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US Appeals Court Rules Border Agents Need Suspicion To Search Cellphones (reason.com)
On Thursday, a federal appeals court ruled that U.S. border agents need some sort of reason to believe a traveler has committed a crime before searching their cellphone. Slashdot reader Wrath0fb0b shares an analysis via Reason, written by Fourth Amendment scholar Orin Kerr: Traditionally, searches at the border don't require any suspicion on the theory that the government has a strong sovereign interest in regulating what enters and exits the country. But there is caselaw indicating that some border searches are so invasive that they do require some kind of suspicion. In the new case, Kolsuz (PDF), the Fourth Circuit agrees with the Ninth Circuit that at least some suspicion is required for a forensic search of a cell phone seized at the border. This is important for three reasons. First, the Fourth Circuit requires suspicion for forensic searches of cell phones seized at the border. Second, it clarifies significantly the forensic/manual distinction, which has always been pretty uncertain to me. Third, it leaves open that some suspicion may be required for manual searches, too.
But wait, that's not all. In fact, I don't think it's the most important part of the opinion. The most important part of the opinion comes in a different section, where the Fourth Circuit adds what seems to be a new and important limit on the border search exception: a case-by-case nexus requirement to the government interests that justify the border search exception. Maybe I'm misreading this passage, but it strikes me as doing something quite new and significant. It scrutinizes the border search that occurred to see if the government's cause for searching in this particular case satisfied "a 'nexus' requirement" of showing sufficient connection between the search and "the rationale for the border search exception," requiring a link between the "predicate for the search and the rationale for the border exception." In other words, the Fourth Circuit appears to be requiring the government to identify the border-search-related interest justifying that particular search in order to rely on the border search exception. "The analysis is interesting throughout, and it would be a fairly large limitation on digital searches conducted at the border, both in requiring some articulable suspicion for digital searches and in the requirement to justify the relationship between the search and the border inspection," writes Wrath0fb0b.
But wait, that's not all. In fact, I don't think it's the most important part of the opinion. The most important part of the opinion comes in a different section, where the Fourth Circuit adds what seems to be a new and important limit on the border search exception: a case-by-case nexus requirement to the government interests that justify the border search exception. Maybe I'm misreading this passage, but it strikes me as doing something quite new and significant. It scrutinizes the border search that occurred to see if the government's cause for searching in this particular case satisfied "a 'nexus' requirement" of showing sufficient connection between the search and "the rationale for the border search exception," requiring a link between the "predicate for the search and the rationale for the border exception." In other words, the Fourth Circuit appears to be requiring the government to identify the border-search-related interest justifying that particular search in order to rely on the border search exception. "The analysis is interesting throughout, and it would be a fairly large limitation on digital searches conducted at the border, both in requiring some articulable suspicion for digital searches and in the requirement to justify the relationship between the search and the border inspection," writes Wrath0fb0b.
Shouldn't the headline read:
"Border Patrol Agents under the Trump Administration Need Suspicion to Search Cell Phones"?
I mean, everything else is tacked on to the president... why not this?
I'm cautiously optimistic on this. While it sounds like progress toward restoring our rights at the boarder, I wonder what the definition of "suspicion" is in this case. If it's simply that the boarder agent states that the person looked nervous to them, then I'm not sure if this will make much of a difference in practice. But I didn't read past the summary either.
...by the reluctance to spontaneously give the phone to the customs agent.
Rome taught me patience and assiduous application to detail. Virtues which temper the boldness of great, general views.
... the border agents will still have the ability to search the phone for someone smuggling small amounts of drugs or other physical contraband in the charger port.
For the umpteenth time: Law MUST protect EVERYONE or they are useless.
Only stupid kuks try to trade other's freedoms for their own security. Too bad Amerika is so overflowing with kuks.
Phones need to ship with multiple passwords that store multiple environments.
Some of these can be "duress" passwords that open the "duress" environment and wipe the content of all others.
Example:
Password 123ILoveAmerica opens enivornment 1, the main environment. This is your normal everyday work environment.
Password 456GoTeamGo opens environment 2, a "show me your papers" environment that looks "normal."
Password 678TeamAmerica is the duress password, it opens environment 2 and destroys environment 1.
How to set up a way to manage environments and having a way to make the police officer think you gave him the password to open up the "manage environments" tool is something that will need to be worked out.
Next step, shut down the border entirely.
Regarding the US Constitution, A professor of mine once said:
The history of the United States is the story of making that document come true.
Simples!
so they have all the reasons they need. That's how this is going to play out.
There already exists the technology to infect android etc phones via the USB port - such that once your phone has been 'searched', It can provide additional data either for detecting terrorism or corporate espionage. As a side note, business or important travellers to China reportedly have free USB 'phone chargers' in their hotel rooms, which when used infect the phone. I have often wondered why someone from one of these firms don't go through with a 'honey pot' phone, act suspicious, get their phone searched, and then do a full diagnostic of the phone to find what they've done to it. Would make for a great story/analysis.
The 4th Amendment does not provide any exceptions to its rules. Search and Seizure requires a warrant. It does not say except on the border or except when there is suspicion. As long as we are okay with ignoring what the constitution says under the guise of "safety" then all of it will be ignored. Kinda like it has already been for a long time now.
We are not even pretending to follow the constitution, we just pretending that we have not become a police state.
"Constant apprehension of War, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home."
~Madison
Problem solved
Those who are not US citizens do not have any rights, period. That is so axiomatic in US law and culture that it is not even mentioned this only applies to US citizens.
And then they wonder why so many people dislike the US.
All it did is allow the slow erosion of freedom in this country. The 4th amendment applies to all of us, including the border. Fuck authoritarians and fuck judges. Hang them all and start over.
The problem with these lower court rulings is that they are immaterial and irrelevant. The Supreme Court has already ruled that border searches of any kind do not require suspicion of any kind. They can be routine as a matter of national security, as long as the subject of the search is within 100 miles of the boundary of the United States.
Whenever I travel to a foreign country, I buy a burner when I get there and destroy it before I come home (usually with fire).
The US Supreme Court has ruled, on a number of occasions, that non-citizens are entitled to due process just the same as American citizens. Anyone want to weigh in on how this appellate court ruling will apply to non-American visitors?
If they crossed illegally, they comitted a crime.
Getting that gps data in an image to show a persons stay in other nations they failed to mention.
The kinds of images that show support for groups of interest to the US gov.
Its like entering the US with a roll of film and saying the US gov cannot develop the film to see the images.
Domestic spying is now "Benign Information Gathering"
This is why I keep all data I care about in an encrypted volume. Before getting anywhere near customs volume encryption key is wiped only to be restored upon returning home.
This leaves customs with two options: Get a proper warrant or get a few gigabytes of noise.
> The 4th Amendment does not provide any exceptions to its rules. Search and Seizure requires a warrant. It does not say except on the border *or except when there is suspicion.*
Here's the exact wording of the fourth amendment, with my comments on each of its two parts:
--
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
--
The fourth says we have a right to be secure against UNREASONABLE searches. There is a legal principle that if the sign says "No parking on Sundays", that implies that parking is allowed at other times. Otherwise the sign would just say "No parking". When the Constitution says no "unreasonable searches", that means that *reasonable* searches are allowed. Courts have ruled that in order for a search to be reasonable, it must be based on reasonable suspicion.
Whenever I point out what the law says, somebody gets mad at me and starts arguing "so you think ...". I actually didn't write the Constitution, I only read it. Secure "against unreasonable searches" isn't what I think the Constitution SHOULD say, it's what the Constitution DOES say.
If I was writing it today, I might say something more specific than "unreasonable". As it is, it's up to the courts to decide if a search is "reasonable" based on principles laid out by the Supreme Court. Courts have two ways to look the reasonableness of a search. They can determine if a search WAS reasonable based on the circumstances, or if time allows they can rule on whether a particular search of a particular place WILL BE reasonable in the future. The fourth amendment addresses one of those two specifically.
Continuing now with the rest of the fourth amendment:
--
and
--
Just one little word, but it's worth pointing out that the framers wrote AND, not "or", not a comma, not "therefore". The use of "and" means the above is true, and separately the next part is also true.
Continuing:
--
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
--
If a court is going to issue a ruling that a future search will be reasonable (a warrant), those requirements must be met. This also gives a hint on how to define "reasonable" when looking at searches that already occurred - they need to have probable cause.
If a person is arrested and put I'm jail, it's reasonable to avoid allowing contraband into the jail by search them during booking. No need for them to spend a day in quarantine waiting for a search warrant that will definitely be issued. Where there is probable cause to believe a person has evidence of a crime AND that evidence will disappear if you let them go and come back tomorrow with a warrant, a search with probable cause may be reasonable. A court can decide whether it was reasonable.
The fourth doesn't say that all searches must be pre-approval, with a warrant. It says they must be reasonable. A warrant is one way of handling the determination of reasonableness.
Here's something that's just my opinion. It's not in the Constitution. I'd like to see better consequences for officers who violate this and other Constitutional rights in a clear way. If an officer knew, or should have known, that their actions violate Constitutional rights, penalties should be imposed on the officer. It should happen regularly enough that officers expect they'll likely get busted if they do that sort of thing, especially if they do it often they'll get busted before long. I also think that courts should continue to be free to disagree with an officer's determination of reasonableness and disallow the evidence, without penalizing the officer if they reasonably thought their actions were okay under the circumstances. Only idiots would become cops if cops go to jail the first time a court disagrees with them on a judgement call. YouTube has plenty of examples of cops who knew they didn't have probable cause, though, or should have known.
Interestingly, that question has already been decided, and I think they got it wrong both ways.
The law already applies to residents/citizens of foreign countries. I was locked up for several years with many foreign nationals who exported cocaine that wound up in America. Some of them did not even have a direct connect to anyone in the US. Just, bang! Midnight arrest, short plane flight, handover to federal agents, and next thing they knew a public defender was telling them they were in the US and they would be seeing a judge in a couple of days.
Somehow, though, it does NOT apply to American citizens overseas. I have read cases of the FBI conducting/leading searches of Americans' property and residences overseas with no warrant and no judicial oversight. Obama even had a citizen assassinated overseas after making the determination that he was a terrorist. That's not how that's supposed to work.
Um, full disclosure, FWIW. I am a convicted felon, served 9 years for armed bank robbery and carjacking. I am a liberal and I align much more closely with the Democratic Party than with the Republican Party.
IANAL. If I remember correctly, that due process requirement was explicitly tied to presence in the territory of the U.S. I also think the searches at the border are associated with the extra-territoriality of the ports and airports (i.e., you're not "in" the U.S. until you clear Customs, or some such)?
I think it's a wash. They'll probably be treated the same as citizens, except that they'll be way more likely to be denied entry.
FWIW, it is weird to see this come out of the 4th Circuit. Usually those guys go hard.
The editors do a wonderful job of mixing up the differences between cases. The difference is the person was leaving the US and was searched , then arrested by the evidence from the phone search.
Literally. And this guy was even white and the son of a police officer. Cops have been given absolute power over the citizenry when they can claim to have felt threatened, and absolute power corrupts absolutely. Cops in the United States absolutely will commit perjury in court and falsify evidence. If not for their own cases, they'll do it to help out their "bad apple" buddies on the force.
It blows my mind that everyone, let alone all criminals, do not do this.
"Arms in the 2nd amendment means weapons of any kind without exception. Everything that is a weapons is a constitutionally protected weapons. To prevent people from having them we must actually amend the constitution to say take those rights away."
IANAL, but not so fast. In The District of Columbia vs. Heller the right of individual gun ownership was narrowly crafted to deal the case before the Court. The court dealt with ownership of a handgun, possession a person's home, and other limited issues. The opinion specifically states that the decision does not address other issues and mentions many specifically, such restrictions regarding concealed carry, prohibitions on gun ownership by certain classes of people (felons, mentally ill, etc.), prohibitions on locations guns can be possessed, prohibition on machine guns and other weapons. To be clear, I am not saying that the Court ruled that those and other limitations are part or are not part of the meaning of the 2nd Amendment. I'm only saying that the Court said they were only ruling on the case before them--which the Court often does, and were pointing out that this ruling did not apply to many other issues including more than a few possible restrictions on gun ownership.
Part 2. This is something I thunk up myself, and I don't know what if any legal clarifications have alreadt been made. The first phrase of the 2nd Amendment text: "A well regulated Militia, being necessary to the security of a free State..."
Two points: regulation by the government (if not the govn't, then by who?) can be necessary to achieve a good. That is in the 2nd Amendment. It ought to piss off far leftist regulation lovers by the fact that is in part of the 2nd Amendment, and similarly piss-off far rightist who think all government regulation is bad.
Note that the phrase is "well regulated." That ought to clear things up and end all debate...not!
Also note that in this case the phrase says "a well regulated militia..." So militias can be regulated, hopefully well regulated. I don't know about you, but I think I prefer any militias to be well regulated compared to no or bad regulation.
Note what it does not say. It does not say that ONLY militias can be well regulated. It does not say gun ownership cannot be regulated.
Reading the Heller decision, it seems clear to me that the Court was pointing out that personal gun ownership has been subject to regulations, and it not an absolute right.
End of rant.
Anonymous Coward (or smart cookie?)
A Firm Supporter of the 21st Amendment.
(Look it up)
Why limit Immigration Agents to 100 miles? Why not up to the Canadian border from Mexico? Is this what I raised my hand for on my oath of enlistment in the USA?" "I swear to Protect and Defend the Constitution of the USA from all enemies foreign and domestic, ...? Definitely ,NOT!!! This OATH has no time limitation, so My Oath is still in force until I die. I took this oath freely as did my brother after me and my Uncle and Grandfather before me. They died protecting the USA. I will Protect and Defend the Constitution of the USA from all enemies foreign and domestic,
We have given leeway to ICE agents to just scoop up persons over 100 miles from the border while working on a job and place him/her in handcuffs hustled into a van and carried away. Seems not much different than the Soviet Secret Police or other totalitarian regimes.
I saw this first hand in a McDonald's in a Ca parking lot where a man pulled up in a truck,went into McDonald's, notified the manager his work schedule of painting the parking lot light poles,he started painting to light poles in parking lot. Then within 5 minutes, a White van with guys w/MACHINE GUNS, pulled the painter off his ladder, handcuffed the man and left everything behind, paint brushes, paint, tarp, his company van, everything but the painter.
Seems like something from a previous century 1930-1960 terror campaigns of the "Red Menace". But this was 2107. Thought there was something called the RULE of LAW and DUE PROCESS, ya know that stuff the President seems not to care about. Seeing what happened to Americans of Japanese descent interred in 1942. sends chills through me. I may be singled out since I have dual citizenship as a native born American and of American-Irish citizenship due to my mother's birth in Ireland.
-This treatment makes me ASHAMED to be called and AMERICAN when our laws are only a piece of paper changeable on Presidential whim
That law is good and all, but not enough until it's amended to remove a few words. Right now we have:
Cops can be punished if they violate your Constitutional rights and the prosecution proves proves that they did it because you're black or Mexican.*
How about we take out the part and just have:
Cops can be punished if they violate your Constitutional rights.
* I'm not actually kidding about the "black or Mexican part. Shockingly, the federal code also includes the words "discrimination against Caucasian persons is not discrimination". I'd have to double check the surrounding wording to see if that could be applied in the context you quoted.