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Comment by confounded | Hacker News Reader

From the linked description of the plaintiff's accounts, a US citizen:

> .. 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.

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Generally speaking, law enforcement can do whatever they want as long as they can give their superiors a reasonable explanation of their side of the story and there isn't overwhelming evidence. Most people can't get the EFF to file lawsuits. Many jurisdictions can just charge you with resisting arrest, even if they can't file other charges that justify the arrest in the first place.

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.

I’ve on 2 different occasions called the TSA complaint number due to unprofessional behavior by the agents.

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.

>Generally speaking, law enforcement can do whatever they want as long as they can give their superiors

The accountability lies with their superiors. They are brhaving the way their superiors want them to.

People don't behave like you want them to. "What you want someone to do" is a story, and in my experience, people respond to incentives, not stories.

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.

Yep. And when an agent reports excessive force, or corruption, they are often fired. Sometimes those firings create terrorists, like Christopher Dorner. So I'd say the police have the incentive thing figured out, even at an expensive cost to society.

>Christopher Dorner.

"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.

I think you'd have to say that the fact Dorner killed people is unquestionably wrong. However, his superiors shouldn't even be allowed to fire him for reporting excessive force, and whatever evidence there is should have been examined and gone high enough up the court system until the LAPD was completely overhauled with staff who didn't find it so expedient to use such incentive structures to to get away with behaving in such awful ways.

Not only that, the subsequent response to Dorner seems to add a lot more credence to his allegations than his deranged behavior would suggest.

I've stopped flying in the US simply because I can't go through the line without being molested in some way. It's only in the US.

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.

Tangentially related, but I normally wear boots and I'm asked to take them off every time I fly inside EU. But that's the worst what can happen, have never been ordered to unlock my devices or asked personal questions.

I've taken to wearing shoes that I can slip on/off easily, and a carbon fiber belt buckle. Well worth it.

> No other security agents in the world require you to take off your shoes, or do anything more than a standard leg pat down

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.

We sometimes have to do that in the UK too, so I think it is European.

This is factually incorrect. I fly through Schiphol 10+ times a year and never had to take off my shoes. Neither did I in Paris, Berlin, Barcelona, London, Copenhagen, so "it's not a European thing" either.

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.

TSA agents are not LEOs. They are security guards. They do not have the same rights and priviladges, protections or responsibilities as police others and other sworn Peace Officers.

But in every other aspect of what I said, they are the same. For all practical purposes, most people must simply cooperate with whatever they say in the moment because simple not cooperating will land you in big trouble with big consequences. So although on paper they have limited power, they really don't.

The United States government cannot grant itself power and it does not have the power to beat physical access to personal computing devices out of citizens without a warrant. That is why the EFF has filed suit.

To the contrary, it can and it apparently has. The question is whether that power can be taken away.

No, that is not correct to my understanding of governmental power in the United States. The lawsuit argues that the government overstepped its bounds and exercised power that it does not possess.

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.

While you're looking at it from a de jure perspective (i.e. power as granted from written law), blackbagboys's post is looking at it from a de facto perspective (i.e. power in the sense of whatever they can actually get away with doing).

The de jure perspective is still worthwhile to consider because although there are definitely frequently overreaches of power, you still have a reasonable chance of challenging such overreaches in our court system.

Do you have a reasonable chance? It seems that unless you are already wealthy, or get a powerful entity to back you up like the EFF or Peter Thiel, that you have very little chance of even having your day in court.

This is why we have nonprofits like eff. Individual cases are one thing, but collective cases make it more powerful for defending rights.

I understand that's why these non profits have spring up, but I don't think their existence means you have a reasonable chance in our legal system. They simply don't have the resources to help everyone

I know, it's a tough question. Ordinary citizens are unlikely to sue government individually. And i am aware EFF doesn't have infinite resources. I prefer them fighting at higher level than individual cases. Cases like encryption being unlawful etc are more important for democracy/freedom than my inconvenience at the border for example.

All of that is reasonable but I was replying to the poster who stated that people still have a reasonable chance in our system. I don't believe that is true any longer, if it ever was

de jure perspective: should, shouldn't

de facto perspective: can, can't

The government shouldn't do what they are doing. But they can, and they do.

But the government grants itself its power from a de jure perspective as well. How did the government come into power in the first place? By consent of the governed, right? Remember public high school civics class? But wait, who decided what “consent of the governed” means, and exactly what level of consent was required to claim legitimacy? Yep, that was the government itself.

Well the State governments at the time ratified the Constitution, so the Federal Government didn't grant itself power; the State governments did.

State governments can still take power away by convening a Convention to Amend the Constitution and then ratifying a Constitutional Amendment.

The border has a general mandate for search. If they want to search it, they can search it. Searches of this sort are rare, but seemingly well supported in law. Unfortunately, IIRC this power also extends about 50mi from any land border, enabling vehicle searches waaaay past the "border".

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.

It's 100 miles from the border. Which covers almost 2/3's of Americans.

https://www.aclu.org/other/constitution-100-mile-border-zone

"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."

YIKES.

https://mitpress.mit.edu/books/walled-states-waning-sovereig...

> Why do walls marking national boundaries proliferate amid widespread proclamations of global connectedness and despite anticipation of a world without borders? Why are barricades built of concrete, steel, and barbed wire when threats to the nation today are so often miniaturized, vaporous, clandestine, dispersed, or networked?

Because some specific threats, specifically to sovereignty, can be deterred, retarded, and/or prevented by a wall.

How could a border wall possibly influence searches of personal devices at crossings far away from it? This makes no sense.

> How could a border wall possibly influence searches of personal devices at crossings far away from it? This makes no sense.

I did not make that argument, sorry if I wasn't clear enough.

Can you explain what your second paragraph means, if not that?

The fact that you can technically sue is nice, I guess, but most people do not have the time or resources (or the fortune of EFF’s attention) to do that.

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.

That is why we have the separation of powers. The people writing law do not have the ability to interpret or enforce it and they can be replaced by the people they represent.

Unfortunately Montesquieu wasn’t an economist or a game theorist, so he apparently didn’t realize the now obvious flaw in the idea of separation of powers, which is that it is in the best interest of all branches of government to collude most of the time.

What we think the government should have the power to do based on a common understanding of it's basic legal principles is very different from the actual, literal power that a person and institution has. If someone is doing something and getting away with it, they have that power whether or not it should be viewed as legitimate power or illegitimate power. The actions of law enforcement exist in physical reality, and what you are referring to is what they should have. The EFF is seeking corrective action to bring reality in line with the constitution. "Is" instead of "ought."

It has the power, but does it have the right?

CBP etc agents are trained to believe that they have the right to inspect/search devices. Even though they arguably don't. And so they will use force when there's resistance. Basically, it's rarely prudent to resist, given prevalent escalation-of-force policy to maintain control.

Why anyone in this circumstance, US citizen or not, deserves this treatment is beyond me.

government is essentially a monopoly on violence.

States[1], not governments[2]; an often unrecognized distinction. Also, while the layperson might not think about the state having a monopoly on violence, it's not exactly a secret or controversial thing. See the Wikipedia article on the topic[3] and this clip of Barack Obama[4][5].

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)

Whoops, forgot to double newline the citations.

[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)

Of course it is. What's the alternative?

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.

What happened to the 4th amendment?

Some constitutional protections only seem to exist when it's in the government's best interests, not the people's.

I think it's worth remembering that we the people have a lot of power over fighting for these protections, and in many ways we've gained power over the government in the history of our nation. In most respects, we have more freedoms than ever.

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.

That hasn't applied at or within 100 miles of a US border point of entry since 1953.

So why does the EFF say that it does apply?

The government argues that searches at international borders is a "reasonable" search, thus the 4th amendment's prohibition on "unreasonable searches and seizures" doesn't apply.

The EFF disagrees. You can read their reasoning in the linked article.

Note that the EFF is only disputing searches of electronic devices. Nobody contests that physical border searches are reasonable.

That makes sense now -- you're not going to be bringing in contraband plants or animals or drugs on your phone.

It's clearly unreasonable: a customs search with the reasonable purpose of preventing contraband is used for massive intrusion in the personal life of specially selected people.

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.

The word "reasonable" in this case is almost a term of art, meaning "the courts get to decide". Decide they have.

Whose to also say that we can trust the people doing the searches? What if someone who has top secret government documents on their phone and it gets compromised? The person sells said documents to another state, or worse yet, one of them (or their systems) is compromised by foreign hackers? Now it's a data mining point and who would suspect them to be the root cause? I don't know enough about their systems or their hiring requirements to trust them with my phone. I much rather buy a travel phone that I can pop in a SIM card when I reach my destination and isolate the information available on it.

If people are being physically abused then it is completely unreasonable.

The 4th amendment protects against unreasonable search and seizure, and the state must show cause for conducting any search. At a border crossing, search for contraband (including contraband plants and animals which can seriously damage the United States) are an exception because it's reasonable to search people at a border crossing.

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.

That covers an unbelievably huge portion of the US population.

This is an urban myth, unfortunately amplified by the ACLU, that will never, ever die.

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.

Many if those posts are written by your favorite authority on this topic: you.

They all cite my second favorite authority: the United States Supreme Court. The Court heard cases --- more than one --- directly about this question.

Yes, and you continue to mischaracterize them (in the opposite fashion that the ACLU does). While they don't completely negate the 4th amendment in this zone, they absolutely do negate it for stops at fixed checkpoints. The fourth amendment prohibits not just unreasonable searches (which Almeida-Sanchez addressed) but also seizures. The SCOTUS majority in Martinez-Fuerte basically says that because these seizures are helpful for CBP purposes, that they're reasonable, even without the normal requirements for individual, particularized suspicion: "Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints", where a footnote clarifies that "the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol". In theory this could be challenged, in practice not.

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.

While they don't completely negate the 4th amendment

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.

"Doesn't apply" can uncharitably be glossed as "doesn't apply at all" or charitably as "doesn't fully apply".

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.

This is what it says:

"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.

"Opens a large hole in, allowing violations to large numbers of travelers at governmental discretion and thus doesn't usefully constrain the government against those in the area" is well within charitable interpretation of the quotation.

Apparently small loopholes can be readily, repeatedly violated.

Apparently small loopholes can be readily, repeatedly violated.

I... I think I'll never argue about anything on the internets again.

You didn't read Martinez-Fuerte carefully, or the previous comments I linked to, which (amusingly) discuss Martinez-Fuerte in comparison to Almeida-Sanchez.

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.

You are reiterating my complaint about Martinez-Fuerte while stating that I didn't read it. Even stops that don't lead to searches are seizures that implicate the fourth amendment rights. Martinez-Fuerte acknowledges this, but then says "oh it's not that bad, and if the government has what it says is a compelling reason, go ahead."

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.

No, a bad lane change is not probable cause for a search. How you know that is, upon being pulled over for improper lane change, the police cannot demand a search of your car. I think we're talking past each other.

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).

Yes, we are talking past each other. I never claimed a bad lane change is probable cause for a search. But searches are not the only thing the fourth amendment is supposed to protect against.

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".

> I never claimed a bad lane change is probable cause for a search.

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.

The SCOTUS has been wrong, egregiously so, many times, and this overreliance on their views amplifies the very real problem of stare decisis and the bad precedents we allow it to set, especially when people confuse dictum (commentary) with order and findings.

One of my favorite examples of this: Wickard v. Filburn

Laws passed by Congress and signed by the President can overrule the Court. And if the Court finds that the law is unconstitutional, Congress and the States can amend the Constitution. But who has time for all that?

YANAL

IAAL; this area of the law isn't my field, but in more than one area where I do claim some expertise, Thomas has a better knowledge of the law than some attorneys I know.

YAAL

Read it carefully. It does not prohibit warrantless search.

"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."

> It does not prohibit warrantless search.

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.)

First, they came for the migrants, and I did not speak out—

Because I was not a migrant.

…

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