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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.
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.
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.
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.
Okian Warrior complained:
"everything else is tacked on to the president... why not this"
Prompting radarskiy to point out:
Because the incident that lead to this case took place on February 2, 2016.
It's almost as if it isn't universal to just blame everything on Trump, as some people actually pay attention to who could be responsible for the policy in question.
Yup.
And the policy in question goes back to the reaction by the first George W. Bush administration to the 9/11 attacks. In case you've forgotten, every vaguely-law-enforcement-related federal agency (except the FBI, which remains under the aegis of the Justice Department) was consolidated under a new Cabinet-level Department of Homeland Security. The new security behemoth was charged with protecting the USA from terrorist threats as its primary mission, and given essentially unlimited power to carry out that mission in pretty much whatever fashion the Director might fancy. (We also got the FBI's Security Letter authority in the same frenzy of shortsighted legislation, so it's not as though the general disregard of constitutional protections was exclusively confined to the DHS. But I digress.)
Obama gave the continued use of repressive and authoritarian actions - especially against foreign nationals from Middle Eastern and South and Central Asian countries - his blessing, and clamped down hard on whistleblowers from the intelligence intelligence community who spoke out against it, to boot.
Although I suspect that most of Obama's endorsement of such policies was based on the Daily Intelligence Briefing documents and presentations - which, I should note, Donald Trump notoriously avoids reading or paying attention to, unless they're couched in terms that flatter him (and only if they are heavy on photos and simple, colorful graphics) - which I assume contain information to which you and I are not now, and may never be privy.
Because Top Secret, Eyes Only is a classification that exists for perfectly valid reasons.
The thing is, despite what I regard as ill-advised (and largely party-line) endorsements of exceptions to constitutional protections by SCOTUS in the post-9/11 era, they also exist for reasons that are every bit as valid today as they were when the Bill of Rights was first ratified.
I think the Fourth Circuit's Appeals Court decision was a wise, and overdue, one. It encourages me that it dovetails so neatly with the Sixth's related decisions (because the decisions by the Sixth Circuit court are more frequently overrruled by the Roberts SCOTUS - as well as by the Rhenquist version - than those of any other circuit). It's about damned time the pendulum swung back toward bulwarking constitutionally-guaranteed protections, rather than breaching them still further.
IMsnHO, anyway ...
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