4 ms·

Second Circuit allows government to search electronic devices at the border

130 points by HotGarbage 15d ago

jmclnx 14d ago
The article is not that clear in one way. Does this only apply to non-US Citizens ?
- weberer 14d ago
  Anybody crossing the border. The justification is that the government's constitutional right to control imports overrides the 4th amendment right to privacy. >“The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.” Id. at 620. Because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” United States v. Flores-Montano, 541 U.S. 149, 152 (2004), “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border,” Ramsey, 431 U.S. at 616. https://ww3.ca2.uscourts.gov/decisions/OPN/24-960_complete_opn.pdf https://ww3.ca2.uscourts.gov/decisions/OPN/24-960_complete_o...
  - petcat 14d ago
    So the argument is basically that Americans already consent to allowing customs to search anything and everything that they are physically bringing across the border, whether a US citizen or not, and now that is also affirmed to include the digital contents of electronic devices.
  - howdyhowdy 14d ago
    Worse though, is that the definition of border is hella loose. CBP can be many MANY miles away from an actual border and do this.
    - mingus88 14d ago
      100 miles to be clear. So many major cities are free reign. Entire counties. https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone
    - jwineinger 14d ago
      from https://www.help.cbp.gov/s/article/Article-1253?language=en_US https://www.help.cbp.gov/s/article/Article-1253?language=en_... > Immigration Officers, without a warrant, may "within a reasonable distance from any external boundary of the United States...board and search for non-citizens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border. from https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone > Nearly two-thirds of the U.S. population, over 213 million people, reside within the region that CBP considers falling within the 100-mile border zone, according to the 2020 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.
    - AnimalMuppet 14d ago
      Even worse: The Trump administration claimed international airports as part of the border. (I saw that once, months ago. I do not know what the legal state of that claim is, or even whether it is currently part of their theory of what they are allowed to do.)
      - r3trohack3r 14d ago
        Setting the “100 mile” thingamajig aside - why wouldn’t you consider an international airport part of your border? It is a port of entry.
        samus 14d ago
        The problem is the 100 mile rule, which effectively puts most of the population under the purview of border control measures. Apart from that, an airport is a comparatively small area of land that is magnitudes easier to monitor than a border that only exists as a thousands of miles long line on the map, therefore the 100 miles rule should not be applied. And everyone getting off an international flight in the USA has already been searched multiple times.
- tocs3 14d ago
  Near the top of the article: “Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,” I think this is just an extension of a general we, as government officials protecting American freedoms, can do what we want and will justify it later if we have to policy. It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering).
  - netsharc 14d ago
    East Germany built a wall to keep their citizens "free" of "fascist elements"...
    - tekla 14d ago
      You understand that no one actually believed that lie. It was built to stop people from running to west Germany.
  - samus 14d ago
    > It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering). That's pretty much irrelevant to the discussion. Of course a lot more crimes would get prosecuted if we lived in a total police state.
    - tocs3 14d ago
      I think it is important because the case was not about guilt or innocence. It was about the governments right to search without any cause. If the case was about whether there was enough cause for the search we would be having a much different discussion here. I should probably have said this in my original comment.
phkahler 14d ago
Is it a visual search, or do they make a copy of all your data?
- kotaKat 14d ago
  It probably depends how pissed off you made the officer at the border if he just wants to thumb through some recent text messages and photos to see if you're doing Crimes or if they're gonna go take it to the Cellebrite UFED in the backroom and dump it out. In other words... whom (or what) was perceived to have pissed in the CBP officer's Wheaties this morning? We'll never know what grudges he holds to make his decision.
- softwaredoug 14d ago
  This case is about a “visual search” as in CBP agent going through your photos. Not forensic tools copying / analyzing all the data
- jacobclaerhout 14d ago
  [flagged]
josefritzishere 14d ago
This is a blatant and direct violation of the Fourth 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.
- tekla 14d ago
  This has not been true since 1977 at the very least, but Fourth Amendment exception at the border has been around for longer than even that.
- ranger_danger 14d ago
  My understanding is that SCOTUS has held since the 50s that 'the people' means people inside the country, and a border does not count as being granted entry into the country yet, therefore the Constitution doesn't really apply, especially for non-citizens. https://supreme.justia.com/cases/federal/us/345/206/ https://supreme.justia.com/cases/federal/us/345/206/ > (c) Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes. And another gem from the same case that is recently all the more relevant: > Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government. Meaning they can seize all your stuff and deport you if you criticize the government. Also, immigration lawyers are part of the Executive branch.
- tencentshill 14d ago
  You literally have more rights if you successfully cross illegally. This only harms people crossing the legal way. Illegal crossers who are later arrested have protection - any search will require probable cause and a warrant.
majorchord 14d ago
I thought this was already allowed and the norm for many years?
- mingus88 14d ago
  You are right. What most people don’t understand however is that “the border” extends for 100 miles https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone This effectively means border patrol can do whatever they want in areas that do not involve a border crossing and involve citizens just living their normal lives
  - realo 14d ago
    That concerns more than 220 million people in the USA, who can be arbitrarily stopped in the street and searched. Be afraid...
    - weaksauce 14d ago
      ...which is about 2/3rds the population of america.
  - Arubis 14d ago
    Note also that that 100 miles _is a radius around your nearest international airport_ and need not be what you think of as a border, i.e. a line drawn between two land masses.
    - iamnothere 14d ago
      This is not correct, it’s a common but false misunderstanding. The text of the law does not support this and the ACLU/EFF don’t see it as a likely problem. People should stop repeating this claim or it will become one of those “folk truths” that eventually becomes accepted and real.
      - Arubis 14d ago
smalltorch 14d ago
So store your data in a secure location and only access it with devices if your a journalist?
- howdyhowdy 14d ago
  Isn't it telling that if your immediate thought is to subvert said LAW? That doesn't seem to be serving the people then does it, but the state. The state is supposed to serve its people
  - smalltorch 14d ago
    I assume journalists would already do this actually maybe they don't? There dosent appear to be any import/export controls on the current internet is there? If they say import export control gives them the right to search citizens maybe they should be aware of this giant gapping hole that the internet created 30+ years ago?
  - samus 14d ago
    How is the law subverted if one doesn't make all data immediately available?
  - moate 14d ago
    I mean, that's what the State tells you to stop uprising, but there has never in history been a state that served the people it governed, it serves the people who govern. It's all just big gangs with weapons, and sometimes one gang takes over another's territory. Everything else is window dressings to prevent other gangs from forming.
jchanimal 14d ago
Since removing a nation-state rootkit is not structurally possible, how is this any different from requiring the device to be forfeited? If all search == seizure and destruction, does that change the legal basis?
- dmitrygr 14d ago
  > Since removing a nation-state rootkit is not structurally possible, on an iPhone, DFU-flash (using apple configurator) reads NO state from the phone and overwrites ALL state. Nowhere for rootkit to live. If you are worried, do that.
softwaredoug 14d ago
Doing a bit of research, this applies to what’s considered a “manual search” as in a CBP agent spending time manually looking at your phone. It does not appear to allow (or speak to?) plugging your phone into forensic tools for a deeper inspection. Not great, but I think that’s what’s being specifically adjudicated here. They still cannot deny an US citizen entry if you decline to unlock your phone, though they may confiscate your device. I don’t know if they would then be allowed to do deeper forensics without a warrant.
k310 14d ago
Everyone please read Surveillance Self Defense from EFF [0] My advice, take a burner phone to the airport (and elsewhere?), and since devices are subject to warrantless search anywhere and everywhere, via exceptions to the fourth amendment [1] (the constitution seems designed to be bent or outright ignored), keep your data at home and encrypted. The "cloud" is a government data supermarket. For example. > While the Fourth Amendment is the foundation, federal and state laws can add layers of complexity. For example, the Patriot Act expanded the government's ability to conduct surveillance and searches, particularly in national security cases, sometimes with a lower burden of proof than traditional criminal investigations. MUCH lower. [0] https://ssd.eff.org/ https://ssd.eff.org/ [1] https://uslawexplained.com/warrantless_search https://uslawexplained.com/warrantless_search
- FuriouslyAdrift 14d ago
  When I travel internationally, I do not take any electronics with me. If I need a cell phone, laptop, etc., then I will buy or rent something cheap at the destination. I got into the habit while traveling back and forth the mainland China as it was our corporate policy (and we never brought any electronics back, either).
  - alyeska2 14d ago
    I tried that once. Then when I tried to log in to my Gmail account at my destination, it flagged it as a suspicious login attempt and wouldn't let me in without entering a code they texted to my American phone number, which meant I was locked out of my email for the duration of the trip. Plus travel day realities often require your phone and accounts - plane tickets, Uber/Lyft, hotel reservations or updates from Airbnb with check-in instructions, door codes, etc. It's a tremendous challenge and hassle for any regular person. We really just need to push back on the government overreach. It's tragic that half of the Trump voters proclaim to be "small government" and "Don't tread on me" but then tolerate things like this. There's certainly a bipartisan group of people opposed that are large enough to effect change if we work together.
    - 14d ago
trickybusiness 14d ago
[flagged]
Joel_Mckay 14d ago
And in response, every other country will start ejecting US citizens after rummaging though their meaningless online critiques of the glorious leader. People did not think this policy through fully. =3
- tocs3 14d ago
  People did not think this policy through fully. It seams more likely that it was thought through and officials just don't care.
ck2 14d ago
it's not just a device problem, the whole constitution is suspended 100 miles around the entire border of the US, we have no rights (look at FLORIDA, the entire state!) * https://www.wired.com/2008/10/aclu-assails-10/ https://www.wired.com/2008/10/aclu-assails-10/ * https://www.aclu.org/documents/know-your-rights-100-mile-border-zone https://www.aclu.org/documents/know-your-rights-100-mile-bor... * https://www.congress.gov/crs_external_products/R/HTML/R46601.html#_Ref40429957 https://www.congress.gov/crs_external_products/R/HTML/R46601...
- clint 14d ago
  And the "border" in this case includes a 100 mile circle around any international airport
  - iamnothere 14d ago
    It does not, this is not in the law. This is a false misunderstanding that somehow keeps getting propagated. A few civil rights people have looked into it and don’t see it as a likely problem, and there haven’t been cases where the government was able to use this argument.
yieldcrv 14d ago
doesn’t this affirm an existing ruling in a different appeals circuit or the Supreme Court?

130 points by HotGarbage 15d ago

jmclnx 14d ago

The article is not that clear in one way. Does this only apply to non-US Citizens ?

weberer 14d ago
Anybody crossing the border. The justification is that the government's constitutional right to control imports overrides the 4th amendment right to privacy. >“The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.” Id. at 620. Because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” United States v. Flores-Montano, 541 U.S. 149, 152 (2004), “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border,” Ramsey, 431 U.S. at 616. https://ww3.ca2.uscourts.gov/decisions/OPN/24-960_complete_opn.pdf https://ww3.ca2.uscourts.gov/decisions/OPN/24-960_complete_o...
- petcat 14d ago
  So the argument is basically that Americans already consent to allowing customs to search anything and everything that they are physically bringing across the border, whether a US citizen or not, and now that is also affirmed to include the digital contents of electronic devices.
- howdyhowdy 14d ago
  Worse though, is that the definition of border is hella loose. CBP can be many MANY miles away from an actual border and do this.
  - mingus88 14d ago
    100 miles to be clear. So many major cities are free reign. Entire counties. https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone
  - jwineinger 14d ago
    from https://www.help.cbp.gov/s/article/Article-1253?language=en_US https://www.help.cbp.gov/s/article/Article-1253?language=en_... > Immigration Officers, without a warrant, may "within a reasonable distance from any external boundary of the United States...board and search for non-citizens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border. from https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone > Nearly two-thirds of the U.S. population, over 213 million people, reside within the region that CBP considers falling within the 100-mile border zone, according to the 2020 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.
  - AnimalMuppet 14d ago
    Even worse: The Trump administration claimed international airports as part of the border. (I saw that once, months ago. I do not know what the legal state of that claim is, or even whether it is currently part of their theory of what they are allowed to do.)
    - r3trohack3r 14d ago
      Setting the “100 mile” thingamajig aside - why wouldn’t you consider an international airport part of your border? It is a port of entry.
      - samus 14d ago
        The problem is the 100 mile rule, which effectively puts most of the population under the purview of border control measures. Apart from that, an airport is a comparatively small area of land that is magnitudes easier to monitor than a border that only exists as a thousands of miles long line on the map, therefore the 100 miles rule should not be applied. And everyone getting off an international flight in the USA has already been searched multiple times.
tocs3 14d ago
Near the top of the article: “Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,” I think this is just an extension of a general we, as government officials protecting American freedoms, can do what we want and will justify it later if we have to policy. It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering).
- netsharc 14d ago
  East Germany built a wall to keep their citizens "free" of "fascist elements"...
  - tekla 14d ago
    You understand that no one actually believed that lie. It was built to stop people from running to west Germany.
- samus 14d ago
  > It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering). That's pretty much irrelevant to the discussion. Of course a lot more crimes would get prosecuted if we lived in a total police state.
  - tocs3 14d ago
    I think it is important because the case was not about guilt or innocence. It was about the governments right to search without any cause. If the case was about whether there was enough cause for the search we would be having a much different discussion here. I should probably have said this in my original comment.

phkahler 14d ago

Is it a visual search, or do they make a copy of all your data?

kotaKat 14d ago
It probably depends how pissed off you made the officer at the border if he just wants to thumb through some recent text messages and photos to see if you're doing Crimes or if they're gonna go take it to the Cellebrite UFED in the backroom and dump it out. In other words... whom (or what) was perceived to have pissed in the CBP officer's Wheaties this morning? We'll never know what grudges he holds to make his decision.
softwaredoug 14d ago
This case is about a “visual search” as in CBP agent going through your photos. Not forensic tools copying / analyzing all the data
jacobclaerhout 14d ago
[flagged]

josefritzishere 14d ago

This is a blatant and direct violation of the Fourth 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.

tekla 14d ago
This has not been true since 1977 at the very least, but Fourth Amendment exception at the border has been around for longer than even that.
ranger_danger 14d ago
My understanding is that SCOTUS has held since the 50s that 'the people' means people inside the country, and a border does not count as being granted entry into the country yet, therefore the Constitution doesn't really apply, especially for non-citizens. https://supreme.justia.com/cases/federal/us/345/206/ https://supreme.justia.com/cases/federal/us/345/206/ > (c) Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes. And another gem from the same case that is recently all the more relevant: > Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government. Meaning they can seize all your stuff and deport you if you criticize the government. Also, immigration lawyers are part of the Executive branch.
tencentshill 14d ago
You literally have more rights if you successfully cross illegally. This only harms people crossing the legal way. Illegal crossers who are later arrested have protection - any search will require probable cause and a warrant.

majorchord 14d ago

I thought this was already allowed and the norm for many years?

mingus88 14d ago
You are right. What most people don’t understand however is that “the border” extends for 100 miles https://www.aclu.org/know-your-rights/border-zone https://www.aclu.org/know-your-rights/border-zone This effectively means border patrol can do whatever they want in areas that do not involve a border crossing and involve citizens just living their normal lives
- realo 14d ago
  That concerns more than 220 million people in the USA, who can be arbitrarily stopped in the street and searched. Be afraid...
  - weaksauce 14d ago
    ...which is about 2/3rds the population of america.
- Arubis 14d ago
  Note also that that 100 miles _is a radius around your nearest international airport_ and need not be what you think of as a border, i.e. a line drawn between two land masses.
  - iamnothere 14d ago
    This is not correct, it’s a common but false misunderstanding. The text of the law does not support this and the ACLU/EFF don’t see it as a likely problem. People should stop repeating this claim or it will become one of those “folk truths” that eventually becomes accepted and real.
    - Arubis 14d ago

smalltorch 14d ago

So store your data in a secure location and only access it with devices if your a journalist?

howdyhowdy 14d ago
Isn't it telling that if your immediate thought is to subvert said LAW? That doesn't seem to be serving the people then does it, but the state. The state is supposed to serve its people
- smalltorch 14d ago
  I assume journalists would already do this actually maybe they don't? There dosent appear to be any import/export controls on the current internet is there? If they say import export control gives them the right to search citizens maybe they should be aware of this giant gapping hole that the internet created 30+ years ago?
- samus 14d ago
  How is the law subverted if one doesn't make all data immediately available?
- moate 14d ago
  I mean, that's what the State tells you to stop uprising, but there has never in history been a state that served the people it governed, it serves the people who govern. It's all just big gangs with weapons, and sometimes one gang takes over another's territory. Everything else is window dressings to prevent other gangs from forming.

jchanimal 14d ago

Since removing a nation-state rootkit is not structurally possible, how is this any different from requiring the device to be forfeited? If all search == seizure and destruction, does that change the legal basis?

dmitrygr 14d ago
> Since removing a nation-state rootkit is not structurally possible, on an iPhone, DFU-flash (using apple configurator) reads NO state from the phone and overwrites ALL state. Nowhere for rootkit to live. If you are worried, do that.

softwaredoug 14d ago

Doing a bit of research, this applies to what’s considered a “manual search” as in a CBP agent spending time manually looking at your phone. It does not appear to allow (or speak to?) plugging your phone into forensic tools for a deeper inspection. Not great, but I think that’s what’s being specifically adjudicated here. They still cannot deny an US citizen entry if you decline to unlock your phone, though they may confiscate your device. I don’t know if they would then be allowed to do deeper forensics without a warrant.

k310 14d ago

Everyone please read Surveillance Self Defense from EFF [0] My advice, take a burner phone to the airport (and elsewhere?), and since devices are subject to warrantless search anywhere and everywhere, via exceptions to the fourth amendment [1] (the constitution seems designed to be bent or outright ignored), keep your data at home and encrypted. The "cloud" is a government data supermarket. For example. > While the Fourth Amendment is the foundation, federal and state laws can add layers of complexity. For example, the Patriot Act expanded the government's ability to conduct surveillance and searches, particularly in national security cases, sometimes with a lower burden of proof than traditional criminal investigations. MUCH lower. [0] https://ssd.eff.org/ https://ssd.eff.org/ [1] https://uslawexplained.com/warrantless_search https://uslawexplained.com/warrantless_search

FuriouslyAdrift 14d ago
When I travel internationally, I do not take any electronics with me. If I need a cell phone, laptop, etc., then I will buy or rent something cheap at the destination. I got into the habit while traveling back and forth the mainland China as it was our corporate policy (and we never brought any electronics back, either).
- alyeska2 14d ago
  I tried that once. Then when I tried to log in to my Gmail account at my destination, it flagged it as a suspicious login attempt and wouldn't let me in without entering a code they texted to my American phone number, which meant I was locked out of my email for the duration of the trip. Plus travel day realities often require your phone and accounts - plane tickets, Uber/Lyft, hotel reservations or updates from Airbnb with check-in instructions, door codes, etc. It's a tremendous challenge and hassle for any regular person. We really just need to push back on the government overreach. It's tragic that half of the Trump voters proclaim to be "small government" and "Don't tread on me" but then tolerate things like this. There's certainly a bipartisan group of people opposed that are large enough to effect change if we work together.
  - 14d ago

trickybusiness 14d ago

[flagged]

Joel_Mckay 14d ago

And in response, every other country will start ejecting US citizens after rummaging though their meaningless online critiques of the glorious leader. People did not think this policy through fully. =3

tocs3 14d ago
People did not think this policy through fully. It seams more likely that it was thought through and officials just don't care.

ck2 14d ago

it's not just a device problem, the whole constitution is suspended 100 miles around the entire border of the US, we have no rights (look at FLORIDA, the entire state!) * https://www.wired.com/2008/10/aclu-assails-10/ https://www.wired.com/2008/10/aclu-assails-10/ * https://www.aclu.org/documents/know-your-rights-100-mile-border-zone https://www.aclu.org/documents/know-your-rights-100-mile-bor... * https://www.congress.gov/crs_external_products/R/HTML/R46601.html#_Ref40429957 https://www.congress.gov/crs_external_products/R/HTML/R46601...

clint 14d ago
And the "border" in this case includes a 100 mile circle around any international airport
- iamnothere 14d ago
  It does not, this is not in the law. This is a false misunderstanding that somehow keeps getting propagated. A few civil rights people have looked into it and don’t see it as a likely problem, and there haven’t been cases where the government was able to use this argument.

yieldcrv 14d ago

doesn’t this affirm an existing ruling in a different appeals circuit or the Supreme Court?