Homeland Security Border Agents Can Seize Your Phone (cnn.com)

Slashdot reader v3rgEz writes: A Wall Street Journal reporter has shared her experienced of having her phones forcefully taken at the border -- and how the Department of Homeland Security insists that your right to privacy does not exist when re-entering the United States. Indeed, she's not alone: Documents previously released under FOIA show that the DHS has a long-standing policy of warrantless (and even motiveless) seizures at the border, essentially removing any traveler's right to privacy.
"The female officer returned 30 minutes later and said I was free to go," according to the Journal's reporter, adding. "I have no idea why they wanted my phones..."

Comments

Encryption

[Anonymous Coward]

Keep your phone encrypted and always power it off when crossing the border. They can seize your phone but can't compel you to decrypt it.

Re:Encryption

[Anonymous Coward]

Same goes for your computers and any hard drives or usb sticks. They are allowed to copy all its contents. So better use encryption for those as well, and power off your computers so that they can't do cold boot attacks or hijack some internal bus to read out the decryption key.

Either way, if its really important you should use burner hardware anyway, as they can always insert some backdoor into the hardware, nobody prevents them from that and the laws allow it in certain cases.

Re:Encryption

[Anonymous Coward]

Exactly this. In this era of a complete disregard for the 4th amendment, anyone NOT using strong encryption on all their electronics: phones, desktop computers, laptops, etc, is asking for this. Even worse, they're enabling it, because it teaches the authorities that this kind of seizure works.

How many times do we need to see the same thing happen before we learn?

Encrypt everything. Turn it off before getting anywhere near the airport, or when anywhere near police. Leave it off until you get to your destination. It sucks, yes, but it's the only way to preserve a tattered shard of the civil rights you used to have.

Re:Encryption

[ArchieBunker]

They can't compel you but they could hold you in jail for a while.

Re:Encryption

[Anonymous Coward]

Not if you travel for business.

Re:Encryption

[Z00L00K]

The decryption key is on the company server which requires internet access.

Re:Encryption

[MobSwatter]

OR you could just leave it home. I do.

No way man, to see a TSA agent stoop to stealing an old and busted hacked up Android phone is far too entertaining. I'd be more curious to see how phone carriers tend to such mishaps if the phone is under contract. Do they just buy it back from them off eBay?

Re: Encryption

[dnaumov]

Oh, how naive. OF COURSE THEY CAN compel you to give up your encryption password/key. It is trivial and occurs simply by denying you entry to the country until you comply.

Re:Encryption

[inode_buddha]

True that. Makes you wonder how humanity even functioned before they were invented. (sarc)

Re:Encryption

[inode_buddha]

Some asshole needs to explain to me how this is "over rated". Frankly, I LOVE being completely unplugged and disconnected from it all.... almost like a vacation.

Re: Encryption

[thundercattt]

Or USB stick. I have my laptop setup with a dead man. If the USB isn't inserted for decryption, laptop has another partition with an image. It reboots and begins reinstalling the OS. Checkmate.

Re:Encryption

[Wrath0fb0b]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion. Even then, the duration of the detention must be limited to the time necessary to confirm or dispel that suspicion. And even if there is reasonable suspicion, under no circumstances can the duration exceed 48 hours without a judicial hearing.

See this handy guide [PDF] for more details and lots of citations. Or here's a quote for the lazy:

There appear to be no âoehard-and-fast time limitsâ that automatically transform what would otherwise be a routine search into a non-routine search, nor render a non-routine search conducted under the reasonable suspicion standard unconstitutional. Rather, courts consider âoewhether the detention of [the traveler] was reasonably related in scope to the circumstances which justified it initially.â In order to provide perspective, the 16-hour detention in Montoya de Hernandez was considered a non-routine search (justifiable by reasonable suspicions), while a one-hour vehicular search did not require reasonable suspicion. The Second Circuit has characterized four- to six-hour-long detentions of individuals suspected of having terrorist ties as routine.

However, the Fifth Circuit in United States v. Adekunle concluded that the government must, within a reasonable time (generally within 48 hours), seek a judicial determination that reasonable suspicion exists to detain a suspect for an extended period of time.

Re:Encryption

[coolsnowmen]

That sentiment is fine for hanging out with friends, but in my line of work a cell phone is required. The company was then faced with a choice, take on a large cost of buying everyone phones, or split the cost with the employees. Since we all had out own phones anyways, the decision was unanimous: 1 phone, less to carry, cheaper for everyone, more money in my pocket and my companies pocket.

Long story short, my "personal" cell phone is required on my work trips.

Re:Encryption

[spire3661]

You chose convenience over security...This is a dilemma of your own making. You CHOSE to make it required.

Re:Encryption

[myowntrueself]

Keep your phone encrypted and always power it off when crossing the border. They can seize your phone but can't compel you to decrypt it.

They can keep you in detention on the border until you do decrypt it. You have no rights at all on the border. You can be detained indefinitely. International travel is inherently unsafe.

Re:Encryption

[myowntrueself]

They can't compel you but they could hold you in jail for a while.

No, if they sent you to a jail you wouldn't be on the border any more. If they keep you on the border you are in legal limbo. They'll just keep you in a tiny holding cell, eating airline food, for several months until you decide to comply.

Re:Encryption

[myowntrueself]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion. Even then, the duration of the detention must be limited to the time necessary to confirm or dispel that suspicion. And even if there is reasonable suspicion, under no circumstances can the duration exceed 48 hours without a judicial hearing.

You honestly believe TSA have ever read that or care about it?

Re:Encryption

[Dunbal]

The government workers needs to follow the constitution even when they are in another country.

Guantanamo. Discuss.

Re:Encryption

[JoeMerchant]

They can seize your phone but can't compel you to decrypt it.

I sincerely believe that some of the increase in quality of police officers (yes, I know, hard to see lately) is attributable to TSA being a place where "bad cops" can go and not get tossed out with a psych profile. Which is leading up to: TSA may not be able to legally compel you to do much, but they are empowered to detain, and that can be enough sometimes.

If you'd rather not be detained, for an arbitrary amount of time deemed "necessary" by the officers at the scene, be prepared to play nice. In the case of phones, that would probably mean keeping anything you want stealthed, stealthed without being "in your face, the whole thing is encrypted suckah! what'cha gonna do 'bout it?"

Re:Encryption

[AmiMoJo]

Refusing to enter your password is reasonable suspicion. You are clearly hiding something.

Re:Encryption

[Anonymous Coward]

Keep your phone encrypted and always power it off when crossing the border. They can seize your phone but can't compel you to decrypt it.

A far safer solution (well this might be an issue for business travelers with large contact lists) is to just leave your regular cell phone at home and buy a $9 pay-as-you-go phone. Then load it up with the bare minimum number of contacts needed. Once you're back in the US just toss it. If they don't bother taking it into a back room someplace you could even keep it for the next time you travel or keep it in your car for the next time a nosy traffic cop demands to see your cell phone.

Re:Encryption

[AmiMoJo]

At the UK border they can demand you power on your electronics. In theory it's to prove that they are real. It's not clear how far they can demand you go... Full boot up or just to the encryption key prompt.

I've taken to simply wiping the whole machine, installing a dummy OS and then restoring from an image when I get to my destination. The image is stored encrypted on a server and I don't have access to the password. Ditto with my phone.

Re:Encryption

[shubus]

Encryptiion? I've got another idea. An iPhone allows you to backup to the cloud after which you can then wipe the iPhone clean. Later when away from the border, a full restore can be preformed. Reporters may want to consider this option.

Re:Encryption

[thegarbz]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion. Even then, the duration of the detention must be limited to the time necessary to confirm or dispel that suspicion. And even if there is reasonable suspicion, under no circumstances can the duration exceed 48 hours without a judicial hearing.

You do realise you're talking about an agency here which effectively has established that they will ignore constitutional rights, right?

Re:Encryption

[Copid]

Computers are optional for business as well, as long as you're serious enough about it.

Re:Encryption

[Copid]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion. Even then, the duration of the detention must be limited to the time necessary to confirm or dispel that suspicion. And even if there is reasonable suspicion, under no circumstances can the duration exceed 48 hours without a judicial hearing.

Exactly. So expect to spend 47 hours and 59 minutes in jail and don't expect and apology after you pay a lawyer to help get you out.

Re:Encryption

[Anonymous Coward]

We also would like to choose not to starve. Part of that choice is compromise. Adults make these choices all the time. Children, retarded individuals and losers in their parents' basements do not. This is the difference a compyootah loser can't understand. Ist das klar, nerd?

Re:Encryption

[Anonymous Coward]

Pretty much this. The Patriot Act was pretty much the defining moment where Congress felt they could undo whole sections of the constitution because "da tersts gunna git us boys" , it has set a precedent for organizations across the US government to completely ignore some of the most basic rights, especially to privacy, as laid out in the Constitution. There have been some recent privacy wins but it will take decades, if ever that the Patriot Act and it's knee jerk reaction always sacrificing freedom for fear is rescinded.

Re:Encryption

[JustAnotherOldGuy]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion.

Lol, you must be unfamiliar with the TSA, and the way American police authorities in general conduct their day-to-day business.

In theory, you're correct. In reality, they do whatever the fuck they want, when they want, and the way they want. If you manage to survive the experience you're welcome to spend tens or even hundreds of thousands of dollars in court in an attempt to seek redress for your grievances.

You'll win about 0.05% of the time, but that doesn't mean you'll actually get any money or effect any change within the department that abused you or denied you your rights. You might (if you're lucky) get a couple of officers retrained, but that's like putting a band-aid on a brain tumor.

Re:Encryption

[SeaFox]

Incorrect. Prolonged (non-routine) detentions must be based on reasonable suspicion.

Searches of papers and belongings for evidence are also supposed to be based on a reasonable suspicion.

Re:Encryption

[epyT-R]

Really, the solution is political. TSA needs to be cleaned up and reformed, and the politicians who passed the relevant laws voted out.

Re:Encryption

[Khyber]

You obviously don't travel for business.

I went to the UK, the company I was working for had a company phone with every number I needed pre-programmed, ready to hand to me after I got off the plane and out of the airport once inside the UK. Before going back to the USA, hand them the phone back before entering the airport.

Re:Encryption

[epyT-R]

It's a shitty interpretation. Constitutional rights belong to citizens, not the turf. If the person is a US citizen, the US government is required to respect his rights whether he's on US soil or not.

Re:Encryption

[epyT-R]

*should be required

sorry

Re:Encryption

[hattable]

Am I the only one who has done this and said "No thank you officer. I am not required to do so, and will not. Am I being detained?"

Officer: "Okay, have a nice day."


Maybe it has something to do with when you scream "FOURT AMENTDEMENT FORTH ADEMENTDMENT SEAARCH AND SEIZURE STOP INFRINGING ON MY CONSTITUTION" that has something to do with how you are treated. And (bring on the downvotes)...you are not that interesting.

Re:Encryption

[HiThere]

While I agree, the abuse by the border police, under whatever name, long precedes the TSA.

Re:Encryption

[AmiMoJo]

Well, I'm not in the US and would never travel there, so that probably won't work. In the UK they can detain you for hours on a whim. Make sure you miss you fight. You might take them to court and win a year or two later, and get some compensation...

Re:Encryption

[HiThere]

I don't know whether they have the right to demand it, but they certainly have the power.

The solution is to use a password you can generate from a key based around a popular book, and carry the key written on a piece of paper that you use as a book-mark (not the same book). (You *could* even e-mail it to yourself as long as the book isn't known.) Then use that to decode some encrypted file out on the net that contains the information you need. (Contact information, etc.)

It's a bother, but easily doable. Just be sure to resave the work encrypted in your drop box, and erase all intermediate stages before the next border crossing.

Re:Encryption

[HiThere]

That's not quite true. Many of the "rights" aren't directly rights, but rather limitations on the authority of the government to act, and often those do not depend on the nationality of the person affected.

Re:Encryption

[Anonymous Coward]

He said they could hold you in jail for a while and you "corrected" him by saying it's only 48 hours.

"Sorry, boss, I know you expected me to show up on Monday, but Wednesday is close enough, right?"

Imagine you were kidnapped for 2 days. If someone said "you must feel very angry and violated" you wouldn't start your reply with "Incorrect."

Re:Encryption

[Pseudonym]

You can avoid fourth amendment violations by leaving your persons, papers, and effects in your houses.

Re:Encryption

[Intron]

Josh Wolf served 226 days for refusing to give up information.

Re:Encryption

[Martin Blank]

I do not, nor have I ever, used my personal cell phone for work purposes. Key work people may have the number for emergency purposes, but it's made clear that me providing that number is a serious point of trust, and that it should never be used except for the most dire circumstances. My work cell not answering doesn't count. Clients are to *never* get that number.

About a year ago, I took a job where they don't provide a phone. I chose instead to purchase a separate line that is used entirely for business. Only a few personal contacts have the number (parents and wife, basically). If I ever leave the company, the line gets disabled (phone was purchased off contract) so I don't have to field calls from clients. Even if I choose to use the phone with a new employer, it will get a different number. The cost of the phone and extra line comes off taxes each year.

When traveling internationally, the phone gets backed up, wiped, and reinitialized with a separate ID that has no links to the old except for necessary work contacts. Something similar happens to the notebook. After returning home, what little new data is present is backed up, then the pre-trip backups are restored.

All devices are fully encrypted, so reinitialization gets a fully clean start.

Re: Encryption

[BlytheBowman]

It's great to have your devices encrypted incase they are seized, but what do you do when they seize your *body*? What would you do when you are given the choice of giving them the password, or spend the next 3 decades sucking Bubba's dick (this choice given after being strapped down in a Pro-straint chair, sprayed with OC/pepper spray, a spithood placed over your head to keep the gasses in, and maybe a few blows to the ribs with a heavy police baton and left that way for at least 10 hours)

Re:Encryption

[Wrath0fb0b]

Josh Wolf served 226 days for failure to comply with a subpoena issued by a district court judge pursuant to a court ordered entered into during a grand jury investigation. His case in no way involved a border search. And right or wrong, it has no bearing on this topic.

What we were discussing here was border searches and what sort of searches and seizures agents can carry out without any judicial hearing. Like what sort of searches can be carried out and what sort of limits on the duration of said searches might be before the agent needs to go to a judge.

So either you don't know that the two have nothing at all to do with one another (except in the sense that 'both involves the US legal system', which also relates my speeding tickets to OJ's murder trial) or you did figure that out but are posting off topic nonsense anyway.

Re:Encryption

[Wrath0fb0b]

You know we were talking about the CBP, not the TSA, right?

Re: Encryption

[BlytheBowman]

Awww, you believe what is written on paper is what they follow in reality! How cute. Reality: They can dogpile on you with 10 heavily body armored jail CERT team members, beat the shit out of you spray OC gas in your face, strap you in restraints, beat the shit out of you some more while you are in those restraints, and toss you into cell with a rapist twice your size with a penis as thick as a tree branch who is eager to penetrate you in every orfice. If you survive all this shit, and maybe if you are lucky, you can sue the gov't and win damages worth about the cost of the nose cone and perhaps a fuel tank of a fighter jet, MAYBE.

Re:Encryption

[Wrath0fb0b]

Routine searches of items as they travel across the international border into the US have never been basedon on reasonable suspicion. That was the custom at the time when the Fourth Amendment was ratified and continues in unbroken tradition today.

I specifically say 'routine' to mean things like xray of baggage or vehicles, inspection of cargo,
provision of payment for customs/tariffs, verification of visas/passports and the like. No one has ever suggested that a country should allow people and goods to enter without being checked for compliance. Nor would most of the useful parts of the regulatory state (e.g. the requirement for pharmaceuticals to be safe/pure) be possible if anyone could bring suitcases of the knockoff Chinese medicine through the airport without fear of a search.

Of course, neither extreme position ('the border police can do anything/nothing') is tenable. What I was trying to document is the limits on either end. So you have the sort of short interview on the one hand and the 48 hour hard limit that requires judicial authorization on the other.

Re:Encryption

[Wrath0fb0b]

You realize we're talking about the CBP, not the TSA?

Re:Encryption

[JustAnotherOldGuy]

You realize we're talking about the CBP, not the TSA?

Yes, but if you think there's a difference in how they operate, you're mistaken. If anything, the CBP is even worse.

Re:Encryption

[jrumney]

In the UK they can detain you for hours on a whim. Make sure you miss you fight.

The things that happen when you're on the way to an important football game...

Re: Encryption

[Actually, I do RTFA]

They're argue net isn't "the constitution doesn't apply". It's that there is a very low expectation of privacy, and a very real reasonable reason to search all people crossing a border. The fourth amendment forbids unreasonable searches. While most people are aware that a warrant (legal overview) or exigent circumstances (hearing cries for help) constitute a reasonable reason for a search, so the courts have ruled does entering the United States.

Re:Encryption

[myowntrueself]

International travel is inherently unsafe.

Which is why I never leave the United States. Why would I want to go anywhere else? It's just a giant hassle and unsafe to boot.

Its entering or re-entering the USA thats most dangerous. So leave and don't go back.

Re:Encryption

[dbIII]

Refusing to hand over the phone would be considered a reasonable suspicion.
The TSA has you by the balls - frequently in a literal sense.

Re:Encryption

[dbIII]

"No thank you officer. I am not required to do so, and will not. Am I being detained?"

While not having a dark skin may save you from a beating and imprisonment if you say that on the street where you live to a cop it's not likely to work with the TSA. Isn't equality wonderful? You get treated as if you are black in the wrong place even with white skin if you piss off those ball squeezers.

Re: Encryption

[CaptQuark]

Which is why they just copy the entire hard drive in situ. After returning your laptop, they can open a copy of your OS and files in a virtual machine. If it tries to boot from the alternate partition and overwriting the partition in question, they just load another copy of your files and work around your trick.

If your primary partition is encrypted, that might set them back another 30 minutes to determine the encryption key. It isn't as easy as using "xyzzy" as an override passphrase, but almost.

--

Re: Encryption

[0111 1110]

Am I missing something? What good is reinstalling the OS going to do you? They can just remove your hard drive and access all of your files from their own machines. They might even be able to reset your bios and just boot with a Linux live CD or WinPE. A real dead mans switch would have to either physically destroy the hard drive or somehow have time to overwrite at least the most sensitive data with random bits.

Re:Encryption

[stealth_finger]

International travel is inherently unsafe.

Which is why I never leave the United States. Why would I want to go anywhere else? It's just a giant hassle and unsafe to boot.

I bet half the guys in the prison yard feel the same.

Re:Encryption

[Maritz]

Getting work calls on your personal phone? Yuuuck. Do not want.

Re:Encryption

[houghi]

I do the opposite. I leave it unencrypted and I have no passwrords enabled when I cross the border. All data is removed from any device.

That way when they want to take a look, they see a blank system. Then when I am in country, I will restore my system over network and add the passwords again.
They can seize my phone, but there is no data to decrypt, so no resaon to try to preasure it out of me.

I do this both with my phone and my PC. First try this at home to see how this works. See that the restore is done over a secure connection. I use my own server at home, not anything in the cloud.

Re:Encryption

[Maritz]

Pretty much this. The Patriot Act was pretty much the defining moment where Congress felt they could undo whole sections of the constitution because "da tersts gunna git us boys" , it has set a precedent for organizations across the US government to completely ignore some of the most basic rights, especially to privacy, as laid out in the Constitution. There have been some recent privacy wins but it will take decades, if ever that the Patriot Act and it's knee jerk reaction always sacrificing freedom for fear is rescinded.

That kinda makes it sound like your Congresspersonages actually think terrorists are a threat, which I think is being overly generous. They know that they're a minmal threat, but the oppotunity to grab power presents itself very clearly to them.

Re:Encryption

[tburkhol]

That's not what he's saying. You must have a phone for business. Fine. We all get that. It doesn't have to be your phone. Even if your employer offers you perks in exchange for using a device you own. you always have the choice to buy and carry a second, personal phone for personal use, for things you don't want subject to corporate search, or for things you don't want to carry through border crossings.

We expect this behavior of our public officials: of course they conduct business using only 'official' devices, accounts, and servers, and of course they never use those devices for campaigning or personal business. Sure it's inconvenient, maybe even expensive, to carry two or three phones, but if your life spans multiple privacy domains, maybe that expense is justified.

Re:Encryption

[tburkhol]

Constitutional rights belong to citizens, not the turf. If the person is a US citizen, the US government is required to respect his rights whether he's on US soil or not.

At least for the bill of rights, constitutional rights belong to "the people" or anyone who happens to be interacting with the state or the courts. You don't have to be a citizen to earn your rights, you get them just for being human.

The bill of rights limits the government's power to exercise its authority over humans. There's some exception when the state interacts with foreigners on foreign soil, mostly because the government doesn't technically have any authority or jurisdiction in that space. eg, "extraordinary rendition" is basically kidnapping and CIA operatives have prosecuted for it.

Re:Encryption

[tburkhol]

In the UK they can detain you for hours on a whim.

Hours, you say... Whole hours and more than one of them? What a terrible inconvenience: that would probably go right through tea.

The US, outside of border crossings, can generally detain people for 2 days without specifying charges, although any detention without charges carries risk of civil retribution. If you decline to provide encryption keys, you may be held for months Not proven for years, yet, but 'contempt of court' is generally used to lock people up until they do what the judge asks (current record is 14 years). I see no reason why they wouldn't hold border-crossers, already subject to substantial rights exceptions, in just the same way. Contempt of court requires a judge's order, so ICE would have to go to a judge (presumably FISA) and explain why decrypting that specific device is an interest of justice/security, but I don't think anyone believes that would be very difficult.

Re:Encryption

[MitchDev]

America ceased being the land of free a long time ago, we're only just now noticing the tightening noose around our necks. ANd before the retards start screaming "If'n you don't love 'muricuh, leave!" The other countries aren't any better...

Re: Encryption

[MitchDev]

Assuming they return your laptop at all, "national security" and what not.

Re:Encryption

[UnknownSoldier]

Sadly, Americans have become a bunch of pussies. /Oblg. Hey who won the latest sports game? ...

Re:Encryption

[kheldan]

Here's a better idea: Travelling outside the country? Get a pre-paid 'burner' phone, and leave your regular phone at home. They take it from you for a while then return it? Tell 'em "I don't want it back, you can keep it now" and walk away. They don't touch it? Keep it for the next trip. Either way your data and privacy are safe.

Re:Encryption

[lsatenstein]

What if you mail the phone back to you from the departure airport? Does HS still have juridiction? Your phone might arrive before you do!!!

Re:Encryption

[HiThere]

There are many reasons why people put up with unduly invasive governments. A revolution is extremely destructive, and you're likely to get in an even worse gang.

It's also true that the US is, essentially, a "water empire". If the government really dislikes your area they can cut off the water. (This is less true east of the Mississippi.) Cutting off the water is as easy as cutting off the electricity, which they can also do. If they, or anyone, were to do that there would be massive deaths within weeks. It's estimated that the average city contains enough food to feed it's citizens for 48 hours. After that people start getting hungry. The population is largely urban and possibly half of them have never seen even a tomato plant.

What *could* happen is internal terrorism...preferably aimed at the oppressors. One can view the recent sniping at police as an example of this starting up...but it's happened before and not gone anywhere. A violent revolution would be much worse for almost everyone, and the people in power are usually of quite limited access...so it's not likely to happen.

FWIW, I think that if anyone were serious about violent revolution they should start killing the tax collectors. A lot of people who wouldn't sensibly support such an act would cheer. In Van Voght's "The Weapon Shops of Isher" the weapon makers had a rule that they could never act directly against the imperial family. This reflects an awareness of social interactions that many people don't possess. A very large number of people identify with the ruler, so to threaten him (or her) is seen as a threat to themselves. Even police, as representatives of power, are unreasonably protected by this attitude. And it may be one of the foundations of "the blue line".

Re: Encryption

[HiThere]

But your device wouldn't have anything encrypted on it. It would log-on flawlessly, and there wouldn't be anything special on it or about it...whenever you were at the border checkpoint. That's the point of the proposed approach.

It does require that you have a drop-box you can trust to store encrypted data...but the drop-box is out on the internet, probably an ftp server. And it doesn't have the keys to decrypt. It also requires that you actually be able to delete files on your computer...unless you're willing to do a fresh install from a live CD frequently.

Re:Encryption

[Agripa]

No, better to give them something to do and if you not travel with your phone, they will consider that suspicious anyway. Might as well fuck them openly with encryption.

Re:Encryption

[Agripa]

Carry a bunch of extra storage devices filled with random data. It is not your fault they are wasting their time.

Re:Encryption

[Agripa]

Cite? If they can seize property, why can't they compel decryption? The whole basis of their argument (accepted by the courts) is that the constitution doesn't apply at the border.

Compelling decryption is ambiguous because of the testimonial nature of requiring someone to reveal a password or knowledge of a password and protection from the 5th amendment. There is no restriction on decrypting seized data if they can.

As a practical manner, enforcing this would also require proof that the subject knows the password and there are ways for the subject to prevent this. People sometimes joke about self destructing passwords because state can always be restored but with careful planning by somebody who wants to retain their privacy, this can be defeated.

The endgame for this is government restrictions on encryption which require key escrow or recovery. Criminals of course will be exempt.

Re:Encryption

[Agripa]

Why give any explanation? They do not have to explain anything to you.

Ask if you are free to go. Ask if you are under arrest. Then identify yourself and assert your 4th, 5th, and 6th amendment rights.

Warrior under foot of enemy give name, standing, and number, and not else.

Re:Encryption

[erapert]

What kind of job do you have that warrants this kind of fastidiousness with your phones?

Re:Encryption

[jwhitener]

No, but they can deny you entry if you don't cooperate. And some countries can seize your devices if you refuse to log into them.

Re:Encryption

[Martin Blank]

It doesn't really matter. I'd do that with any job.

But for the current job, it means when I'm on vacation, out at dinner, or just don't want to be bothered by work, I can silence or turn off the work phone and not be bothered by customers, who have fallback contacts if I'm not available. At previous jobs, MDM was required for any phone connecting to the corporate network, and there is no way that I'm giving control of my phone over to someone at corporate, especially since I had no trust that I would have a job from day to day. (Not concerning my performance, but random cuts happened for little apparent reason because the company couldn't hit its stated profit goals, targeting some very good people.) I really didn't want my personal phone wiped either intentionally or accidentally by corporate, not to mention the possibility of reading it.

100-mile zone

[Anonymous Coward]

Agents can operate within a 100 mile zone of the border. (Most of the country)
https://www.aclu.org/constitution-100-mile-border-zone

Re:100-mile zone

[schwit1]

I don't see a border exception in this 2015 case.

Re:100-mile zone

[Anonymous Coward]

It gets worse. The government has recently been circulating the idea that every airport in the country is an international border because technically, a little Cessna 172 or Piper Cherokee that departs from Canada or Mexico could potentially land there. You'll find this includes everything right down to untowered strips in podunk towns. Thus the Constitution-Free Zone would extend outward in a 100 mile radius from every airport "capable of serving international traffic." That covers almost the entire US, barring a few exceptions in sparsely populated states like Nebraska where you might find a spot that has no airstrips within 100 miles.

When defined this way, for all intents and purposes, the whole US population lives within the Constitution-Free Zone.

Re:100-mile zone

[ShaunC]

And? The government must follow the constitution regardless of how far away from the border they are.
Even if you are at the North Pole the government isn't allowed to violate the constitution.

Yes, and thank heavens they're so diligent about adhering to the rules. The NSA doesn't conduct warrantless wiretapping on a massive scale; the FBI doesn't use stingrays or plant malware on peoples' computers; police and corrections officers don't execute people without due process. Such a very effective piece of paper that Constitution has turned out to be.

Re:100-mile zone

[stealth_finger]

http://www.activistpost.com/wp-content/uploads/2015/06/constitutionfreezonemap1.jpg How the fuck is this "most of the country"?

Click your own link. Read the bit of text at the bottom and try to figure it out for yourself. Also extend a 200 mile diameter bubble around every airport.

Re:100-mile zone

[Audguy]

most of the population of the united states.

Other news articles say the DHS 'tried' to take

[schwit1]

https://reason.com/blog/2016/0...
http://money.cnn.com/2016/07/2...

Easy

[Anonymous Coward]

"I have no idea why they wanted my phones..."

They didn't want the phones, they wanted to exercise power over you. They're low paid, in shitty jobs and hated for it. Acts like this are about all they can look forwards to.

Re:Easy

[Strider-]

Actually, the most likely thing they wanted to do was swab it for drugs. My sister was a Canadian border guard, and if they had any suspicion that you might be carrying drugs or similar, they'd take an item of yours (ID, phone, etc...) into the back room and swab it to check for the presence of an elevated amount of narcotics. If they found it, that would cause them to do a more thorough search.

Re:Easy

[Calydor]

I suppose if that's the goal your phone is a good target, seeing as it comes in regular contact with both your hands and your face (in case you snort the stuff).

Re:Easy

[konohitowa]

Stop with the reasonable discussion already. You're ruining a perfectly good hate fest.

Re:Easy

[houghi]

Back room? Where I went, they just take a swipe of your hand when you stand at the scanner. They do the same with lugage if they so desire. No need to separate me from my phone or from my wallet or whatever they want to swipe.

Because that could lead to the fact that I would say they planted it. A lot easier to use proof if that is off the table.

And as far as I can tell in Brussels they do it pretty random. I have been swiped and not been swiped. Similar clothing and also I have see old people seen swiped as well as not seen swiped. Same for people of other ethnicities. I have not seen any trigger or light or counter, so perhaps they just check every Xth person.

Snowden leaks

[Anonymous Coward]

One of the Snowden leaks revealed that when you hand over your phone at 5-eyes embassies and borders, they use the opportunity to install software bugs on the phone. I imagine its the same at the USA border.

DHS seems to be ignoring the Jae Shik Kim case, where they seized his laptop at the border and cloned it to go fishing. He sued and the court blocked it.

But I don't think gathering *visible* evidence was the game here, since she's a journalist. More likely it would be the NSA bugging route.

Not just at the border...

[QuietLagoon]

... but the ability for the Homeland Security Border Agents to do stuff extends to 100 miles from the border, in addition to the border crossings.

.
The Constitution in the 100-Mile Border Zone

Re:Not just at the border...

[swb]

I love those armed checkpoints many miles from the border in Arizona.

Ironically, the last time I had to go through one I was the passenger in a car with Arizona plates. I'm 50, the driver was 65, both of us are Caucasian men. We had to answer a bunch of questions and were there for 2-3 minutes. The driver lives in Bisbee and has to pass through either the checkpoint in Tombstone or Sierra Vista to go anywhere north (Benson, Tuscon, etc), and so is through the checkpoints all the time.

The car in front of us had *Mexican* plates and 2 passengers. I don't think they were stopped for more than 10 seconds.

That's just fucking great. Two American Citizens NOT crossing a border in a vehicle with in-state plates spend more time answering Border Patrol questions than three likely foreign nationals in a vehicle with foreign license plates. Tell me what this system is about again?

Re:Not just at the border...

[LynnwoodRooster]

Well, you don't want the Government to act racist towards the folks in the car in front of you, do you?

Re:Not just at the border...

[swb]

No, but I guess I had this idea that there would be more BORDER PATROL scrutiny of a vehicle WITH FOREIGN LICENSE PLATES.

It's not racist when the license plate says "Package may contain non-US content."

Re:Not just at the border...

[PrimaryConsult]

What's even sillier is the one in NY.... I87 / US 9 have one in the middle of Adirondack park, 90 miles from the border... basically there's no way you're getting around that without adding a massive amount of time to the trip. It's also only there randomly, presumably to tempt anyone interesting into taking the direct route. But seriously what are they worried Canadians are going to do, bring us decent healthcare? Make us speak French? Kill us with delicious poutine? Most of the people on the road are just Plattsburgh residents trying to get the hell out of there and to somewhere interesting...

Re:Not just at the border...

[kencurry]

We have the same in San Diego - a border check on 5 fwy 40 miles from the border. It's the only direct way to get to Orange County from SD & I drive through it every day. I am baffled as to why we cannot keep the border checks at the border. Over the years I have missed several meetings because the delay goes to maybe 30 minutes or so. For every illegal they catch and throw back, there must be 100's of hours productivity lost to local businesses because of workers stuck on the 5 freeway.

In a flat world where you have to compete with all countries, I just don't get why any politicians see this as beneficial use of resources (keep in mind US trillion dollar federal deficit.)

Re:Not just at the border...

[l0n3s0m3phr34k]

We're trying to stop the illegal, evil, and insidious Canadian syrup cartels. Their sugary maple death liquid is destroying American cities.

Re:Not just at the border...

[Solandri]

We have the same in San Diego - a border check on 5 fwy 40 miles from the border. It's the only direct way to get to Orange County from SD & I drive through it every day. I am baffled as to why we cannot keep the border checks at the border.

Because there are lots of other places along the border where foreigners can slip in illegally than at border checkpoints. The 5 freeway is the major thoroughfare from San Diego to Los Angeles, and unlike at the Mexican border you cannot drive willy-nilly around it through the desert (Camp Pendleton Marine Corp base blocks you). So pretty much anyone entering the country illegally who wants to go head straight to Los Angeles is funneled into I-5. (The alternate route is I-15.)

I think Trump's border wall with Mexico is a stupid idea, but that's exactly what you need if you want to eliminate these sorts of checkpoints away from the border. (Unless you're willing to just throw your hands up and give up control of immigration.)

Re:Not just at the border...

[Anonymous Coward]

Go back to 4chan little boy. The grown ups are talking.

Re:Not just at the border...

[majid_aldo]

package is already in the US! you should argue for the abolish of these check points, not "hey i look "american", so don't bother me"!!

Re:Not just at the border...

[legojenn]

About ten years ago, I remember passing through a temporary checkpoint with my dog on NY highway 30 just north of Tupper Lake on our way camping at Old Forge. I'm Canadian. My car has a Quebec licence plate. They waved me through like it was a construction site. I wonder what they were looking for if they didn't want to talk to a non-American.

Re:Not just at the border...

[swb]

I've noticed there are quite a few cameras trained at cars in the Arizona checkpoints I've been through. I wonder if they have some kind of collation system that's able to identify cars via license plate readers who have been through an actual border crossing and then compare the occupants from high resolution cameras trained at the passenger compartments.

In theory, foreign cars that have already cleared the actual border and seem to contain the same occupants would be ones you would possibly want to reduce scrutiny on since you've already checked their IDs and vehicle at the actual border, possibly adding some kind of reasonable time window for the car to have been driven from the border to the inland checkpoint.

That way, if you crossed into the US, did the entry-to-the-US thing at the border you would be of less interest at an inland checkpoint and can be waved through faster, cutting crossing delays at the inland checkpoints.

Passcode?

[Brian Kendig]

What good would having the phone do, unless it's unlocked? Can they require you to use touch ID, enter your passcode, or tell them your passcode?

Re:Passcode?

[theNetImp]

Court ruled that they can't force you to give over the passcode, but the same court ruled they could force you to unlock it if it's locked by biometrics.

Re:Passcode?

[phayes]

Which is why if you worry about "the evil government you" turn it off before the border as iOS refuses to unlock with SecureID after a reboot. If you're using an old iPhone or an android leave it at home as they are essentially insecure.

Re:Passcode?

[Applehu Akbar]

What good would having the phone do, unless it's unlocked? Can they require you to use touch ID, enter your passcode, or tell them your passcode?

No, they cannot require you to unlock it, because that would be self-incrimination. The San Bernardino rule applies: if they physically have your phone they can try to decrypt it.

Re:Passcode?

[I75BJC]

US Courts have ruled that LEOs can require/force one to use their fingerprint to unlock a phone. US Courts have ruled that LEOs CanNot require/force one to release their password or passcode.

Re:Passcode?

[PPH]

None of this matters. If you are going through the border, they can refuse you entry if you don't comply.

Re:Passcode?

[Strider-]

What good would having the phone do, unless it's unlocked?

Depends on what they wanted it for. The more likely thing is they took it back and swabbed it for drugs. The phone was just a frequently handled item that would likely contain narcotics residue if it was being handled by someone who was running drugs or similar. The phone doesn't need to be unlocked to swab it.

Re:Passcode?

[Strider-]

If you are going through the border, they can refuse you entry if you don't comply.

They can only refuse you entry if you are not a citizen. To the best of my knowledge, all civilized countries, including the US, have an absolute right of return. If you are a citizen of that country, you can not be denied entry into it. They can deny your stuff, and make your life miserable, but they can not refuse to let you in.

Re:Passcode?

[stephanruby]

For one thing, having access to the sim card means they can clone it. Also, it sounds like she had multiple phones, so it's likely she used a cheap burner phone when she was abroad instead of using her main one.

Re:Passcode?

[friedmud]

Why take it "away" then? I don't have any problem with them swabbing my phone for drug residue... just do it in front of me.

They already do this at the airport with the "explosive" residue wand/swab thing. No problem with them using it there... and I wouldn't mind it at the border either.

I just don't want to lose physical control over my device...

Re: They don't have to let you in

[Anonymous Coward]

Nope, try again, A US Citizen has an absolute right to re-enter the US. Lyttle v US, Fikre v FBI, and other cases uphold this. They can detain you, they can make life difficult, but if you're a US citizen, they *cannot* send you back.

Surprise?

[worf_mo]

They can fondle people's privates at will, compel old nannies to undress, publicly embarrass ladies with sex toys. I'd say at this point it is reasonable to assume the can do anything they please. Which includes seizing your phone/laptop/socks.

Re:Don't take anything electronic into the USA

[Anonymous Coward]

Americans, why are you putting up with this? By passively accepting these acts, you are letting your government slowly turn your once-great nation into a totalitarian police state. It brings to mind the speech from V For Vendetta:

"I know why you did it. I know you were afraid. Who wouldn't be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the high chancellors, Clinton, Bush, and Obama. They promised you order, they promised you peace, and all they demanded in return was your silent, obedient consent."

Re:Other news articles say the DHS 'tried' to take

[Vlad_the_Inhaler]

I seem to remember this was introduced in the aftermath of 9/11 and am surprised that people have widely forgotten about it. Luckily that 100-miles-from-the-border applies within the U.S., I was in southern BC recently and probably less than 5 miles from the U.S.

Re:Other news articles say the DHS 'tried' to take

[Applehu Akbar]

https://reason.com/blog/2016/0...
http://money.cnn.com/2016/07/2...

Yes, she was able to keep her phones. Sometimes the DYKWIA superpower can be used for good, not evil.

Re:They don't have to let you in

[nedlohs]

Only if you aren't a citizen (which is a whole bunch of people of course).

Article doesn't mention racial profiling.

[timrod]

One thing the summary doesn't mention is that the reporter who was detained is probably non-white: her name is Maria Abi-Habib and she covers the middle east for the Wall Street Journal. In the Facebook post, she says she goes by Maria Theresa. She's apparently non-muslim, but probably looks close enough to a middle easterner that racial profiling kicked in.

Re:Article doesn't mention racial profiling.

[stealth_finger]

She's apparently non-muslim, but probably looks close enough to a middle easterner that racial profiling kicked in.

Slightly tanned?

Haven't we learned yet?

[JohnFen]

The DHS has made it abundantly clear for years now that nobody should fly with anything that they can't afford to lose. Ship your phone and other critical things ahead via parcel service. If you must have a phone during your trip, get a burner just for that purpose.

Re:Haven't we learned yet?

[wbr1]

Ah yes, learning to bend over. I hope you own stock in Astroglide corp.

Re:Haven't we learned yet?

[WorBlux]

International shipping goes though customs, where they definitely may open any package they want too. Letting the devices out of your physical control gives adversaries but more opportunity to compromise or analyze the device.

Re:Haven't we learned yet?

[Rick Zeman]

Yep. Burners are your friend.

A journalist does not know what is going on?

[Ecuador]

A journalist (of the WSJ no less) has no idea what is going on in their country? That's what was the most surprising to me. I mean, I knew about the 100-mile border rule and I am neither a journalist, nor a US citizen. I thought the US journalists are in on it with the government by not drawing attention to the slowly eroding US constitutional rights, but in this case it is not some conspiracy, the journalist is an idiot. Where idiot here is also used in the original meaning from the ancient greek (no unicode to list it here) which was referred to people who were not interested in the affairs of the State.
If a journalist whose job is to know stuff exactly like this, is surprised to find something like that out, what hope do the people in the US realize that they have let them take away their rights one by one?

Re:A journalist does not know what is going on?

[Nyder]

A journalist (of the WSJ no less) has no idea what is going on in their country? That's what was the most surprising to me. I mean, I knew about the 100-mile border rule and I am neither a journalist, nor a US citizen. I thought the US journalists are in on it with the government by not drawing attention to the slowly eroding US constitutional rights, but in this case it is not some conspiracy, the journalist is an idiot. Where idiot here is also used in the original meaning from the ancient greek (no unicode to list it here) which was referred to people who were not interested in the affairs of the State.
If a journalist whose job is to know stuff exactly like this, is surprised to find something like that out, what hope do the people in the US realize that they have let them take away their rights one by one?

Pretty sure most journalists these days just forward stories written by the powers that be. Doesn't require thinking for yourself, or doing anything other then selling your morals.

Re:A journalist does not know what is going on?

[Krokus]

Pretty sure most journalists these days just forward stories written by the powers that be. Doesn't require thinking for yourself, or doing anything other then selling your morals.

Don't forget giving it a provocative headline that ends in a question mark.

Re:A journalist does not know what is going on?

[dbIII]

A journalist (of the WSJ no less) has no idea what is going on in their country?

The readers may not, hence the story.
Also knowing in general doesn't mean knowing the details like having the phone being taken away to be cloned/bugged/address book checked or whatever it was taken away for. That's a detail I didn't expect. Did you already know about that detail? If not, why so critical?

Re:A journalist does not know what is going on?

[sudon't]

A journalist (of the WSJ no less) has no idea what is going on in their country?

Journalists ain't what they used to be. It used to be a working-class gig, but now it's been given over to college-educated, middle-class people, who get there with the experience of the world you'd expect. I mean, look at the kind of reporting you get when the topic is recreational drugs. Don't get me wrong. There are still good reporters. They're just fewer and further between.
You're absolutely right - this is old news. But, I have to admit, I really enjoy the outrage of middle-class people when they get the same treatment from law enforcement as the rest of us for the first time! I forget which NPR show it was, but one of their producers got the special treatment at the US/Canadian border, and, for me, who used to cross that border quite often, and spent many an hour as their guest, it made for a most enjoyable podcast.

Wouldn't work

[Anonymous Coward]

No, they'd just bug her SIM card, and it would grab all her contacts the next time she switches on the phone.

https://www.schneier.com/blog/archives/2014/02/gopherset_nsa_e.html

(TS//SI//REL) GOPHERSET is a software implant for GSM (Global System for Mobile communication) subscriber identity module (SIM) cards. This implant pulls Phonebook, SMS, and call log information from a target handset and exfiltrates it to a user-defined phone number via short message service (SMS).

(TS//SI//REL) Modern SIM cards (Phase 2+) have an application program interface known as the SIM Toolkit (STK). The STK has a suite of proactive commands that allow the SIM card to issue commands and make requests to the handset. GOPHERSET uses STK commands to retrieve the requested information and to exfiltrate data via SMS. After the GOPHERSET file is compiled, the program is loaded onto the SIM card using either a Universal Serial Bus (USB) smartcard reader or via over-the-air provisioning. In both cases, keys to the card may be required to install the application depending on the service provider's security configuration.

************

The SIM card keys keys they stole 2 billion of them from Gemalto, the SIM card manufacturer, by hacking their network and tracking their employees. If it's a USA phone, they would just ask AT&T or Sprint to give them the SIM card key, US telcos have immunity for helping the NSA, regardless of the laws.

Re: Wouldn't work

[BlytheBowman]

Would you even want the phone anymore after the gov't took it in a back room ans did god-knows-what with it? I would chuck it and get it replaced if for no other reason that the gov't put their filthy hands on it and looking at it would continue to remind me of how bad they violated me (or maybe thats a good reason to keep it? :S

Doesn't pass the sniff test

[BenJeremy]

When she complains that "she doesn't fit the profile" but she's a journalist traveling from the middle east?

Sorry, something doesn't smell right with her story. I suspect there was some reason border agents detained and hassled her, though I do believe they regularly overstep their bounds in other cases.

That said, the powers our border agents and TSA have are truly frightening, nonetheless. I live in the 100 mile zone where agents could storm my house and seize all of my electronic devices "just because". They don't use this power, except in exceptional cases, but when the dam breaks and they start doing this, it will become more commonplace until they start doing it on behalf of corporations to protect "intellectual property" and use it to censor journalists.

Re: Doesn't pass the sniff test

[reanjr]

If you think journalists visiting the Middle East fit a profile, you're part of the problem.

Re: Doesn't pass the sniff test

[BenJeremy]

I think the border agents would feel she fits a profile, and the journalist's denial of this seems a bit disingenuous.

Note that I didn't say it was right, just that I find what she said a bit illogical (in the face of border agent's desire to search her) and perhaps indicative that there is more to this story than she is letting on.

US Govt *always* had right to search at border

[drnb]

Nope, try again, A US Citizen has an absolute right to re-enter the US. Lyttle v US, Fikre v FBI, and other cases uphold this. They can detain you, they can make life difficult, but if you're a US citizen, they *cannot* send you back.

And the government has a right to search your person and your property as part of a U.S. Customs inspection. Its been that way since the founding days of our republic. There is no right to privacy in your person and property when crossing the border. You may be able to cross but your property will not if Customs want to search it. The only argument one may be able to make is that the TSA agent was not "deputized" and an ICE agent.

Re: Other news articles say the DHS 'tried' to tak

[orlanz]

Article quote:

The policy was set in 2013 when DHS reviewed its own powers and concluded that its agents were clear to search at will.
"Imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits," it wrote.

Wow... "Police work is too hard so we will skip that and jail those we feel are guilty."

These are the types of idiots who run the US defense system. Game over. If they aren't smart enough to understand what is totally wrong with that, I doubt how effective their protection is. I guess its racketeering protection...

I guess the US has just been getting lucky.. We just haven't had enough people hate is... Yet.

A cheap chrome book to check email etc

[drnb]

Same goes for your computers and any hard drives or usb sticks.

I bring a cheap chrome book to check email, browse the web, etc. My chrome book is much cheaper than an iPad. I don't need to bring my dev laptop if that's all I'm going to do with it. When traveling on business internationally I bring my older dev laptop, its slower but if lost its not that much of a loss.

I do Android development so a Samsung a generation or two behind is always available since I have those for testing and if lost they are easily replaced. Just need a local SIM card upon arrival.

oh yes?

[bagofbeans]

Do divulge the details ... you clear have something more to tell here :)

Re: borders are a rights no-man's land

[JaiWing]

no, it wouldn't, you can tear up paper money, or drill holes in metal money.

Wrong case for 4th amend, Customs can search

[drnb]

Exactly this. In this era of a complete disregard for the 4th amendment ...

I agree there is disregard for the 4th amendment but this is NOT the case to argue that. US Customs has *always* been allowed to search your person and property at a border crossing since the founding days of our republic. What may be arguable in this case is that a TSA agent did the search not a Customs agent. Of course "deputizing" TSA as customs agents would close that loophole.

Is there any government on earth that does not have the right to search the person and property of an international traveler when they cross the border? Note "international traveler", within the EU you are no longer an international traveler, but when originally entering the EU from outside you were.

And by at the border I am referring to at the border, not 100 miles inside. That is a different situation IMO.

Re:Wrong case for 4th amend, Customs can search

[Anonymous Coward]

The problem is the border patrol agents are allowing foreign citizens to enter the county at will, while harassing and intimidating the USAian citizens. Drugs can come in freely, but if you have dog food re-entering the USA from Canada without the appropriate documentation and certification, they will hold you up against the wall and ass rape you. The border patrol agents do not patrol the border to protect it. They patrol it to harass, intimidate, and demand fees of the citizens of the USA. It is easier to leave the country than to reenter it. I am wondering if maybe the thing to do is just stay away from the 3rd world hell hole that the USA has become under President Obama.

Just my 2 pennies.

Re:Wrong case for 4th amend, Customs can search

[Anonymous Coward]

I agree there is disregard for the 4th amendment but this is NOT the case to argue that. US Customs has *always* been allowed to search your person and property at a border crossing since the founding days of our republic.

That's actually a misunderstanding of a fundamental characteristic of US law.

The law authorizing search was passed by Congress PRIOR to the Bill of Rights and was NEVER compliant with the Bill of Rights. It was not complaint when it was written, and it has never been brought into compliance.

Further, some of the current policies can never be brought into compliance with the Bill of Rights: rights such as the right to privacy arise under the 9th Amendment (rights retained by the people) and the 10th Amendment (rights reserved to the people).

As the Bill of Rights is the highest law in the land, it supersedes all lessor law, including Acts of Congress written prior to the Bill of Rights. This is called "Hierarchy of Law". There IS a right to privacy at borders, and the government can NOT take that away.

All rights have limits, however, and so long as the policies are clearly spelled out, and the government can prove beyond a reasonable doubt that the public approves of particular reasonable limitations - and the policies involved don't represent discrimination or otherwise violate minority rights - then the policies implementing those limitations can be implemented (provided it is done in a reasonable manner).

Since none of this has been done, it follows that the current policies are illegal, and federal officers enforcing those policies are in violation of their oaths to uphold the Bill of Rights.

Certainly in this particular case the government broke the law: if they needed access to the phone, they needed to prove that before a judge, they needed to get a warrant, and the evidence leading to that warrant needs to be subject to long term public oversight (as a consequence of the 9th Amendment right to long term oversight over government and the practice of law).

It's not as if a phone can conceal a nuclear weapon, or something like that where the public would clearly approve of a search. No reasonable limitations to the right to privacy apply in this case.

The assumption that the Bill of Rights can be generally violated at borders represents an ongoing failure of professional integrity on the part of the US legal profession. Members of the legal profession working as judges, or in Congress, or as Presidents, or in various federal agencies - who certainly have the education to understand the basic issues here - should have fixed this long ago. Further, the Bar Associations should have made the point on their own initiative if government failed to do so.

Unfortunately, the lawyers like having screwed up laws, overly complex laws, even contradictory laws - it creates long term business for legal professionals. The technical term for this is "ethical conflict of interest", and it's the reason the US legal system is such a disaster. Typically it takes a long time, and massive public effort (on the order of the Civil War, or at least the 1960's Civil Rights Movement) to correct the kinds of ethics problems that result from systematic failures of legal ethics.

By definition, rights retained by the people can not be taken away by ANY entity of government, and that includes the US Supreme Court. That court is only Supreme over other federal courts, NOT over rights Retained by or Reserved to The People - indeed any precedent to the contrary represents a violation of the oaths to uphold the Bill of Rights that the judges swore as preconditions to holding that office, as well as unethical practice of law, and hence a violation of the Constitutional requirement of "good behavior".

In other words, no court ruling can authorize illegal conduct by government officials. The lawyers are supposed to understand this, and there's a precedent from a place called Nuremberg that should help clarify their thinking.

Re:Wrong case for 4th amend, Customs can search

[golodh]

@Anonymous Coward

So disguise your dogfood as drugs and carry a foreign passport when you enter. Problem solved!

Re:Wrong case for 4th amend, Customs can search

[mapinguari]

The cited article is a little ambiguous. The author refers to a "DHS officer". At no point is "TSA" mentioned.
The DHS includes both the TSA and US Customs, so it may very well have been a customs agent doing the searching.
The photo in the article is of a US Customs document and refers to "CBP officers" (Customs & Border Protection).

Re: Wrong case for 4th amend, Customs can search

[tburkhol]

You post on slashdot and you don't know the difference between having a private email account and having a private email server?

Pretty sure he knows.

Are you posting on slashdot that you think a hotmail or yahoo account is more secure than hosting your own server?

Re: Wrong case for 4th amend, Customs can search

[Anonymous Cow Ward]

Powell used his less, and there's no evidence he sent or stored classified information on his private account. The rules were also different when he was SoS.

Troubling

[Locke2005]

What I find most troubling about this is that they demanded her phone, but then backed down when she insisted on getting WSJ lawyers involved. That implies that they were attempting to do something by intimidation that they were aware they had no legal right to force her to do. Is anyone else bothered by law enforcement using this tactic? I've heard of other cases, i.e. stopping people on the street and tellling them, "You need to show me what's in your bag" Well, according to the Fourth Amendment, no I don't, but probably most people assume law enforcement understands the law better than they do. Fact is, citizens are required to abide by thousands of laws, and ignorance is not an excuse. But if law enforcement doesn't apply the laws correctly, they can always claim ignorance of the law. Not really a reciprocal balance of rights, is it?

Re:Troubling

[fustakrakich]

They may have backed down, but only because she had WSJ lawyers, not some sleepy public defender. The law itself didn't come into play as much as public relations with a major newspaper

Re:Troubling

[HotNeedleOfInquiry]

An I troubled by this? No more than I'm troubled by the fact that the Dallas police stock 1lb bricks of C4 plastic explosive... Which is "a lot".

Re:Troubling

[prograsm]

I can't imagine a legitimate law enforcement use for that. That's substantial destructive capability, not defensive or constructive planning ahead.

Re:Troubling

[Locke2005]

Slightly different case. They didn't charge her because there was no INTENT to violate the law, not because she was ignorant of the law. Other secretaries of state have also set up their own email servers, which may have led her to believe it was legal to do so. I would have checked first, but I'm not really sure who you're supposed to ask about things like this. Also, not really sure her private email server was any less secure than the State Department's email server, but I would have kept State Department and private emails separate regardless.

Re:Troubling

[Locke2005]

The use they actually used it for sounds legitimate: somebody tells you "I have explosives!", you send in a robot with C4 to trigger the explosives when nobody else is around. I'm sure there are many other legitimate law enforcement uses of explosives (Fairly Honest Dan's Machine Gun Parlor used to specialize in providing explosives to law enforcement), but not being in law enforcement myself, I can't think of them all.

Don't travel to US.

[stooo]

The US government doesn't want us going to this crazy country, and get some tourist and travel economy going.
So we'll travel elsewhere.
Don't travel to US.

Re:Don't travel to US.

[CanadianMacFan]

That only works if you are a tourist. Not if you are coming back to the US from visiting somewhere else. They can stop US citizens and take their stuff too.

Re:Don't travel to US.

[david_bonn]

... except for the fact that I have had similar experiences in Canada, the UK, and Switzerland. With both laptops and smartphones.

So now I travel with a burner phone and an old netbook. No big loss if they are confiscated.

Re:Don't travel to US.

[ffkom]

That's exactly what I do. I travel a lot to vacations in foreign countries, and almost without exception, I felt welcome. Having traveled a few times to the US for business reasons told me to never, ever go there voluntarily. Not even for transit.

Re:Don't travel to US.

[AHuxley]

+1 for "So now I travel with a burner phone and an old netbook. No big loss if they are confiscated."
In different nations passwords will be "requested", email, web 2.0 accounts can be requested to be looked at, searched.
Make sure any device is new with only work related software, work contacts, apps, docs or have new hardware just for been looked at.
In the many hours waiting for an interview expect a duplicator to be used and deep search of the hardware:
All contacts will be kept, facial recognition on any images, any gps data extracted, comparison of all files found to domestic and international databases, the drive will be scanned for accounts and contacts, passwords, any OS kept web use, quality data recovery software will look for any removed data, detection of any hidden encrypted volumes.

Re:Don't travel to US.

[AHuxley]

Yes AC, thats a great idea, travel thin server :) The other risk is that the demand for email accounts, social media access is expanded to a request to access any work or private cloud service used.

Re:Don't travel to US.

[0111 1110]

Yes well the biggest difference is the immigration and customs people in the US are generally assholes. The ones in other countries are generally not assholes. This makes a big difference in practice.

Usually the immigration people in other countries are just normal people doing a job and they are not there to cause anyone trouble or pain. Unfortunately law enforcement and really any job with authority over people tends to attract the worst of American society. Sadists and bullies who truly enjoy humiliating and hurting people.

It is too bad that my country treats all who try to enter as either criminals or terrorists by default, but remember that we are basically a giant prison camp in a way with the largest percentage of imprisoned of any country except China.

Re:Don't travel to US.

[prograsm]

This is why the US didn't get the Olympics when Chicago was bidding. The Olympic Committee apparently had an unpleasant time at the airport, I guess some of them weren't interested in amateur pelvic exams.

Land of the Freee eeeeee eeee eeee

[roman_mir]

Home of the DHS.

I keep saying this over and over and over

[mikein08]

When you leave the country and intend to return, do NOT take with you any computerized device which has on it any confidential or irreplaceable information. This includes phones, tablets, laptops. If you just cannot live without these devices while out of the country, buy and take with you ones which you do not care about losing. I know, I know, how are you going to amuse yourself without your phone. You could try reading a printed book.

Re:Don't take anything electronic into the USA

[myowntrueself]

Americans, why are you putting up with this? By passively accepting these acts, you are letting your government slowly turn your once-great nation into a totalitarian police state. It brings to mind the speech from V For Vendetta:

"I know why you did it. I know you were afraid. Who wouldn't be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the high chancellors, Clinton, Bush, and Obama. They promised you order, they promised you peace, and all they demanded in return was your silent, obedient consent."

Why do you think there are Libertarians in North America and practically nowhere else?

Re: They don't have to let you in

[myowntrueself]

Nope, try again, A US Citizen has an absolute right to re-enter the US. Lyttle v US, Fikre v FBI, and other cases uphold this. They can detain you, they can make life difficult, but if you're a US citizen, they *cannot* send you back.

Can't they send the US citizen to another part of the world that is under US jurisdiction, like Guantanamo bay? Or some military facility? That way you have been allowed to re-enter the US, just a part of the US where they can then control your movements.

I almost feel bad about this

[fustakrakich]

But the truth is that despite our noisy minority, the majority of people are for this, and they actually want more. He who shall not be named will be putting up guard towers to satisfy the raging mob. Things are getting darker, not lighter. The feeble resistance will not be noticed.

Re:Push all data to your own private cloud

[Resol]

A good idea, but sometimes you want to access information when there is either poor or even no connectivity. Having the device sync with your own server is the way to go, but there needs to be a mechanism to erase the device quickly, and then restore later. I suppose that opens up the possibility that a comprehensive wipe could take too long (e.g. that the the people forcing you to open your device to them could somehow stop the wipe before it completes). Additionally, with devices carrying tens (if not hundreds) of GBs of storage, an over-the-air restore could be extremely painful. Maybe a multi-stage restore mechanism, where a smaller set of key data can be restored quickly (contacts, calendars, notes) while larger data (photos/videos, music, games, files, applications) can be either trickled in or held off until the device is connected to higher speed/lower cost network. I've also been thinking it would be good to build a virtual RAID out of cloud services. Say you have three services -- configure them such that exposure to any single service doesn't expose your data ... you need to have at least two of three services to re-assemble your data. So even if someone confiscates your server, you don't lose data and they don't gain access to the data - I'd still encrypt the "chunks" or "slices", but this would add redundancy and reliability

It's an election year.

[XB-70]

While it's crucial to be able to ensure that travelers are not terrorists, felons, illegal aliens or drug smugglers, it's also crucial to have a right to a fair hearing.

In the last two decades, real freedoms have evaporated and no one is doing anything about it.

Why is no one fighting for this egregious breach of personal freedoms?

Why is this not on the political agenda?

Message your elected representative and tell them to restore the freedoms we once had.

Unlikely

[ffkom]

I have had equipment of mine swab-tested for residues of drugs or explosives on many borders, but that always happened quite openly, in my presence, and of course without any need to switch on or operate the device. The application of some swab strip is definitely nothing requiring to take your device to somewhere beyond your sight, it's a matter of seconds.

So could we solve these problems

[rsilvergun]

By paying people better and treating them with respect? Kinda like we do with police, military and fire departments?

Border Search Exception

[SeattleLawGuy]

The First Congress obviously considered border searches reasonable because they authorized searching every room and every item of a ship for contraband. They (or a significant overlap) also wrote the Fourth Amendment, prohibiting "unreasonable" search and seizure. Thus under an originalist view and a traditional view, there is a very low expectation of privacy at the border, and Fourth Amendment rights are very small there.

They are not quite nonexistent. For example, I believe there was a case a little while ago saying that if they wanted to do a destructive search of your vehicle, they needed reasonable suspicion. RS is a very, very low standard, but it is a standard.

There is a more legitimate dispute about searching the contents of electronic devices. (Because it is more intrusive, since they can contain massive amounts of information about your life.) But regarding the border search exception generally, GP is correct that there has always been a strong border search exception to the Fourth Amendment warrant requirement. And since the rise of modern warfare, there's really been no legitimate argument against that. (Nations have an existential interest in controlling the movement of chemical, biological, or nuclear weapons.)

Re:Border Search Exception

[MitchDev]

"Searching" and "Seizing without due cause" are two TOTALLY different things....

Is *this* the "change we can believe in"?

[KenHansen]

Documents previously released under FOIA show that the DHS has a long-standing policy of warrantless (and even motiveless) seizures at the border, essentially removing any traveler's right to privacy.

Obama has been in the White House for over 7.5 years, if he didn't agree with this, he'd have stopped it by now - look how fast he 'solved' the transgender bathroom problem in every public school in the country, surely he could rein in DHS even quicker, if he wanted to... Guess he doesn't want to. Interesting.

How to escape being compelled to decrypt your data

[KWTm]

I mentioned this a few years ago and will mention it again. This is how to legitimately say that you can't decrypt your files, even though actually you can. If your laptop is seized and they want you to decrypt the TrueCrypt drive for them, do the following. (Yes, I know TrueCrypt is no longer supported; assume you're using the next-to-last version before they pulled it from the market.)

Agent: "What's this encrypted drive?"
You: "It's for work. It's confidential."
Agent: "Well, decrypt it, please. What's the password?"
You: "It's not just a password, it needs a keyfile."
Agent: "Well, type in the name of the keyfile."
You: "The keyfile's not on this computer. It's on a USB stick."
Agent: "Well, where's the USB stick?"
You: "I'm on vacation, so I didn't bring it with me." (Or, on a business trip: "I'm not working on that project at the moment, so I didn't bring it.")

And everything you say may even be true. So they can still seize your laptop, but good luck to them decrypting it.

However, the secret is this: the keyfile is actually a simple file that you can reproduce from memory. For example, on the actual USB stick, if you choose to actually make one, might be a 1 MB file with random data called "JohnSmith.key"; and also another file called "keyfile.ref", which contains the text "/mnt/media/usb/JohnSmith.key" (or "E:\JohnSmith.key" if more appropriate for your operating system). The secret is that the second file, the tiny one seeming to contain a string that points to the 1MB of gibberish, is itself the keyfile. You might even choose to keep this small file on your laptop drive itself.

In summary, two elements allow this scheme to work: your knowledge of which file is actually the key file, and the plausible denial of your possession of this file because it's supposed to be on detachable storage which you don't have with you.

Maybe if they see that they can't force you to supply a password, they won't "keep in you jail for a while."

Please help refine this by pointing out shortcomings of this scheme.

How to act tough and get locked up

[dbIII]

Maybe if they see that they can't force you to supply a password, they won't "keep in you jail for a while."

Wishful thinking.
Those days have passed and things are being run differently now.
Treat it like a third world military checkpoint where those you are facing have both sticky fingers and power of life and death over you with little consequence to themselves and it won't be all that far from reality.
If you don't want someone to see it or can't afford to lose the device it is on don't take it.
Do you really want to be locked up for so long that the business trip is meaningless, or even get deported, or the non-zero risk of being injured while being detained just to show how tough you are to a guard?
There is a long list of people being locked up for no reason, stuff being stolen and various other problems so the "it won't happen to me" factor reduces drastically once you go around deliberately acting in a way they see as suspicious.

Re:Don't take anything electronic into the USA

[dbIII]

Why do you think there are Libertarians in North America and practically nowhere else?

Because they call themselves anarchists elsewhere :)
Yes, I know, there are so many "isms" who like the word "Libertarian" that the word is effectively meaningless and people from anarchists to authoritarians who want the rich to rule like ancient Kings stick that label on themselves. It's a US label because the word "liberty" has been dumbed down to mean "good" and not anything that will stop you treating people that depend upon you as slaves.

Re: Don't take anything electronic into the USA

[dbIII]

They can't even comprehend our Republicans

You mean you can?
Explain The Donald. I'll even settle for explaining Cruz who seems to be something from beyond the far side of crazy.

It's rhetorical, I expect we'd need a long chain of people with slightly different mindsets to pass a message on or a head trauma specialist to get anything more precise than "they tell lies that sell".

Re: Don't take anything electronic into the USA

[stealth_finger]

Because they dont want no Bataclan, Nice beach, Munich mall etc shit there.... thats why...

Yeah? And how's that working out?

Re:A BLANK ATM CARD

[stealth_finger]

Fucking sweet!

Re:How many phones?

[stealth_finger]

I can't read the story.

uBlock Origin has prevented the following page from loading:

https://m.facebook.com/story.php...)

How many phones did she have? 2-3 is one thing. 50 is another thing entirely.

2 or 3, but she was also a woman, a journalist and coming from the middle east so I'm surprised she got out of there with as little hassle as she did. Probably because she told them to contact the wsj lawyers and they couldn't be dealing with anyone who actually knows the law so they let her go. I wonder if it ended up like that for the next one they pulled.

Always use a "clean" phone when travelling abroad

[cpghost]

It's worth repeating ad nauseam: when traveling abroad, always use a new clean phone, i.e. another phone with a new SIM card that is not linked to your Google and other accounts... It's not just the US that seizes or snoops on phones at its borders, foreign countries do so as well. Basically, once they got hold of your phone and take it out of your sight for a couple of minutes, you never know if it hasn't been copied, and bugged. And when you're back home, always assume the phone has been physically tampered with, and make sure to throw it away (or sell it e.g. on eBay to some poor unsuspecting buyer, fair warning would be nice though). Sorry, but that's the way it is.

Re:How to escape being compelled to decrypt your d

[tburkhol]

Maybe if they see that they can't force you to supply a password, they won't "keep in you jail for a while."
Please help refine this by pointing out shortcomings of this scheme.

You overestimate the stupidity of law enforcement. No one will believe you have data that you can not access or can not get access to.

You underestimate the patience of law enforcement. If they get to the point where they feel the need to compel you to divulge your encryption key, they'll get a court order. The current record for detention for refusing to comply with a court order is 14 years. Most people don't hold out that long. They start getting worried that their boss will fire them, or at least stop paying them, after a month or two. If you legitimately can't decrypt the data they want, then the court order is as good as a life sentence ("Life" sentences average about 8 years served).

Re:How to escape being compelled to decrypt your d

[cpghost]

Please help refine this by pointing out shortcomings of this scheme.

The shortcomings is that the encryption is visible to the average guard and unnecessarily raises eyebrows.

How about this (on Android)? You install two operating system images on the phone, say, two instances of CyanogenMod, one encrypted, and the other non-encrypted, and you setup the boot loader TWRP so that it usually boots the unencrypted one. So, if the unsuspecting guard boots the phone, he'll be able to login and see a perfectly regular OS. But if YOU want to access your confidential files, you reboot the phone into TWRP with the usual key combo, and then you boot into the encrypted instance of the OS. Added bonus: you modify TWRP so that it doesn't even display that encrypted OS in the list of available bootable partitions.

Shortcomings: forensics will show that there is an encrypted partition on the phone... if they ghosted it. But if it is just the guard booting up the phone and nosing around a little bit, you're pretty safe.

Re:You're either a Republican or a Foreigner....

[Curunir_wolf]

Thanks, Obama!

Re:Don't take anything electronic into the USA

[dcw3]

Because they call themselves anarchists elsewhere :)

Libertarianism is a far cry from anarchism. Please do some reading before posting such drivel.

20 digit password encryption, no button bar

[WillAffleckUW]

never leave any apps on your button bar. ever.

Re:Always use a "clean" phone when travelling abro

[WillAffleckUW]

This is a wise move. Best thing to do is buy a clean rental phone in a safe city/country in the region you're going to, and never use it for anything important. Never use public wi-fi. Never use "secure" wi-fi at any hotel, the Chinese and Russians and Saudis and Israelis will root it. Never leave any electronics out of sight. Ever.

Re: Don't take anything electronic into the USA

[dbIII]

Definitely, but The Donald wants to build a Wall Of Voodoo.

Re:Don't take anything electronic into the USA

[dbIII]

Please do some reading

So says the guy that didn't read sentence number two!
Hilarious!

Re:Shitpost

[stooo]

no.
You have the right to "import" some things.
Data is not "things".
You don't "import" data.