y ago>Passwords are personal data, faces and fingerprints are not, apparently. The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password. You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
- woleium 2y agoThey can still get your texts and contacts and call history from your car though. In many cars it syncs.
- JumpCrisscross 2y ago> They can still get your texts and contacts and call history from your car though. In many cars it syncs Source? If so, that's a privacy boon for CarPlay and Android Auto.
- alphabettsy 2y agoIt’s actually the native integrations that do this. Android Auto and CarPlay basically act as a display for your phone and little data leaves your device. Connect via Bluetooth to many vehicles and that data syncs to the car’s infotainment.
- throwaway290 2y ago> boon
- _flux 2y agoWhenever I pair my Android phone to e.g. a headset, it asks if I want to share my contacts. And, I suppose, also text messages, and I just checked there's that option with the paired vehicle (and it was unchecked).
- khimaros 2y agoit's so frustrating that this can't be disabled permanently so that it doesn't ask anymore.
- kube-system 2y agoHere’s one: https://www.theregister.com/2023/11/09/car_text_harvesting/ https://www.theregister.com/2023/11/09/car_text_harvesting/
- deleted 2y ago
- OptionOfT 2y agoDoes this apply only to U.S. Citizens? Or does it apply to everybody? And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
- CPAhem 2y agoIt is a pity it does not apply in Australia. They search 40,000 devices a year there, and consfiscate your device if you refuse.
- john_the_writer 2y agoI travel with a dumb phone. I do this because if I get mugged, I'm out something I don't care about. I wear a tin wedding ring when travelling too. I've been asked for my phone at customs, and I just hand over the "nokia". They can play snake all the like.
- usr1106 2y agoThe article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or North Korea, but in the end the decision is, as a foreigner you don't have those rights, the government does what it sees fit.
- returningfory2 2y agoWhich countries do you think have better rights regimes than the US? Ie which countries _are_ you willing to travel to?
- lionkor 2y agoNot OP but almost all of Europe comes to mind.
- ahdlakg 2y agoIt is amazing how the U.S. consistently gets away with this and is still perceived as a free country. In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.
- nmfisher 2y agoAustralia does this too.
- Someone1234 2y agoThe US also asks for a list of social media accounts, which is creepy.
- q1w2 2y agoI've crossed the border hundreds of times and no one has ever asked me for my social media accounts.
- plutaniano 2y agoIt’s a question on the DS-160, IIRC.
- ProllyInfamous 2y ago[flagged]
- stackskipton 2y agoThen your visa will be denied and case closed.
- dredmorbius 2y agoUS citizens cannot be denied (re)entry to the US. <https://www.aclunc.org/our-work/know-your-rights/know-your-rights-us-airports-and-ports-entry https://www.aclunc.org/our-work/know-your-rights/know-your-r...>
- Havoc 2y agoUse a burner phone for sketchy countries.
- tiahura 2y agoBad ruling that will be overturned on appeal. The government has a 100% absolute right and responsibility to control what's coming across the border. That's been the common law since King Narmer. In law school, it's common to skip these cases for time and have the professor summarize the caselaw as "you have no rights at border."
- deleted 2y ago[deleted]
- chuankl 2y agoIs it still the case that "at the border" actually means "anywhere within 100 miles of the US border"? https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone
- callalex 2y agoOr within 100 miles of an airport, which means pretty much everywhere is the border. It’s insane.
- aiisjustanif 2y agoThis is great but if you were to state this case when asked to search your phone, they can still deny entry or detain you regardless.