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US Appeals Court Rules Border Agents Need Suspicion To Search Cellphones (reason.com)

Posted by BeauHD on from the suspicious-activity dept.

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.

9 of 116 comments (clear)

  1. Shouldn't that be... by Okian+Warrior · · Score: 2, Insightful

    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?

    1. Re:Shouldn't that be... by PolygamousRanchKid+ · · Score: 1, Insightful

      They already have their suspicions, now they need to be valid and justifiable.

      Oh, I think they'll just say:

      "Being a foreigner wanting to enter the US is a valid and justifiable reason to be suspicious."

      . . . as is, being a US citizen wanting to leave the US is also a valid and justifiable reason to be suspicious. The US is the greatest country in the world! Why would a US citizen want to go to any other country, which are all Hellholes?

      I think the next IRS tax plan will be to "tax foreigners living and working abroad."

      --
      Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
    2. Re:Shouldn't that be... by Darinbob · · Score: 4, Insightful

      The current system has been in place for a few decades, since the courts decided that a suspension of some rights was justified at the border. INS then went further and declared that the effective border region was 100 miles wide, which did not seem to be at all what the courts envisioned. I'd rather the whole thing be rolled back and that anyone inside the borders is granted basic constitutiional rights. Over half of the population of the US lies within that region where the border patrol asserts their privilege to perform warrantless searches.

  2. Suspicion shows up... by OpenSourced · · Score: 3, Insightful

    ...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.
  3. Phones need multiple passwords by Anonymous Coward · · Score: 4, Insightful

    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.

    1. Re:Phones need multiple passwords by Anonymous Coward · · Score: 2, Insightful

      "If it is a readily available consumer "product", a threat to kill someone or their family to NOT give the duress password seems likely."

      First off, professional police in first world countries don't do strong-armed tactics like that. Not routinely anyways. This isn't the 1970s and the United States isn't a country where police corruption is endemic. They might get away with it once but they are under a lot of scrutiny and their luck will run out quickly if they make it a routine practice.

      Second, a duress password is most useful if it can be used without anyone knowing it's not the regular password.

      If the cops in the country I'm coming from have been trailing me and they tip off US border patrol about what they already know is on my phone and I give the agent my duress password he'll know I've given him one of the "alternate" passwords but he won't know if it's the duress one or not until he does a forensic analysis. If I'm entering a country where cops get away with torturing suspects, I shouldn't be surprised if my life becomes miserable.

      On the other hand, if it's just me returning to America and I wasn't previously under suspicion and I've set up my alternate environments so they have pictures of my trip and a one-off email account that has a reasonable normal history and texts from a one-off phone number that are all reasonable for my trip then I can give him the "alternate" or "duress" password and he won't be any the wiser.

      If I really am up to no good of course I will give him my duress password. More likely though I will have destroyed that environment prior to entering the country anyway. There are other, safer methods of getting data across national borders than in a phone's memory.

    2. Re:Phones need multiple passwords by b0s0z0ku · · Score: 3, Insightful

      Police corruption is endemic in the US. It's just given a veil of legality and called "civil forfeiture."

      They won't say "we'll kill your family." They'll say "we'll take your kids for their own protection, if you don't sign over the cash we found in your car."

  4. Terrible Rulling by SirAstral · · Score: 5, Insightful

    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

  5. The problem with these lower court rulings by Anonymous Coward · · Score: 2, Insightful

    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.