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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.
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.
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
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.
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?
> 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:
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
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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:
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and
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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:
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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.