Slashdot Mirror
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.
Shouldn't the headline read:
"Border Patrol Agents under the Trump Administration Need Suspicion to Search Cell Phones"?
They already have their suspicions, now they need to be valid and justifiable.
It must have been something you assimilated. . . .
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.
I mean, everything else is tacked on to the president... why not this?
right, because you're not the kind of person to pin things on president.
$ for i in $(grep -ic "obama" slashdot/537106/*.html | sed "s/[^:]\+://")
> do
> sum=$(expr ${sum} + ${i})
> done
$ echo $sum
178
Anons need not reply. Questions end with a question mark.
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 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.
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 ...
Check out my novel.