ACLU: Border Agents Violate Constitution When They Search Electronic Devices
npr.org
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Even people held at Guantanamo Bay have some limited Constitutional rights, specifically habeas corpus rights[1]. You would have noticed if habeas corpus had been suspended 100 miles from the border (it hasn't) or if first amendment rights had (they haven't).
The argument the ACLU is making in this lawsuit is that the sorts of searches that are allowed at the border (checking for contraband, etc) do not cover the sort of searches actually being done (general law enforcement). The border search exception is intentionally narrow: it's to check if people are smuggling rare birds down their pants, not to trawl for general evidence of criminality. Hence the lawsuit.
[1] https://en.wikipedia.org/wiki/Boumediene_v._Bush "The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is'."
The “100 mile” regulation involves the scope of CBP patrol authority: https://constitutioncenter.org/blog/does-a-constitution-free....
The law, 8 USC 1357, says that CBP agents have the power to patrol and search “a reasonable distance from the border” to prevent entry of illegal aliens.
First, calling that a “Constitution-free zone” is rhetoric, not fact. 8 USC 1357 only refers to the CBP’s power to patrol and search, not other Constitutional protections. And while there can be reasonable disagreement about where the line should be, clearly there must be some distance within the US where the CBP must be able to patrol and search without a warrant. The border is an infinitely thin line. CBP can’t patrol foreign territory. It necessarily must patrol US territory some distance inward from the actual border.
The “100 mile” regulation was an upper limit on what “reasonable distance” could be. The actual regulation requires the CBP to define “reasonable distance” based on geography, where border crossings are, etc. The idea is that checkpoints must be at the “functional equivalent of the border.” In the middle of the desert or the Alaska tundra, the checkpoint might reasonably not be exactly at the geographic border. But in no event can it be more than 100 miles from the geographic border.
So all those graphics of how many people live within 100 miles of the border were very misleading. New York City is not within the extended border, even though it’s within 100 miles of the border, and CBP has never claimed otherwise.
In this particular case, the 100 mile debate is irrelevant. The argument here is not that CBP doesn't have the right to do a warrantless search at the border, it's that that right does not extend to searching the contents of a mobile device. Border-crossings are an "exception" to the fourth amendment, and that exception is a "narrow" exception that only applies to what is needed in order to balance the governments interests (here, securing our border against illegal immigration and importing goods not permitted) against the rights of the individual. The search is scoped, and should not exceed that scope; the argument is that searching the contents of electronic devices exceed that, since CBP has no business there.
[1]: https://en.wikipedia.org/wiki/United_States_Border_Patrol_in...
This whole "well, they need some space around the border to operate" seems to be a red herring. No one's objecting CBP from setting up checkpoint buildings at the US border. They've been doing that since 1789. The extension of this space to 100miles is a travesty. Make it 0.5Mi so CBP can't waltz around random bus stations, and no one will complain.
[1] https://www.wweek.com/news/courts/2019/01/28/border-patrol-c...
It's also reasonable for CBP agents to be able to enforce border-related laws anywhere near the border, subject to the usual law enforcement requirements of reasonable suspicion of a crime based on objective evidence for brief detention, and probable cause for any kind of search.
What I find unreasonable is any kind of checkpoint where a substantial number of people passing the point are unlikely to have crossed a border. For example, there's a permanent checkpoint on I10 about 15 miles west of Las Cruces, NM. It's over 30 miles from the border with Mexico in a straight line, and much farther by road. Most people passing this point are traveling between two locations in the US. Everyone is stopped and questioned, and while the questioning is usually not very invasive, it's done with zero individualized suspicion.
I’m not saying that’s a good place for a border check station. I’ve always thought it was silly, but it’s been there for a while.
If what you described reflected reality I'd agree with every word of it. Clearly it's absurd in say the case of Alaskan wilderness to require CBP to setup a checkpoint anywhere near the actual border.
But as you can read in United States v. Martinez-Fuerte[1] the ACLU is more correct than not, although clearly "Constitution-free zone" is a bit of hyperbolic marketing.
The defendant in that case was stopped at a CBP checkpoint halfway up to Los Angeles from the Mexican border. Millions of US citizens permanently live in the San Diego area between the Mexican border and that CBP checkpoint.
I don't see how you can look at a map of San Diego and reasonably conclude that the CBP couldn't do its job using only border stations placed within a mile or two of the border.
> New York City is not within the extended border, even though it’s within 100 miles of the border, and CBP has never claimed otherwise.
So far, but what's at issue is that if they plop down a CBP station between Brooklyn and Manhattan they have existing Supreme Court judgments to back them up.
1. http://cdn.loc.gov/service/ll/usrep/usrep428/usrep428543/usr...
An alternative is to not have a CBP that is part of the Homeland Security apparatus and which does not patrol at all, and only conducts searches at specified border crossings and only based on suspicion of smuggling.
This was the configuration of things from 1789 until 2003.
Sure. To the degree that we still want borders (and I think it's a decreasing degree as time moves forward), this will remain true.
> And it’s absolutely incorrect to claim that historically we only patrolled the border to prevent smuggling.
Yeah? My understanding of the history of the US Customs Service is that it was a revenue generating agency and not a law enforcement arm.
Did it conduct widespread police-style patrols like those we have today? I feel reasonably confident that the answer is "no", but this is not my primary area of historical study.
> The border patrol was established in 1924.
But again, compare it to CBP today. It was what, a few hundred men on horseback in the desert? At least that's my understanding. Around WW2 it ramped up to a couple thousand, but it still wasn't an established, militarized police force comparable to today's CBP.
> Exercise of the authority of the US to expel aliens for national security purposes dates to the founding era.
But the Alien and Sedition Act (for example) is nearly universally regarded as a shameful period in the early history of the country. It's certainly not something to point to as a precedent of this being done well.
I suspect you and I disagree quite strongly on that point. Borders are really important (and the U.S. would probably be better with more borders and internal political separation, not less).
> But the Alien and Sedition Act (for example) is nearly universally regarded as a shameful period in the early history of the country. It's certainly not something to point to as a precedent of this being done well.
Maybe, but they give a pretty good idea of what the founders thought about the constitutional scope of the federal government's power over the borders.
Well, it shows what the Federalist Party thought; the Democratic-Republican Party didn't support the acts and was systematically targeted under the pretext of the acts. (And actually went to state legislatures in D-R leaning states to pass bills protesting the unconstitutionality of the federal laws and declaring them void.) “The Founders” were split between the parties (both Madison and Jefferson were Democratic-Republicans), and the Federalists were the more authoritarian faction.
The idea of “The Founders” as a unified group with a singular view on issued like this is ahistorical.
Could you expand on this?
Or, consider guns. Most Marylanders support gun control. But Virginians love guns. We have no border so whatever gun laws we make are easily circumvented.
Likewise, we signed up for ACA expansion (extending Medicaid to poor adults) when it was first offered. Virginia didn't get around to doing it until many years later, and even then put in various additional requirements. If we were a country and controlled our own politics (and we could be--we're bigger than Norway, Denmark, or Finland) we'd have universal healthcare. Instead, we have to accept whatever we can get after compromising with Alabama, Mississippi, etc.
Borders enable self determination. When you’re a political unit and you control your borders, you can have your own laws and own institutions. When you tear down borders, you eliminate the ability of smaller political units to control the flow of goods, capital, and people. But those things must be regulated. So there is pressure to push power up to higher level political units to regulate those things. And in the process that pushes politics and political accountability further away from the people. And because it expands the polity, it forces compromises among people with different values and priorities.
A concrete example is guns. Idaho has lots of guns (57% of people own a gun). It also has low homicide rates (lower than Belgium). But because of the lack of internal borders, there is little ability to have different gun laws in different places. So there is a huge push to regulate guns at the federal level. So people in Idaho have to fight federal legislation that is proposed because people in Chicago are shooting each other with guns streaming over the border from Indiana.
You’re seeing that happen in Europe right now. The EU started by tearing down trade borders. But once you do that, you needed EU-wide rules for regulating the economy. That pushed more power to the EU, and now you’ve got bureaucrats in Brussels who can override popular law in Sweden.
Indeed it seems we disagree. Moreover, I'm inclined to assert that you are simply incorrect.
It's hard for me to see how something wholly capricious can also be "really important" - I acknowledge that there are some manifestations of man's imagination that are critical in the functioning of the social and political spaces today, but I'm not prepared to go so far as to call them "really important."
The US border specifically is quite destructive. It separates families, inflames (in concert with the childish and abysmal policy of drug prohibition) the ongoing state of civil unrest in Mexico, and creates a huge and arbitrary barrier for people seeking rest, shelter, and work.
A return to a more open immigration policy (and indeed an evolution past the border as a part of political identity) will be a wonderful happening.
Some of the founders also thought the Constitution should be rewritten every 20 years and that binding future generations to the rules sent down in the past was immoral.
They're not infallable gods and their opinion here should be taken as only that, an opinion
Declaring that the de jure words on paper are the de facto events on the ground is rhetoric, not fact. It doesn't matter what the law says if it's not enforced. There are border patrol checkpoints between major population centers of the United States and they are currently searching people under the suspicion that they crossed the border.
The Constitution says that US citizens are free from unreasonable searches. The border patrol is searching populations that are traveling within the United States based on the concept that they must have crossed the border. If the rules of the Constitution aren't being enforced, how is that not a Constitution free zone?
It’s not as if laws and norms of society are dictated by physics. They’re dictated by the people with guns.
The 100 mile and its associated rules are an arbitrary choice. Security theater.
Why would it be "clear" that we should suspend certain constitutional protections for border security? I personally find it a little unnerving that people would see this as obvious.
Put differently, border searches aren't a "suspension" of "constitutional protections" but a limitation on the scope of 4th amendment rights. If you shoot someone dead in public, a police officer can arrest (i.e. seize) you and search you without a warrant. Your 4th amendment rights aren't suspended, they just don't extend to that scenario. The same thing is true at the border. Nations have a sovereign right to police who and what goes past their borders. Borders are the very things that define nations, and nations defend those borders with guns and blood. Nothing in the 4th amendment provides reason to believe that the framers intended to just throw away that ancient concept.
This isn't the case. It is a meme propagated by the authoritarian political-class in the US. Refuse all searches.
"However, the U.S. border is not a Constitution-free zone. The powers of border agents are tempered by our Fourth Amendment right to digital privacy, our First Amendment rights to speak and associate privately and to gather the news, our Fifth Amendment right to freedom from self-incrimination, and our Fourteenth Amendment right to freedom from discrimination."
https://www.eff.org/wp/digital-privacy-us-border-2017
"Border Patrol, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (reasonable suspicion is more than just a "hunch"). Similarly, Border Patrol cannot search vehicles in the 100-mile zone without a warrant or "probable cause" (a reasonable belief, based on the circumstances, that an immigration violation or crime has likely occurred)."
https://www.aclu.org/other/constitution-100-mile-border-zone
As noted there routine stops within such areas have been upheld, but not searches without a warrant. Presumably the ACLU is looking to broaden those protection to include electronic devices.
>CBP policy allows basic searches without any suspicion of wrongdoing; advanced searches require a "reasonable suspicion of activity in violation of the laws enforced or administered by CBP" or a "national security concern." U.S. Immigration and Customs Enforcement has a similar policy permitting both basic and advanced searches.
I think the argument here is that while the folks protecting the border have broad powers... they still have to be protecting the border when they use them and the "advanced" search requires some level of suspicion / reason.
If say they're sweeping up "advanced" phone data just as a policy or arbitrarily but without much reason beyond that there is an argument that would not fulfill the requirements of the law to do so.
In this case the question seems to be if the "advanced" methods are being used properly. Also there's a frequent dance with US law where powers provided to various government entities are balanced with the constitution even if the powers provided are specifically allowed.
https://www.aclu.org/other/constitution-100-mile-border-zone
By who? And who decided that arbitrary number (just because it's a nice round number doesn't mean it isn't arbitrary. And why 100 miles and not 100 yards? etc)?
The Constitution is there precisely to limit overl oppressive ideas the "government" may come up with.
https://www.aclu.org/other/constitution-100-mile-border-zone
Border patrol still can't violate the Constitution, but in practice they do it all the time.
No matter how much it catches on, there will still be people who have no idea what it is, and even if they have it, someone else may have set it up for them so they wouldn't need to know. Even if someone can prove you did understand the literal meaning of the question, you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority.
> you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority.
I don't think this is a defense. If it is a defense, they'll just preface the question with, "In order to safeguard national security, I need to know if you have any hidden accounts on here that aren't readily visible. Are there any?" Federal agents don't have to warn people that they might be prosecuted for lying. Also, if you lie to a border agent and you are anything other than a US citizen, that can be grounds to revoke your visa and ban you from the country.
> Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.
https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-...
Border agents are overstepping their granted authority when inspecting the data contents of an information-storage device, so I'd argue that if you lie to them as they are doing it, they are no longer acting in their capacity as a federal agent. Probably not an argument that a federal judge would agree with, but I can have my own non-lawyerly opinions on it. As it is also my opinion that if you keep a law on the books making it illegal to lie to federal agents, you must also have a law on the books saying that it is illegal for any federal agent to retaliate against or administratively punish any person for failing to answer questions. So, as an ancestor post mentioned, when the likely effect of a non-answer is to draw additional attention, that's clearly unfair to the traveler and their right against self-incrimination.
All that is beyond the ken of the people actually interacting at the borders, so the only solution is to order their boss's boss's boss to write a memo, to pass down the chain of command, saying, "Stop doing this. It is not allowed."
As it is now, the executive will continue to do as it pleases, without regard to folks rationally debating legality on the internet, and neither the judiciary nor the legislature is likely to bother to check it. So the only reliable short-term solution is to not carry such devices across the border at all. When the cops are stupid and cruel, following the law is not a defense. Appeasing them is not a defense. Fighting them is not a defense. There is no defense wherever they can still operate under the guise of legitimate authority. As a traveler, you are completely powerless. And that is unfair, and not something I am willing to tolerate from the US feds. But they don't exactly pay much attention to me with respect to such things--it's okay to step on nobodies; only the people with money matter to them now.
I think about this issue sometimes, and it always ends up coming back to how much power enforcement has if they do not yet have proof. If they can torture you without any sort of proof, then no hardware or software solution can protect both you and your data.
It sucks that it has come to this, but short of legislative changes I don't think there is any other practical way to guarantee security of data at the border other than sticking it in the cloud and downloading on arrival, or using hidden volumes and not mentioning them. Even the cloud isn't really safe compared to hidden volumes - they can always ask about those too.
I think the risk is low for a random person, but if you're Julian Assange or someone equally interesting to the feds, and are known to use relatively sophisticated cryptography all the time, and an image of a phone taken at the border turns up evidence of a large encrypted partition that you denied existence of, I wouldn't put it past a prosecutor to put it to a grand jury and come out with an indictment.
This also means they're not carrying their usual laptop with a bunch of sensitive things on it... and honestly that a serious chunk of the data loss problem with security it seems, folks with lots of data that straight up doesn't need to go places....
Several of my employers had HR folks with their laptops stolen. Like why did the HR person need to take a laptop downtown... and leave it in their car ... with my SSN and everything else on it. Hell why do they need it on the laptop locally EVER? (well the answer is they don't know how to do anything except work in excel files, but that's is its own problem)
It seems like the clear workaround is to ask travelers if this is the case, and to ask for their passwords to any popular sites that provide this service. A clean laptop workspace* is suspicious on its own.
I suppose you could lie about it, gamble that they would have no way of knowing that you're lying. But that's not a fun game to play long term.
So someone wanting to hide something will simply create false 'clean' accounts they can provide access to, while keeping the stuff they want hidden, hidden. Meanwhile, innocent people are getting their security compromised and privacy violated.
Even worse, the authorities could claim the sites they did provide passwords to are 'too clean' and thus they must be hiding something and hold them ... until they give up passwords to accounts that may not even exist?
When I was in public school, the school blocked several popular sites from the school network. As an unintended result, it provided me a great education about DNS, forward and reverse proxy servers, VPNs, and related tech as I figured out the dozens of ways to work around the blocks. Think the same thing wouldn't happen here?
All you're left with is catching only the stupidest criminals, violating the privacy of innocent people, more than likely finding a bunch of false positives of whatever you're looking for, and at the same time forcing the actual criminals to become smarter about their opsec (making it harder to catch them -- in general, not just at the border) and still not catching them.
It's 2019, people. "The network is the computer" was 20 years ago. Kubernetes is the new Linux. Why are people keeping sensitive personal data on a personal computer, the same computer they presumably use to browse the web, and the same one they're worried will be unlawfully accessed at borders or foreign destinations. ssh is still a thing and Wayland hasn't even killed X Windows, yet.
I have my own physical servers (pcengines APUs are cheap and reliable; I have like 4 running at the moment), and smartcards to authenticate for remote access to my colocated, locked-down machines.
If the thing simply isn't there on the device, generally speaking as far as a typical border search goes I think legally it ends there.
Otherwise your workaround would work for ... everything as it is now, but that's not how they operate at scale.
Not sure of how to do with a mobile device such as android yet.
But what I describe is possible on Macs and MS WIndows and Linux..
Of course it goes without saying not to leave a sarcastic acid readme to cbp as a readme.txt file o the desktop they are searching
It’s a inconvenience but the reality is the legal climate for privacy is abysmal.
I hope it changes, but until then, your best bet is to stay well within the law and not make an example out of yourself.
I can't afford to lose work time every time I fly internationally.
Has that actually happened in the case of a device belonging to a person legally authorized to enter the USA? That's rough.
In any case, I typically travel with a wiped (but backed up) phone and an encrypted (but backed up) laptop.
One thing I haven't fully figured out is how to manage travel photography - it's not easy to back up tens of gigs remotely, so I usually just end up traveling with it encrypted on my laptop hard drive but not otherwise backed up.