EFF's Fight to End Warrantless Device Searches at the Border
eff.org
eff.org
> .. A few days later, while returning from a day trip to Canada, I was once again detained and told to hand over my phone. When I refused, three agents used force against me. One agent grabbed my neck and began to choke me while another wrapped up my arms and legs. The third agent reached into my pants’ pocket and took my phone, all while I was in severe pain and fearing for my life.
Agents once more took my phone out of my sight, only to later return it without any explanation for what they did with my phone.
I had not heard this account before, and it's pretty shocking. I had assumed that while migrants/permanent-residents could be denied entry, US citizens could have their time-wasted/device-confiscated at worst.
I didn't realize that the government had given itself the power to literally beat physical access to personal computing devices out of people without a warrant.
From the link, emphasis mine:
"Our lawsuit, filed in September 2017 on behalf of 11 Americans whose devices were searched, takes direct aim at the illegal policies enforced by the U.S. Department of Homeland Security and its component agencies, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE). In our brief we explain that warrantless searches of electronic devices at the border violate the First and Fourth Amendments, and that our 11 clients have every right to bring this case."
The EFF is filing suit because they believe the government has broken the law. If the government had not broken the law but the EFF desired to change the governments power then they would lobby congress.
de facto perspective: can, can't
The government shouldn't do what they are doing. But they can, and they do.
State governments can still take power away by convening a Convention to Amend the Constitution and then ratifying a Constitutional Amendment.
If the South wall is put into place, it might be possible to justify reducing the margin in which they can conduct searches without warrant, but at the moment it's a crucial tool both practically and in the minds of those charged with defending the border.
Sadly, a considerable number of people in the U.S. are dead set against the wall, and don't understand that the requirement for ladders and climbing makes non-customs crossings more conspicuous and time-consuming, making unpredictable and regular patrols considerably more effective whether or not the wall proves to be a total impasse.
https://www.aclu.org/other/constitution-100-mile-border-zone
YIKES.
https://mitpress.mit.edu/books/walled-states-waning-sovereig...
Because some specific threats, specifically to sovereignty, can be deterred, retarded, and/or prevented by a wall.
I did not make that argument, sorry if I wasn't clear enough.
And of course the government can and does give itself authority. All authority of the United States government even at the most fundamental and historic level comes from, well, itself. The very foundation of the government comes from the government deciding what counts as “consent of the governed,” obtaining that level of consent, then going forward with all the authority it decided to grant itself.
The worst thing we can do is check out. The government is merely comprised of regular citizens elected or hired into power, and we have real power in shaping the future.
The EFF disagrees. You can read their reasoning in the linked article.
It's a way government can eschew all constitutional protection for private data, by simply waiting for the target to cross a border, practical for a majority of citizens. Data is substantially different from physical possessions because it's very portable and most people do indeed carry vast amounts with them when traveling.
Furthermore, in the modern world data import or export offenses (espionage) do not employ physical border crossings, so there is almost no reasonable offense the search could uncover.
https://en.wikipedia.org/wiki/Border_search_exception
Here, the EFF has to show that the search that was conducted wasn't reasonable in some manner or that it otherwise violates due process. They will need to show that the execution of the search wasn't reasonable, because being subject to a search in and of itself generally is. The only SCotUS ruling on search of electronic devices has been Riley v California (https://en.wikipedia.org/wiki/Riley_v._California) where they ruled that a search warrant was required to search an electronic device even when an individual has already been placed under arrest.
The following link will take you to a multiplicity of HN posts describing why the "100 mile Constitution-free zone" is false:
https://hn.algolia.com/?query=Almeida-Sanchez&sort=byDate&pr...
The short summary is: in order to be searched under the border search exemption, law enforcement either needs probable cause (like in any other search), or a demonstrable nexus to an actual border crossing. If you happen to live 5 miles from the Mexico border, the police cannot in fact search you at random, nor can CBP or ICE.
Brennan's dissent, while leaning a bit heavily on dignity concerns for my tastes squares a lot better with 4th amendment case law prior to that term.
No individualized suspicion needed makes parallel construction and other selective abuses far easier to apply to a large swath of people.
But that's what the post the reply was to claimed. And adding 'parallel construction' to this is a bit like throwing in black helicopters.
Parallel construction has actually been attested and reported on by mainstream news sources.
I hate the metonymy of "black helicopters". Helicopters that are painted black do exist, after all. It's merely that there is no reasonable evidence for their use in extralegal conspiracies. If you're going to dismiss something as a conspiracy theory, I'd rather you do that directly.
"That hasn't applied at or within 100 miles of a US border point of entry since 1953."
The plain meaning of that is not 'doesn't apply fully and maybe sometimes applies and sometimes not'. There's a difference between 'charitable interpretation' and 'so charitable as to coincidentally be bent into something originally unsaid but happens to support my argument'.
The goal of charitable interpretation is to avoid assuming ill-faith, not to reinterpret the position to something other than what it is.
Apparently small loopholes can be readily, repeatedly violated.
I... I think I'll never argue about anything on the internets again.
In short:
Martinez-Fuerte authorized stops within range of the border, but explicitly disallowed searches; what made the stop in Martinez-Fuerte lawful was that it wasn't a search. You can be stopped anywhere in the country with virtually no probable cause; it's what happens when a traffic cop pulls you over for a "bad lane change", or to check your insurance. When that happens, the police cannot then pop your trunk and rifle around in your glove compartment --- nor can they take and image your phone.
Bad lane change is explicitly probable cause -- it's direct witnessing of a traffic code violation. It's usually pretextual: they have some other reason they don't want to articulate that might not pass constitutional muster, but pretextual stops and even searches are unfortunately allowed. And no, they're not supposed to pull you over to check your insurance absent some reason to think that there's a problem with it.
Stops without probable cause are bad not just because they are interruptions and wastes of time, but because they allow more opportunities for other abuses such as pretextual searches.
Administrative checks for commercial trucking (i.e. weigh stations) would be a better instance for stops that no one generally complains about.
If you'd like to move the goal posts and talk about roadside detention, fine. But that's (a) not a search and (b) not relevant to the question of whether the border search exception means that tens of millions of Americans are continually exposed to warrantless searches of their devices by dint of living close to a border.
(I didn't say you hadn't read Martinez-Fuerte; I said you hadn't read it carefully. A decent-sized stretch in the middle of the opinion is about exactly this distinction, and reaffirms the fact that LEOs can't search you within a 100 mile range of the country's border).
I don't think talking about roadside detention is moving the goal posts at all -- it's an abrogation of the fourth amendment allowed within 100 miles of the border, and has knock-on effects that make searching easier.
I agree that the way the ACLU characterizes the rulings are wrong, and said as much in a parenthetical. But that's not the same as "thus we shouldn't be worried about the fourth amendment being ignored within 100 miles of the border".
Perhaps not in so many words...
tptacek states that a bad lane change can be given as an excuse for a stop, but not a search, because it is not probable cause. In the following comment, you reject that claim:
> Bad lane change is explicitly probable cause -- it's direct witnessing of a traffic code violation.
A reasonable interpretation of your comment would be an argument that a bad lane change is probable cause for a search. It makes no sense to differentiate "probable cause for a stop", because there is either no such test, or it should otherwise be the same standard as for a search.
On the other hand, I don't think tptacek has tried to give any advice as to whether a person should be worried about this or not.
One of my favorite examples of this: Wickard v. Filburn
"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."
More precisely, it does not prohibit warrantless search if it's reasonable. (Which, as other comments have noted, is why governments say they can search you at a border crossing without a warrant.)
As a far less dramatic example, this morning I had a TSA agent called me "stupid" because I left my toothpaste in my luggage, which I did because the last time I took it out of my suit case, I got yelled at for following the sign instead of heeding shouted instructions to the contrary. 10 feet away a different agent also called me "stupid" because I had removed the toothpaste from my luggage instead of the small Kindle which is obviously bigger than a small iPhone. I guess that's the new threshold for devices that must be removed. And what recourse do I have against verbal abuse over arbitrary judgments? Well if I want to keep flying without excessive effort, none.
edit: I should add, generally speaking I've found American LEOs to be very polite and pleasant, ESPECIALLY compared to some other places I've lived. They have to deal with some truly shitty situations and I'm not anti-police at all - but systemically there is large potential for abuse and some places where that abuse is clearly happening.
No idea what consequences there were for this to the agents but in both cases it was easy to do and I got follow up calls a few weeks later asking for more details.
The accountability lies with their superiors. They are brhaving the way their superiors want them to.
If you want people to catch rats to curb the rat problem and you pay for rat tails, people end up lopping tails off rats and releasing them so they can breed and provide future income.
It's not as simple as making sure that TSA management has the right desired behavior out of agents.
"Dorner issued a single demand: a public admission by the LAPD that his termination was in retaliation for reporting excessive force. He also asked journalists to pursue "the truth", pointing out specific lines of investigation for reporters to follow under the Freedom of Information Act, and said that "video evidence" was sent to multiple news agencies."[1]
[1] https://en.wikipedia.org/wiki/Christopher_Dorner_shootings_a...
Usually I don't side with people who go on murderous rampaged but Dorner went on his rampage because he was pissed off by the LAPD's use of excessive force.
No other security agents in the world require you to take off your shoes, or do anything more than a standard leg pat down (if they do one at all. Most places just make you turn your pockets inside out).
The TSA is absolutely beyond horrible and Americans have just stopped fighting them and accept this as the new normal. You can get past it if you pay the extortion price for pre-flight checks and have them finger print and background check you.
False. At least when flying from Schiphol (Amsterdam) you'll be taking off your shoes and you'll go through an X-ray. Not sure about other airports but it wouldn't surprise me if this was a European thing instead of just a Dutch thing - I can't recall if they required it in Spain as well.
I did see officers asking specific individuals to take off their shoes, with a specific justification: when either the shoes obviously contain metal, or the individuals go through the X ray machine and it complains and there is no obvious other metallic item.
That Obama clip is somewhat popular with libertarian types, accompanied with some form of, "See! Aha! He's admitting it!". As a "libertarian type" myself (though I try not to use that word to describe myself since it has a muddled meaning), my reaction is more along the lines of, "Well, yea."
[1] https://en.wikipedia.org/wiki/State_(polity) [2] https://en.wikipedia.org/wiki/Government [3] https://en.wikipedia.org/wiki/Monopoly_on_violence [4] https://www.youtube.com/watch?v=kpITpm5NxOE&t=1m54s (not endorsing the source) [5] https://www.youtube.com/watch?v=kpITpm5NxOE&t=1m35s (more context)
[1] https://en.wikipedia.org/wiki/State_(polity)
[2] https://en.wikipedia.org/wiki/Government
[3] https://en.wikipedia.org/wiki/Monopoly_on_violence
[4] https://www.youtube.com/watch?v=kpITpm5NxOE&t=1m54s (not endorsing the source)
[5] https://www.youtube.com/watch?v=kpITpm5NxOE&t=1m35s (more context)
The state, with due process and a mandatory trial by your peers, is really the only thing worth entrusting with a right to violence.
It certainly isn't perfect, but at least we control it, and it works mostly in our collective best interest.
Because I was not a migrant.
…
When they confiscate them, tell the TSA to keep it because it’s garbage, and make it clear, your intent is to waste as much of their time, energy and resources as possible.
I'm sure they have many more means to waste your time, energy and resources, so I wouldn't recommend that, unless you have no plane to miss and nothing better to do.
Wouldn't it be more effective (and safer!) to waste their time and resources without them noticing?
Take out the "It's as if" -- that's precisely the government's position.
I'm guessing the best I can do as a non-US citizen is to have my previous phone on me with convincing-enough amount of dummy data in it. Is there any better way?
I will be entering the US via car from Canada by the way.
or the raw content here https://github.com/securityfirst/Umbrella_content
If you think the sky fell because this guys' neck was grabbed, here is some bit more shocking news for you:
https://en.wikipedia.org/wiki/Robert_Dzieka%C5%84ski_Taser_i...