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Wyden To Introduce Bill To Prohibit Warrantless Phone Searches At Border (onthewire.io)
Trailrunner7 quotes a report from On the Wire: A senator from Oregon who has a long track record of involvement on security and privacy issues says he plans to introduce a bill soon that would prevent border agents from forcing Americans returning to the country to unlock their phones without a warrant. Sen. Ron Wyden said in a letter to the secretary of the Department of Homeland Security that he is concerned about reports that Customs and Border Patrol agents are pressuring returning Americans into handing over their phone PINs or using their fingerprints to unlock their phones. DHS Secretary John Kelly has said that he's considering the idea of asking visitors for the login data for their various social media accounts, information that typically would require a warrant to obtain. "Circumventing the normal protection for such private information is simply unacceptable," Wyden said in the letter, sent Monday. "There are well-established procedures governing how law enforcement agencies may obtain data from social media companies and email providers. The process typically requires that the government obtain a search warrant or other court order, and then ask the service provider to turn over the user's data."
My first question is why this has to be a bill, when through the normal course of judicial process such evidence would be tossed out by courts for being improperly obtained.
Then I remembered that in the area of national security and border / immigration enforcement, the executive branch has pushed their own discretion so far that Congress / courts really do have to put protections like this into law for it to be heeded. Basically they have been cut out of the loop of immigration and border enforcement as just bystanders, because the executive branch has all the guns, and it only comes to Congress/courts' attention when someone makes it in (and isn't kicked out immediately) and survives long enough to file a habeus petition.
The real check and balance needed would be for border agents and officials who abuse their authority to be penalized for it.
while completely ignoring any intrusion/violation of the rights of visitors.
Speaking as someone from another country (New Zealand) who has visited the US on several occasions (mostly social) I can tell you it has certainly become an issue.
Recently I was planning to attend an event in Las Vegas (hobby related). My first thought was to the invasive border security that is already in place but I though why not and decided to go anyway.
Others decided differently, in the end the event in Las Vegas was canceled because of the invasive border protection and we all went to Australia instead.
No, but they did have private documents.
But its not the same. In those days, when you travelled and crossed borders you had to more or less consciously give some attention to the documents you brought with you. Reams of paper get pretty heavy; and so it wasn't customary to have every document, photo, and piece of correspondence, you ever produced or received *on your person*.
Now you cross the border... and your phone or laptop; especially if its also linked to additional cloud storage accounts and social media etc... it literally has the potential to be a every document, photo, and piece of correspondence you have ever received; and we don't give it a 2nd thought ... we need our phones to make a few calls or receive emails and look at maps while travelling, and we don't think about just how much data we're carrying around with us until some belligerent TSA goon is demanding we hand over our phone and laptop passwords.
We're not deliberately carrying all our photos and email history and bank records and tax documents through customs because we want to transport them to another country... its just incidental to how we use the devices.
I've always found the whole "no mans land" thing amusing in a twisted way since the customs agents claim to have legal authority to ignore the Constitution and yet it is the Constitution that grants them any authority in the first place.
If the Constitution/Bill of Rights does not apply and they have no authority to do anything. But If they claim that they have any authority then the Constitutional/Bill of Rights protections apply. And as another poster pointed out the Constitution doesn't have a clause "These Rights only apply to American Citizens".
I don't think border patrol should be searching phones, we agree on that. We disagree on the reason why.
> So while I can't run for US president, if I visit
If you visit, sure, no unreasonable search. Just as I treat visitors in my home respectfully, as I'm sure you do in your home.
Consider when a couple of thuggish looking guys, strangers, show up at my door one night. Not only am I not required to invite them in, but because my wife and 2 year old daughter are inside, I have a responsibility to my wife and daughter to NOT bring potentially dangerous people in. It is my duty to take some care regarding who I allow inside.
If you want to, you can throw a nude party in your house, and say "if you want to join the party, you need to be nude". Or you can throw a sober party, and say "if you want to come to my party, don't show up drunk." I can choose whether I want to come in under those conditions or not. You haven't violated my rights by setting ground rules for your party.
When someone standing at the border requesting entry, a country has no obligation to let them in. They in fact have some degree of responsibility to exercise a degree of care about who comes in and what they bring with them. Perhaps the government has no right to search X, for any X, but they DO have the right to say "no you can't come in", or impose any conditions they feel are proper before granting entry.
Once you're in the US (and while your outside the US), your rights as a human being should be fully respected.
On the other hand, it would be wrong for me to block your entry into your *own* house, saying "in order to go home, you have to get nude." That's the case of US citizens. Unlike people who wish to visit, peope have a right to enter their own home.
That said, I thinking searches the phones of visitors as a general policy is just a bad idea. I think it's inefficient, ineffective, and a bit rude.