5 ms·

Does 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

Does 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 ago
It 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 ago
  I 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 ago
The 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 ago
  Which countries do you think have better rights regimes than the US? Ie which countries _are_ you willing to travel to?
  - lionkor 2y ago
    Not OP but almost all of Europe comes to mind.
    - southernplaces7 2y ago
      A continent where laws capable of sending you to prison for freely expressing certain opinions is your counter example to a lack of certain advanced individual rights in the U.S.
      - wasyl 2y ago
        Can you clarify which laws and opinions you have in mind?
        hiatus 2y ago
        Didn't a former Greek finance minister recently get banned from Germany for political reasons? In France it is illegal to deny the holocaust but legal to deny the Armenian genocide.
        southernplaces7 2y ago
        One noteworthy example of how absurdly politicized these kinds of speech restriction laws can be. Was the mass slaughter of up to 1.5 million Armenian men, women and even little children and babies somehow qualitatively less grotesque? Or perhaps the speech law itself is a muddled, politically oriented idiocy.
        southernplaces7 2y ago
        Many examples abound. Don't be lazy and do a google search. Granted, many of those opinions that create grounds for legal sanction in the EU are disagreeable ones, but that's how freedom of expression as a real right works, it applies to the shit you don't like or want to hear, not just socially condoned opinions.
- jkaplowitz 2y ago
  The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote). At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context. Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen. It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
  - usr1106 2y ago
    That sounds too good to be true. I neither have the legal skills nor the knowledge about the US constitution to tell you where it's incorrect. I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
    - jkaplowitz 2y ago
      There are indeed many things about the US system that treat foreigners as shit with respect to visa access. But none of that is about giving fewer constitutional rights to foreigners who are physically inside the US. Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.) The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel. Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement. Here are two examples of how foreigners have more (and approximately full) rights while inside the US: Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind. If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved. And so on.
john_the_writer 2y ago
Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments. And with the data sharing, there's nothing stopping Canada from sharing with the US.
- jkaplowitz 2y ago
  True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.
  - account42 2y ago
    > 8 provides protection against unreasonable search and seizure Doesn't seem to protect you if the government doesn't like your political opinions.
    - jkaplowitz 2y ago
      The only government action I think you might mean, the use of the Emergencies Act against the convoy protest occupying downtown Ottawa and its organizers and funding, might mean was in fact ruled by the Federal Court to violate section 8 of the Charter without being saved by section 1, though an appeal is still underway. That said, as far as I’m aware based on publicly available evidence (not simply speculation), in that situation the government was motivated more by the significant extended disruption from the protest than by the particular political views involved. What are you referring to?
stackskipton 2y ago
>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? Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.

CPAhem 2y ago

It 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 ago
I 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 ago

The 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 ago
Which countries do you think have better rights regimes than the US? Ie which countries _are_ you willing to travel to?
- lionkor 2y ago
  Not OP but almost all of Europe comes to mind.
  - southernplaces7 2y ago
    A continent where laws capable of sending you to prison for freely expressing certain opinions is your counter example to a lack of certain advanced individual rights in the U.S.
    - wasyl 2y ago
      Can you clarify which laws and opinions you have in mind?
      - hiatus 2y ago
        Didn't a former Greek finance minister recently get banned from Germany for political reasons? In France it is illegal to deny the holocaust but legal to deny the Armenian genocide.
        southernplaces7 2y ago
        One noteworthy example of how absurdly politicized these kinds of speech restriction laws can be. Was the mass slaughter of up to 1.5 million Armenian men, women and even little children and babies somehow qualitatively less grotesque? Or perhaps the speech law itself is a muddled, politically oriented idiocy.
      - southernplaces7 2y ago
        Many examples abound. Don't be lazy and do a google search. Granted, many of those opinions that create grounds for legal sanction in the EU are disagreeable ones, but that's how freedom of expression as a real right works, it applies to the shit you don't like or want to hear, not just socially condoned opinions.
jkaplowitz 2y ago
The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote). At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context. Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen. It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
- usr1106 2y ago
  That sounds too good to be true. I neither have the legal skills nor the knowledge about the US constitution to tell you where it's incorrect. I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
  - jkaplowitz 2y ago
    There are indeed many things about the US system that treat foreigners as shit with respect to visa access. But none of that is about giving fewer constitutional rights to foreigners who are physically inside the US. Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.) The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel. Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement. Here are two examples of how foreigners have more (and approximately full) rights while inside the US: Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind. If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved. And so on.

john_the_writer 2y ago

Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments. And with the data sharing, there's nothing stopping Canada from sharing with the US.

jkaplowitz 2y ago
True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.
- account42 2y ago
  > 8 provides protection against unreasonable search and seizure Doesn't seem to protect you if the government doesn't like your political opinions.
  - jkaplowitz 2y ago
    The only government action I think you might mean, the use of the Emergencies Act against the convoy protest occupying downtown Ottawa and its organizers and funding, might mean was in fact ruled by the Federal Court to violate section 8 of the Charter without being saved by section 1, though an appeal is still underway. That said, as far as I’m aware based on publicly available evidence (not simply speculation), in that situation the government was motivated more by the significant extended disruption from the protest than by the particular political views involved. What are you referring to?

stackskipton 2y ago

>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? Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.