Slashdot Mirror
Bill Would Stop Warrantless Border Device Searches of US Citizens (cnn.com)
Senators Ron Wyden and Rand Paul as well as Reps. Jared Polis and Blake Farenthold have introduced legislation that would require law enforcement to first obtain a warrant before they can search our electronic devices when we enter the United States. From a report: A new bipartisan bill would prevent Americans' electronic devices from being searched at the border without a warrant, a response to an increase in such electronic searches. The bill would require a warrant before agents could search Americans' phones, laptops and other devices at entries to the US, including airports and border crossings. "Americans' constitutional rights shouldn't disappear at the border," Wyden said in a statement. "By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data."
Sounds like a guy I'd like to drink beer with!
i thought there was a much, much older 'bill' that already covered this?
One of two things will happen:
1. Customs inspection will be moved from US soil to foreign soil if it wasn't already there. There. Problem solved. Your constitutional right never disappeared at the border because you never crossed it.
2. You'll be asked to consent to search your device/property. Those that consent will be searched and allowed to go on their merry way if nothing is found. Those that don't consent will be redirected to holding pen where at minimum a lengthy process will commence to obtain a warrant. Best case, you lose a few hours, miss your connecting flight, and are now on a watch list for suspected activity which will increasingly delay future entrances. Worst case, you're never heard from again.
I don't understand how this isn't currently the law. By seizing and searching my cellphone and social media accounts, law enforcement officers are basically searching my property on a server somewhere in the world, and using that to determine whether I have or will commit a crime. Can law enforcement agents go through my home without a warrant if I am trying to pass the borders? What is the difference between my digital and physical property? Regardless, it is doubtful that this bill will pass any time soon given the current state of congress.
They'll just station a judge at the border and continue as usual.
If the government isn't willing to recognize the protections of the 4th amendment, why would the government recognize the protections of this new law?
My understanding is that the current precedent is that the fourth amendment doesn't apply at the border. With a new law explicitly dealing with this border situation, any precedential mushy interpretation of the fourth is irrelevant. If they write it tightly, the justices won't have a way to creatively interpret it, either. We'll see how it goes...
Unlikely. If you want to actually stop it, the behavior has to be criminalized - you know, like they do for any law that doesn't involve government workers.
It needs to simply be "Searching an electronic device at the border or anywhere within the US without a warrant shall be a class ___ misdemeanor punishable by a fine of up to $____ and/or up to 1 year in jail. It shall also create a civil cause of action with damages of at least $10,000 per incident, with each device being a separate incident. No government entity shall indemnify against any such liability."
That's how you actually stop it. It's really not difficult, although I'm sure the border patrol would have a cow. Not that I care what they think.
Do you have ESP?
If the government isn't willing to recognize the protections of the 4th amendment, why would the government recognize the protections of this new law?
Because the 4th amendment, intended to be a general overall statement, has subjective language that allows many things. I.e., "unreasonable" search and seizure depends on the definition of "reasonable", and your definition can and will differ from that of the government. This law would be explicit, and thus more focused.
Not only does it not apply at the border, it doesn't apply within 100 miles from the border. Right now, it's legal, but hasn't been challenged in court. https://constitutioncenter.org/blog/does-a-constitution-free-zone-really-exist-in-america/
I cross the border several times a year, I've never been asked if I'm even carrying electronic devices, let alone inspect them. I've only been asked about alcohol, weapons, drugs...and fruits & vegetables. I had to pop my trunk once, and they were inspecting everyone's trunks that day.
It applies anywhere withing 100 miles of a US border
Second, there sure seems to be a lot of actual evidence that it's Democrats who have been using government surveillance against US citizens for purely - and illegal - political purposes.
That's just misdirection, trying to get the public eye away from the real issue, which is "the Russians did it"!
I don't know why everyone thinks that wiretapping a presidential candidate during an election is even worthy of consideration!
I mean, come on: there's gotta be Russians somewhere around here, we just have to find them!
> the current precedent is that the fourth amendment doesn't apply at the border.
It applies to US citizens at the boarder. EFF is a bit tongue in cheek when they call it a constitution free zone. The current ruling (as I understand) is that crossing the boarder is probable cause and because it is needed to perform the governments constitutional right to secure our boarders inspecting possessions is allowed.
That they extended that to searching records, held in devices. And that they can hold even citizens for a couple days and impose a fine if they do not unlock devices when they cross... is a big stretch to the rules in my opinion.
"It lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it." - Learned Hand
Prove anything by multiplying Huge Number times Tiny Number
I once crossed into the US in a tiny crossing, way out in the woods.
As we were 4 hours into a 12 hours drive, we stepped out of the car. Since we were the only car, all the officers were out, one for each occupant of the car.
I was wearing a fanny pack, and “my” officer asked me what’s in there. “My money and papers and keys” (back then, we did not need passports to go in the US). But I handed him the pack, and he looks at the wallet, then hits the small change compartment. While he was running his finger through the coin, he made the face that you expect from an old pervert would do while sniffing out used japanese schoolgirl panties. The only thing that wasn’t there were the drooling sounds, but maybe I didn’t hear them because I wasn’t really paying attention for that kind of thing
These creeps are seriously fucked-up in the head.
and the others? rights are rights for everybody... there's a definite smell of fascism and racism coming from the other side of the atlantic ocean
Protecting our rights when other Senators don't give a damn.
I'm sure some slashdotters didn't agree with him on some positions in the past, but I doubt any slashdotters would be upset by this bill, or at least the intentions behind it
when you don't even bother to show up to the ISP privacy vote.
Rights are *NOT* given by governments. Governments are formed to protects rights that everyone is born with. These rights transcend national borders.
That the US judicial and legislative branches have to failed to comprehend this, just confirms that the US is now a failed nation state. Heavily armed and wickly dangerously. Buckle up, buckaroos.
American Declaration of Independence (everyone should read and truly understand it)
https://www.archives.gov/founding-docs/declaration-transcript
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The Constitution is very clearly written in this regard, and the Judicial and Executive branches routinely ignore it or hand-wave it away. Americans have the full protection of the Constitution while within the borders of the U.S. U.S. law enforcement officials have no authority outside of its borders.
Therefore, U.S. law enforcement has no legal right to do most of the things they are doing at the border, and belong in prison for violating our highest law of the land; as do many judges and Justices.
> the current precedent is that the fourth amendment doesn't apply at the border.
It applies to US citizens at the boarder. EFF is a bit tongue in cheek when they call it a constitution free zone. The current ruling (as I understand) is that crossing the boarder is probable cause and because it is needed to perform the governments constitutional right to secure our boarders inspecting possessions is allowed.
That they extended that to searching records, held in devices. And that they can hold even citizens for a couple days and impose a fine if they do not unlock devices when they cross... is a big stretch to the rules in my opinion.
The "border" extends 100 mile inland from the real border.
By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data.
Because Americans are of course always innocent. All criminals are dirty furriners.
Nope, no sig
If you aren't using a burner phone when you cross the border, you are not doing it right. Hell, I don't even buy the damn SIM card until I get to the foreign airport. Security can play with the factory defaults all day long if they want. /shrug It's been like this for at least 10 years when crossing the border. It's funny to see the look on the border guard's face when he realizes there is no data on the phone for him to steal. Once they threatened me with felony arrest but they were full of shit and when they realized I knew it, they just waved me through. You don't have to be smart to be a border guard!
Can we just go back to stereotyping? Certain groups are predisposed to certain crimes, we waste tremendous resources pretending that Becky from North Dakota is as likely to be ISIS as Muhammad from London.
Don't do that.
In regards to the US citizen and any action by the US government -- the Constitution applies everywhere.
But when the Bush administration came up with the weasel word; "Enemy non-combatant" to get around military code and Geneva Conventions by placing rights in a no-man's land.
So that's not to say that rights will stop it, just to point out that they will re-interpet the rules and ignore the spirit of it. Fourth amendment DOES apply at the border. Unless the Mexican government is doing it to you, in which case the US government SHOULD intervene.
The tiny threat of terrorism is just an excuse now and pales to the threat of our government security state. If they were any good at this, we wouldn't have elected a Russian agent.
>>"ad space available -- low rates!!!"
The current ruling ... is that crossing the boarder is probable cause
Nonsense. That would mean that these searches are more likely than not to turn up evidence of illegal behavior sufficient to justify the search. Since there are far more people crossing the border than instances where they actually find something worth prosecuting, the mere fact that one is crossing the border cannot be probable cause.
In any case, having probable cause is only the first step in the process. After determining that probable cause exists, and supporting that cause by oath or affirmation, they still have to obtain permission (i.e. a warrant) to conduct the search. No warrant equals no legal authority. Per the 4th Amendment, any warrant must describe the particular place to be searched and/or the particular persons or things to be seized. No branch of government has the power to pre-authorize searches of all devices at the border, because that would be an unconstitutional warrant.
The phrase "warrantless search" is really quite misleading. If the search was truly warrantless it would mean that the border agent was acting without any claim to legal authority. What is really going on here is not "warrantless searches" but "unconstitutional warrants". These border agents claim to have been given legal authority to search your property, which is what a warrant is. However, that warrant does not meet the constitutional requirements due to being over-broad and lacking in probable cause, and was thus illegally issued.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Has always been true that your baggage can be searched at boarder crossings. Your boat, wagon, truck, car or other transportation and mail is also subject to search. Crossing state boarders sometimes has agricultural inspections (searches).
I always assumed any of my international phone calls could be recorded or monitored before computers and cell phones made this easy. I would never have anything on my phone while crossing a border that I wanted to be kept private. Nor post something on line that I would be ashamed of and always knew my web activity was never truly anonymous.
All of the US Constitution applies to citizens, resident non-citizens, and visiting non-resident non-citizens - except being able to vote or to become President. Those are the only parts of the Constitution (as amended) that limit to whom they apply based on citizenship. The rights, for example, of freedom from unreasonable search and seizure, of freedom from lengthy detention or cruel and unusual punishment, of trial by jury only after indictment, protecting free speech, strictly defining treason, and so on apply to foreign residents and visitors as to citizens.
The current US President (Trump) and his administration are wilfully ignoring this fact. The previous US President (Obama) and his administration followed the Constitution on this matter in nearly all (but not every) case.
Therefore this bill should apply to Americans also, and it might well be deemed unconstitutional not to extend to visitors a protection afforded to citzens in line with a Constitutional right.
"For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled"
I didn't do a good explanation of the exception: https://en.wikipedia.org/wiki/... does it better. Basically what I was trying to say (copied from the wikipedia article)
This is part of the justification for why a warrent is not required and that the probable cause standard is lowered.
I do see some need for this, but applying this to electric records... A) I really don't agree B) it is still legally contested.
Also the distinction that only american citizens have full constitutional protections at the boarder is also not right in my opinion. Especially when applied in that 100 mile boarder zone, IE until a person shows their papers they are not constitutionally protected.
Historically, crossing international borders is a big deal, and it still is in many other nations. It is a way from criminals or spies to enter the country.
Me thinks people are too self entitled these days.
100 miles above every point in the USA. So every point in the USA is within 100 miles of a border, so everywhere in the USA falls into this special border case.
"Bill Would Stop Warrantless Border Device Searches of US Citizens"
Thanks, Bill! I owe ya one!
Just cruising through this digital world at 33 1/3 rpm...
This whole article is code word racist. So you are saying we should stop conducting anal cavity searches of 6 year old white boys and instead worry about brown people carrying meth into to USA.
Lets stop the racism. What we need is mandatory body cavity searches for everyone under the age of 7 and over the age of 70. This will show that we are enlightened and progressive. On the akternative side we should not search anyone of brown skin. CbP would no longer be able to ask about country of origin or ask for your passport. (Unless you are a light skinned white person)
100 miles from a border is a Constitution-free zone (at least for ICE agents) now. How about expanding that to 100 miles from any port of entry, including international airports and inland POEs like some major container terminals? Then there are "foreign trade zones" in various locations - another point from which to draw 100-mile lines. With a little creativity, you could let ICE operate unrestrained in most of the US.
The only thing likely to block that would be actually passing something like this law, and possibly overreach that convinces enough courts that it needs restraint.
Also, will this stop them asking for Facebook (etc) credentials, regardless of whether or not you have a Facebook-enabled device on you at the time?
Trump snubbed him recently; now he retaliates by waylaying Trump's plans for "extreme vetting" at border crossings.
I understand looking in bags at the border, but data is way past the red line. I will never comply with that, and if I need to sneak in the country, then so be it.
Back up a bit and read the Fourth carefully. It prohibits unreasonable search and seizure, and provides requirements for warrants. It doesn't say that searches need warrants, as long as they're reasonable. Police can search a person for weapons when taking that person into custody, and almost everyone agrees that that's reasonable. If I'm crossing a border, the country I'm entering has a strong interest in what I'm carrying, so searching becomes reasonable. If I'm out with my suitcase inside the US, it's legally nobody's business but mine what's in the suitcase, unless there's likely to be something illegal in it.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Was a terrorist.
Dialectician. Archology.
I thought the ability to search at borders was constitutional? So a law wouldn't trump that anyway?
I personally sympathize with these arguments, but what do they mean in an era where every "normal" person broadcasts typically private information and video documentation on twitbook and pinface and snapclone, and is streaming photos of their junk to iCloud seconds after taking them? Legal privacy has lost tons of ground in recent decades, but is still somehow so out of step with the cultural rejection of privacy that simply asserting the few remaining rights you have left makes you look like a tinfoil hat wearing loon.
At some point laws don't matter as much as culture. If everyone looks at you goofy when you want privacy (what do you have to hide?), any law is a temporary speed bump in the inevitable lurch toward no privacy.
I feel like we pretend a bill will change the culture. Zealous law enforcement agencies really are not the pace setter here.