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Comment by xenophonf | Hacker News Reader

CBP will begin asking everyone for Facebook logins.

I don't understand how this doesn't run afoul of the Fourth Amendment. Surely one's social media qualifies as "papers" or "effects" even though they're digital artifacts and not physical. This just seems _incredibly_ invasive.

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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...

Your phone is undoubtedly your "effects" (in 1789, touching your phone without your consent would have been a trespass to chattel). But searches incident to a border crossing have always been considered not "unreasonable," because inspecting the flow of things across the border has always been seen as a legitimate government function. Indeed, one of the very first things Congress did in 1789 was to create a customs department in order to perform precisely such inspections.

That said, there is an originalist legal argument to the contrary. The framers understood the border-search exception to exist for purposes of customs enforcement. Customs enforcement has always been about physical, rather than intangible goods: https://www.eff.org/files/2015/11/10/clearcorrect_v_itc_-_op.... So searches of digital content are at least outside one of the key purposes of the border search exception. (Of course, that doesn't help with the other purpose of the exception, which is national security.)

> But searches incident to a border crossing have always been considered not "unreasonable," because inspecting the flow of things across the border has always been seen as a legitimate government function.

...

> So searches of digital content are at least outside one of the key purposes of the border search exception.

Yes. And also, who in their right mind would use a phone and an airline ticket to smuggle at most 32GB (or 64, or whatever) of contraband data into a country? Absolutely no one.

I feel obligated to point out that:

1. my phone has a 200GB microSD card in it right now 2. 256GB microSD cards are readily available 3. phones with two microSD cards are available 4. I can easily purchase a 4TB hard drive that is roughly the same size as a pack of cards

It's not terribly relevant, but you're dramatically underestimating the volume of data that can be reasonably stored by media carried on one's person.

1,2,3) I kinda forgot they still make phones with SD slots :). OK, so the storage goes up by 10x, but still, there are multitude of more convenient and more secure ways to move that much data around.

4) Encrypt that drive and ship it. Why would anyone up to no good go to the bother of passing through border security with it on their person?

"3. phones with two microSD cards are available"

link ? Genuinely curious ...

I'm curious - if one carries a microSD card in one's mouth, will mm-wave or X-ray backscatter airport scanners see it?

Johnny Mnemonic.

The international border is a longstanding exception to the Fourth Amendment: searches at borders are per se reasonable. The history of this exception goes all the way back to the founders, so there's probably no battle to be won over whether the exception is valid, only to what the limits of the exception are.

I'm not traveling while carrying Google's, Facebook's nor Yahoo's servers in my baggages. Asking for login information has nothing to do with importing goods. Login and password are not goods. It's invasion of privacy, pure and simple.

Why are the broder patrol not simply asking for login credentials straight out? Why carrying or not a phone has anything to do with asking for credentials? It's absurd.

It's possible (not guaranteed) that it does. There are exceptions in the law for immigration/customs stuff. The way to find out is to sue CBP and have the courts decide, or find existing precedent one way or the other.

Or have Congress pass a law making it illegal or legal. Good luck with that one.

There's case law pushing the border search exception one way or another going back through the 20th century (for instance, it's a mid-1970s case that establishes that you cannot, in fact, be searched simply by dint of being within 100 miles from the border, but rather that the "100 miles" thing is a limit on the government for how far you can get a recent actual border crossing before the government remembers to search you).

Not that there's nothing worth challenging here, but the skeleton of legal principle these searches hang on is pretty strong.

Silly things like laws and constitutions do not apply at the US border. Or anywhere near it.

https://www.aclu.org/know-your-rights-governments-100-mile-b...

There's a statute that carves out the border search exemption:

https://www.aclu.org/other/aclu-factsheet-customs-and-border...

So the argument to be made is that the application of the law or the law itself is not in keeping with the Constitution, not that law doesn't even apply.

oh, some laws definitely still apply! try lying to the border agent if you doubt it!

What if you don't have a Facebook?

I was thinking the same. Most likely: "You don't have facebook? What are you trying to hide?" xD

> This just seems _incredibly_ invasive.

You could leave out the 'seems' and it would improve the comment.

But then the sentence no verb?

/s/seems/is/

https://en.wikipedia.org/wiki/E-Prime

We can have a substantive disagreement about whether or not the practice "is" invasive, less so about whether or not it "seems" invasive.

You're absolutely right.

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