Border Search of Electronic Devices – CBP Directive [pdf]
cbp.gov
cbp.gov
Of course the difference between search for economic (tax evasion) control vs search for security (written/recorded "thought crime") control is the important difference here.
> If an officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the Officer may, in accordance with section 5.4 below, detain the device pending a determination as to its admissibility, exclusion, or other disposition.
Section 5.4 elaborates further.
Also, I found 5.1.2 interesting:
> Officers may not intentionally use the device to access information that is solely stored remotely. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network (e.g. by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity.
Probably until some court rules that a client making the information seem local to facilitate access is legally equivalent to having that information local (and hence not under protection of 5.1.2).
Most likely followed later by some other ruling that a browser can be considered such a client.
Since I work for an educational institution, there is potentially FERPA protected data on my drive. In some instance we also deal with HIPPA data. It's also interesting because my password manager stores it's data as encrypted files on that drive (mirrored from the cloud). I'm certainly not unlocking that either.
Saying that, the only people who cannot be denied entry to the US are indeed USC.
(a) They are regarded as seeking admission and they are found inadmissible. Refusing to unlock their device will not make an LPR regarded as seeking admission as it’s not a reason listed in INA 101 (a)(13)(C): https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0...
(b) They are deportable. Simply refusing to unlock a device in itself will not make someone deportable as it’s not listed in INA 237 “General Classes of Deportable Aliens”: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0...
Another way of looking at it: You can write whatever you want on paper and sign it, but that doesn't make it enforceable. You could sign a document that makes you a slave or puts up your children as collateral for your ISP bill, but those agreements would be scrap paper (or evidence for the prosecutor).
* https://www.aclu.org/other/constitution-100-mile-border-zone
This notion that any place within 100 miles of a border is a "4th Amendment Free Zone" is an urban legend. The ACLU should stop spreading it.
The exact issue we're talking about here has been tried all the way through the Supreme Court, which found that the border search exemption only applies to people with some nexus to an actual border crossing.
Wrong. It found that warrantless “border” searches on public highways leading to it away from the Mexican border were legal based on either perceived ethnicity of drivers or passengers or even no individualized basis for suspicion. No nexus between the searched person or vehicle and an actual border crossing beyond being on a road which eventually led to or away from the Mexican border is required.
It's true that the only places that the decision applies to are public highways, not (e.g.) the interior of residences or businesses, so it's not any place. But it's pretty extensive.
Also, I can't tell if you're nitpicking my summary or if you actually do believe there's a 100-mile-wide Constitution-free zone hugging the US border.
Martinez-Fuerte.
> Also, I can't tell if you're nitpicking my summary or if you actually do believe there's a 100-mile-wide Constitution-free zone hugging the US border.
“100-mile Constitution-free zone” is a simplification that, like any simplification, is somewhat inaccurate; there is a broad (unclear as to it's maximum limits, the 100 miles is current executive policy) in which the courts have allowed, in fairly broad circumstances, substantially lower standards for search and seizure than are otherwise Constitutionally applicable in the US, rendering the protections of the Fourth Amendment in practice much weaker.
In Almeida-Sanchez v. United States, supra, the question was whether a roving patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake, but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. Compare 413 U.S. at 413 U. S. 273, with id. at 413 U. S. 283-285 (POWELL, J., concurring), and id. at 413 U. S. 288 (WHITE, J., dissenting). We held in United States v. Ortiz, supra, that the same limitations applied to vehicle searches conducted at a permanent checkpoint.
It allowed the actions in this case specifically because they were not searches, in the same sense as a traffic stop is not a search, and the police, having pulled your car to the side of a city street for having expired tags, cannot without probable cause demand that you open your trunk to allow inspection.
https://en.wikipedia.org/wiki/United_States_border_precleara...
Martinez-Fuerte sharply limited Almeida-Sanchez: Almeida-Sanchez (1973), it's true, seemed to require warrantless border searches to be at the border, but Martinez-Fuerte (1976) allowed warrantless “border” searches at immigration checkpoints on public highways leading to it away from the Mexican border, even without any individualized basis for suspicion (much less probable cause) or when the decision to make stops was based entirely on the perceived ethnicity of drivers/passengers.
https://www.cbp.gov/newsroom/national-media-release/cbp-rele...
Use cloud services and a disposable OS.
The best way to play their (CBP) game is not to play. Don’t have anything available for them.
If everything is in the cloud, that means I have to be sure to have fast, reliable internet at my destination (which is definitely not always the case). And any way I can think of to securely travel with a copy of my data is just the same problem: the CBP can request I unlock the other device.
Ideally, we just wouldn't be able to be compelled to unlock our data, without the high probability of being forced to hand over the device because of our refusal. How is this not a violation of the Fourth Amendment? It's frustrating in the least.
this is like suggesting a kids toy in the shape of a power tool is easier to repair than a proper power tool. while true, you can't do the same tasks with the kids toy.
Most Officers simply don't believe me, and quite a few embassies had no idea how they would issue me a visa without a phone number on the application form.
If I cross into the US with nothing digital at all (no phone, camera, laptop, etc.) do I have to provide logins and passwords to all my online accounts?
That would be very scary if indeed true.
This includes getting access to my family photos. I don’t want an officer, who self selected by applying for a job that he knows will give him access to family photos, to get access to my family photos, because what kind of person applies to that job?
https://translate.googleusercontent.com/translate_c?depth=1&...
> In FY17, ... Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched
I would guess devices are searched at the border for parallel reconstruction (to find information they already know without disclosing details about surveillance)
(1) There were posts on HN around the time of the Snowden news of border agents presenting private emails, in one instance someone was traveling as a tourist but had email inviting them to perform as a musician
(2) In individual stories I read of searched phones, the agent already knew where to look (for example, went directly to an app with discussion arranging paid hookups)
We already know that parallel reconstruction is common for surveillance used by law enforcement (DEA, local police using Stingray, etc) so that seems more believable than random spot checks on .007% of people.
Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.
From your link:
“The doctrine is subject to four main exceptions. The tainted evidence is admissible if:
- it was discovered in part as a result of an independent, untainted source”
Nothing prevents police or prosecutors from using inadmissible evidence, they just can’t produce it in court.
That statement by itself is clearly false. The police cannot illegally search you and use that evidence as a means to find additional evidence, and then present that evidence in court as if it was untainted.
What I gather you meant now was that parallel construction allows them to do this. Parallel construction is the process by which unlawful evidence is used to direct the attention of LEOs, who, after plainly observing some other crime or probable cause indicator, then conduct a search.
I know what parallel construction is, but what I do not know is why you believe the process is common. Do you have any evidence for the frequency with which it is used? The revelation that it had ever happened was a major news story just a few years ago. Is it your belief that it was common practice, and that even though there are something like 500,000 working law enforcement agents in the US, somehow the secret never got out until recently?
To be very clear: I believe parallel construction has happened and will happen again in the future, but I do not believe it is routine or that any process at CBP is tuned to amplify it.
When the police find a guy carrying $500,000 in his car, do you really think that was random chance?
> That statement by itself is clearly false.
No the statement is true. Detectives act on hearsay evidence all the time (which is inadmissible). They use everything they know about a suspect to drive an investigation.
Inadmissible means only that it can't be presented in court. While a jury must ignore inadmissible evidence, police have no such requirement. Most of their work is outside the courtroom, the trial is just the presentation at the end.
Isn't the problem that illegal (dragnet) searches still happen?
Police only need one warrant or one instance of probable cause to "deploy Stingray" in a city block, and then flag suspicious things, and then use the legal search conducted by the border patrol, to check what was suspicious.
Of course, the practicality of flagging a lot of people for minor things (that somehow are or become a crime when crossing a border) and then keeping those records somehow shared with the CBP in secret for all these years is simply not there.
It's fairly unusual for them to perform any search or inspection at the Canadian land border for Canadian or United States citizens or residents. I suspect that persons who are from nations which are considerably less diplomatically positive with the United States, and especially who have specific grounds for suspicion related to their identity or documents, would bear the brunt of searches in general and electronic device searches in particular.
“Officers may not intentionally use the device to access information that is solely stored remotely. Officers will either request that the traveler disable connnectivity to any remote network…”
There are countries[0] I travel to where that’s exactly what they find, essentially a freshly wiped phone. Hasn’t raised suspicion yet.
[0] it’s also how I travel to certain security conferences. Buy a used/refurbished device before, use for duration of event, sell immediately after.
I've heard people say that if their laptop or phone were searched out of their sight by border officials, they'd sell it afterward.
But is it ethical? I think this meat might be contaminated; I'm not going to risk eating it, so I'll sell it.
That way a properly backed up device could be carried across a border with risk only of inconvenience, not of data loss.
(The passcodes I showed are my passcodes. :-) Nobody else use them, OK?)
EDIT: Also a commenter below reminded me that not obeying any order given to you by CBP/law enforcement is a direct violation of previously agreed to rules of the trusted traveler programs (Global Entry/TSA Pre, maybe even CLEAR?) which would cause you to be removed from any/all of those programs.
https://www.macrumors.com/how-to/emergency-sos-iphone-ios-11...
If the answer is yes to all, then sure, politely refuse and stand your ground until you get your way. I try to make sure I can answer all yes when I travel, but the last one isn’t always possible.