EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

On whose part? The border patrol, so that the pool of potential plaintiffs is large? Or by the EFF and ACLU, choosing a diversity of plaintiffs to represent?

https://en.wikipedia.org/wiki/List_of_international_airports...

CBP is claiming that they searched, on average, less than one phone per day in each airport? Give me a break.

Their claim is probably the number of times they've done some kind of deep analysis with forensic tools. Surely the number of times a border guard casually looked through emails and texts is far higher.

Any number of courts can rule that a particular LEO activity is unlawful, but it seems to have very little effect on their actions henceforth. In my experience, so long as the officers believe they were acting lawfully there are typically no repercussions. Occasionally one might get put on leave with full pay while an investigation is carried out. What kind of disincentive is that supposed to be?

I definitely believe there needs to be a third party to police operations. Some sort of service tasked with keeping police behaviour in check, present to support the rights of the citizenry. Law enforcement officers shouldn't be allowed out alone.

AFAICT from that article, they did not attempt warrantless searches on cars (or individual US citizens) that were not flagged by the dogs.

For example {hypothetical} "Net Neutrality gives alphabet-soup-agency a form of super-DMCA that I don't trust them to have"

I'm fairly anti-regulation and I from what I understand, net neutrality is a (federal) regulatory solution to a problem created by explicitly by (state + local) regulation.

I honestly don't understand why people think that net neutrality is a better solution than a (currently non-existant) federal policy to remove state and local regulations that created ISP oligopolies which limited internet freedom in the first place.

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

The word "unreasonable" in "unreasonable searches and seizures" introduces a full hectare of gray area.

I poked around a bit, and while the first SCOTUS decision addressing this head on seems to be from 1977, it goes into more detail:

"That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U. S. 616, 623 (1886), this Court observed:

"The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as `unreasonable,' and they are not embraced within the prohibition of the amendment."

(https://scholar.google.com/scholar_case?case=610713613239826...)

Also... Malware is not illegal. Using it can be.

This opens a door to unlimited search power at US borders against US citizens. There is already a 100-mile inland range where your can be searched without a warrant around our borders -- we are only going to make this worse by extending that range into all of our private digital data.

I posted a house/key analogy just now that may help clear up the distinction between physical and digital data search. Just to be clear, I'm actually ok with border guards physically inspecting my electronics. I am not ok with them compelling me to login to them, decrypt them, or otherwise hand them over my social media / banking logins / etc.

Keep in mind, we're talking about US citizens re-entering their own country here. I think this is a key point.

But there is no reason to search the devices of U.S. citizens and lawful permanent residents, who are already authorized to live and work in the U.S. These people would have no reason to break immigration law. And if the government is searching digital content for evidence of other unlawful activity, they should have to get a warrant.

Keep in mind that any digital content you can bring through a border port-of-entry, you can also just send it via the Internet.

Another interpretation is that you cannot possible obey the law. If the border guard has the legal right to demand access to the HIPAA protected data, and you can't legally give him access... then the law enforcement officials are forcing you to break the law.

With no punishment for them, of course.

There's one set of rules for normal people, and another for law enforcement. How does this keep me safe?

Assuming you have perfect recall, and answer all of their questions truthfully, it will still take time for them to troll through all of your memories and actions.

They can do the same with a telephone / laptop in minutes.

Answer two: perfect recall

You can't recall everything perfectly, and you don't write everything down. So after a while, they won't have anything to go on. "What did you do in Thailand last Wednesday?" ... "I dunno, I got drunk with my friends?"

Versus "we searched your phone and you took pictures last Wednesday of someone who looks underage. Please turn around for the handcuffs".

In general, I have everything to hide from state actors with near-infinite resources, zero accountability, a deep understanding of the law (i.e. how to get you for almost anything), and their own personal agenda to push.

They should need to prove to me why they need to look at my stuff.