Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional | Hacker News Reader

Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional

aclu.org

2,063 pointscoloneltcb580 comments

I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision.

Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.

The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?

The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means.

https://dictionary.law.com/Default.aspx?selected=2087

Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction

Honest question: can illegally obtained evidence be used to get a search warrant?

Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.

If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?

IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.

Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.

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

In the specific case you're talking about, always.

No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it.

Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).

I don’t think you have to be mirandized to give a confession, no?

I think you would to use that in court - https://en.wikipedia.org/wiki/Miranda_v._Arizona - IANAL.

Not a lawyer nor intimately familiar with the subject, so until someone more knowledgeable chimes in and at risk of making a fool of myself:

I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.

That's mostly correct, but it gets even more contextual: if you confess right when you greet the police, your confession is admissible.

However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.

You do have to be Mirandized if the prosecution expects to use that confession--or any evidence derived from that confession (under the fruit of the poisonous tree doctrine)-in court.

For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.

> Parallel construction happens way less frequently than people think it does

This seems like a rather vague claim

I used to be a public defender before I went into corporate and tax practice. Out of roughly 100,000 cases that went through the local PD office while I was there, fewer than 10 involved parallel construction.

Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.

It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.

It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.

Those are the cases where the parallel construction was caught, right? What about all the cases where parallel construction was used and successfully kept secret?

Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine

That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you.

But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.

* https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...

And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.

From the article:

> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.

That was a rather different problem than directly harassing the unlawfully searched person.

In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.

And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.

Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.

> And in such a case, you can sue for harassment.

> they need to show a good-faith belief...

That's not how being a plaintiff works, which is what is frustrating about this type of situation.

They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.

> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court.

This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.

For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.

Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.

Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law.

https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...

You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.

That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.

You’re thinking of Parallel Construction

https://en.m.wikipedia.org/wiki/Parallel_construction

That’s it! Thank you

> surely I can’t impede law enforcement because they haven’t justified their authority to me

Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.

You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.

>Unless you've broken the law (and certain special cases), they have no authority over you.

This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.

The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion.

> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]

No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.

>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?

Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.

In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.

>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.

A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.

“lock screen with CP”

What's 'CP'? Is that supposed to be PC (Probable Cause)? I still don't get it.

They probably mean CP - child porn

Who talks about child pornography enough to need an abbreviation?

The internet? People like to abbreviate things.

Hopefully this stands (or gets challenged and reaffirmed in a higher court). This is a tiny step in the right direction when it comes to the border search exception, which has been upheld in the supreme court [1, 2]. Also commonly known as the 100-mile constitution free zone [3].

[1] Almeida Sanchez vs United States

[2] https://en.wikipedia.org/wiki/Border_search_exception

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

So a govt agency does something illegal. To be honest, im not thrilled. They seem to be acting against the laws they claim to uphold all the time.

Do they get punished? Are they put under extra monitoring now?

This is not a democracy people, this is not "trias politica". Police brutality rampant, this merely being one more case. These court rulings seem rather useless, when the same govt keeps illegal torture prisons (Guatanamo) open, where people's lives are ruined without due process.

I didn't study law, but as far as I understand, illegal is not the right word here. They (govt) do things for which there is no legal precedence all the time. The court could also have found no problem with these searches. Now that they did take issue with it if the searches would continue then yes, that would be illegal.

"Evidence collected in breach of your constitutional rights" is probably a better way of describing the situation.

"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."

Sounds like the Court got it right.

I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended.

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

And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.

I cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.

It's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.

The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text.

There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.

Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.

Is a customs check reasonable without probable cause?

I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.

This court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.

I wonder how much effect this will actually have. Will they count rejection of voluntary search as suspicion of wrongdoing?

It's a trial court opinion, so quite possibly not much, depending on what precedent gets set on appeal.

"reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion.

Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833

> The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant.

The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants.

If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.

I used "warrant" in the same sense that Wikipedia uses it in the context of searches. I could have been more specific and said "judicial warrant" or "court order."

https://en.m.wikipedia.org/wiki/Search_warrant

> I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended.

It sounds like this recent ruling may have rendered that page out of date.

From your link:

> According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.

From the OP:

> In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.

"It sounds like this recent ruling may have rendered that page out of date."

Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.

The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.

Ok so why do they do it? They're many examples. This one isn't even especially good because this employee was protecting his employer's privacy rather than his own.

https://www.cnbc.com/2019/04/03/apple-employee-files-complai...

It looks like the page has been updated:

> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.

Although the court ruled that such searches require reasonable suspicion the court also denied any form of injunctive relieve forbidding CBP or ICE from conducting such searches in cases where there is no reasonable suspicion. Until such an injunction is given expect CBP and ICE agents to continue to perform searches based upon current agency policy.

Saying "rights are suspended" is a very nice way of putting it. Sounds more legit that way than what I call it, "the government breaking it's own laws".

> unreasonable

> suspicionless

To be fair, these searches were prior to entering the United States.

In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.

But the searches are being done by agents of the government, the constitution limits what the government can do

What do you mean? The searches happened at US ports of entry on US soil and were conducted by agents of the US government. In many cases the victims were US citizens. It was already a clear 4th amendment violation; the court has merely affirmed that.

I understood that someone was denied entry to the U.S. based on a search; i.e. they couldn't enter the U.S.

This decision only covers electronic devices. All other items can still be searched without suspicion or warrant at the border, see here: https://en.wikipedia.org/wiki/Border_search_exception

Now do guns next!

But are travelers (foreigners) part of "the people"?

If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)

That's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous.

https://www.senate.gov/civics/constitution_item/constitution...

'People' have rights:

> the right of the people peaceably to assemble

> the right of the people to keep and bear Arms,

> the right of the people to be secure in their persons, houses, papers, and effects

> other [right]s retained by the people.

> [powers] are reserved to the States respectively, or to the people.

'People' usually means 'voters':

> chosen every second Year by the People of the several States

> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,

> the people fill the vacancies by election as the legislature may direct.

Government is made of 'citizens':

> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,

[etc for Senator, President]

and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:

> judicial Power shall extend to all Cases ... between Citizens and ...

> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.

> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

and makes the most interesting statement about the rights of a 'person'

> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.

You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).

Constitutional jurisprudence is really the sum of the text of the Constitution and the rulings held by courts.

IMO the BOR should apply to all humans, anywhere in the universe, when subject to US Government jurisdiction. Let's hope courts agree.

SCOTUS has generally leaned towards that interpretation, at least insofar as the rights involved are judicial in nature (e.g., due process).

Based on this reading, “people” elect the senate. If “people” includes travelers, does that mean travelers get to vote?

They aren’t prohibited by the constitution. In many jurisdictions, non-citizen residents can vote in local elections.

Interesting, I had no idea.

It depends on state/city law. In San Francisco, for example, non-citizens who have school-age kids can vote in local school board elections (as of last year).

I'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.

Have the higher courts have addressed that? The tourist example I'm expecting they _should_ since they are not breaking any law.

Hm. Page 27: https://fas.org/sgp/crs/misc/R44618.pdf

I'm ignoring FFL's because it's not directly relevant.

There was a recent court case about this (Rehaif v. U.S) where the Supreme Court made a decision about the law making it a felony to knowingly possess a gun in the US while here illegally. The prosecutor said "knowingly" just refers to the gun possession, but Rehaif's lawyer said it should refer to knowingly possessing the gun and knowing that you weren't in the country legally (Rehaif claimed that he hadn't read an email saying his student visa was revoked before he rented a gun at a shooting range). The Supreme Court said that "knowingly" referred to both the possession and the legality of one's presence. Presumably that means they're OK with a law that discriminates against some non-citizens on US soil.

Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.

Looks like it was recently (thankfully) reversed and remanded: https://ballotpedia.org/Rehaif_v._United_States

Weird quirk with the huntling license, so that second example is a state law?

No, it's federal law that includes among it's explicit exemptions possession of a valid state hunting license. The law has not been much litigated, though the Ninth Circuit upheld it earlier this year in a case that was mostly a campaign finance crimes case but also involved gun possession by the foreign, non-immigrant defendant.

> Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license).

Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.

The actual law is here Title 18, Section 922, g(5)(B): https://www.law.cornell.edu/uscode/text/18/922 I would guess that it's not enforced very often.

If your friend was visiting from a European country that didn't require a visa to visit the US (most of them) you'd be in the clear.

Some discussion for non-immigrant visas about halfway down this article: https://reason.com/2019/01/12/illegal-aliens-guns-and-strict...

I don't think that is true in practice

It is true in practice.

One example: the children of illegal immigrants are legally entitled to public education, even though they aren't citizens.

This gets a couple things wrong:

1) People who aren’t citizens are still entitled to public education. Many green card holders go to US public schools, for instance

2) Anyone born on US soil is a US citizen regardless of their parents immigration status

Clearly parent is not talking about children born in USA, so your second point is not relevant. Your first point is just a restatement of parent.

The grant-parent said "children of _illegal_ immigrants" and the parent is talking about "children of _Green card holders_". Green card holders are those who have immigrated legally.

The question of the thread is to what extent non-citizens have particular rights. Parents cite two distinct yet substantially similar groups of non-citizens (one presumes that children don't have much agency with respect to the circumstances of their immigration). Both examples argue in the same direction on the question of the thread, so why does this distinction matter?

Is the first point a constitutional issue? I don't recall the constitution guaranteeing anyone a public education.

It doesn't require public education, but it restricts discrimination if it is provided by the state, as all states do. So, yes, it is a Constitutional issue.

Which part of rhe Constitution forbids discrimination based on citizenship status?

No part of the Constitution entirely forbids discrimination on any basis, but the part that is held to limit state discrimination on that basis is—as limits state discrimination on every basis—the equal protection clause of the 14th Amendment.

The equal protection clause applies to citizenship status. The key case on citizenship discrimination and public education is Plyler v. Doe, 457 U.S. 202 (1982) available at https://www.uscourts.gov/educational-resources/educational-a...

Even foreign diplomats' kids?

Only because the Supreme Court decided in 5-to-4 decision that the states don't have a "substantial state interest" that would allow them to deny it. See Plyler v. Doe.

Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.

This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law. You don't want to create a patchwork of different rules in different states based on presence granted and retracted at the sole discretion of the federal government. Once you're on US soil, you're largely treated the same as anyone else on US soil (or at least through the same framework), and that makes sense. If you should be removed, that's up to the Feds. To the extent you're not, you should be treated consistently.

You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.

Mostly.

This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law.

This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.

are largely seen out as soon as their sentence is served

What do you mean by "seen out", exactly?

> What do you mean by "seen out", exactly?

Committing a crime of moral turpitude as a non-immigrant (and even some green card holders) makes you eligible for deportation. [1]

[1] https://www.alllaw.com/articles/nolo/us-immigration/legal-re...

Some years ago (as I remember this) it was allowed to deport any non-citizen who had committed a crime that could lead to a year or more incarceration - is that no longer the case?

It's probably more stringent now heh.

e.g. to serve as a police officer

You can't legally work in any job as an illegal immigrant - it's a Federal law: https://www.law.cornell.edu/uscode/text/8/1324a

I disagree that it is true in practice, because the government can get away with claiming that not treating everyone on US soil equally is OK in the interest of public safety.

https://www.latimes.com/local/lanow/la-me-ln-court-guns-immi...

It's true in practice in a lot of places. In some places, persons without ironclad immigration status can be hassled out of enjoying public services with spitefully racist levels of bureaucratic process. It is similar to how same-sex marriages were denied after being declared legal by county clerks that refused to issue the documents that record their marriage publicly. The kids aren't denied public education, per se, but they certainly cannot get the same education experience as citizens and legal residents get. No electives. No extracurriculars. No field trips. No cafeteria payment accounts. All those things require the proper forms, and proof of residency, you see.

As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.

The well regulated militia is subject to regulation.

Heller vs DC: https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/...

I'd appreciate a summary of this 23 minute long audio recording ;)

I added the title, but I wouldnt do it justice, Scalia gives a fantastic overview of what the militia is in the first few minutes.

It's a summary of the court's opinion and reasoning (and dissenting opinion) in the https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller supreme court case, as to the constitutionality of DC's handgun restrictions at the time, in light of the second amendment. Worth a listen if you've any interest in how we regulate gun ownership, IMO.

If you use javascriptlets like:

    javascript:document.getElementsByTagName("video")[0].playbackRate=2

This actually works in chrome, to speed up the audio playback, if you're short on time.

You can skip the recording and read the ruling itself. It is fairly short and there is nothing in it that is difficult to understand.

When was this?

I assume shortly after the supreme court vote on this case - June 26th, 2008. Perhaps the same day.

In colonial era English language, well regulated refers to something being properly functioning, ie in working order. It has nothing to do with regulations.

More specifically, "regulated" means something like "trained."

Q: How were colonial era soldiers trained?

A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.

Yes, that's organizational discipline, not legislative decree.

Regulations are the means by which you make something be regulated. The relationship between these words hasn't changed.

https://www.etymonline.com/word/regulate

The phrase "well-regulated" is an idiom that means something like "working as expected, calibrated correctly, normal, regular". You can't interpret an idiom literally based solely on the words that it's made from - idioms have their own independent meaning.

The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.

https://www.constitution.org/cons/wellregu.htm

> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

> 1714: "The practice of all well-regulated courts of justice in the world."

> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.

Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):

> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:

> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

If it really is the case that the law is written in the form of an idiom then maybe we shouldn't be taking it as gospel and let it grant people right to individually own a weapon capable of murdering numerous people. I mean, if we really are going to say that the second amendment grants such rights then it's not too much to ask that it be explicit. The fact that it's not explicit is a good basis to interpret the phrase loosely and assume that the founding fathers did not envision the gun madness of today.

I agree with you - laws should be written in as plain, simple, and timeless language as possible. Idioms are something that I'd try to avoid if I was writing laws today. However, in this instance, the operative clause of the amendment is clear:

    the right of the people to keep and bear Arms shall not be infringed.

We can also understand the meaning of the amendment by examining the intentions, motivations, and beliefs of the people who wrote it -- what they were trying to achieve by doing so. There is extensive legislative history on this subject, which makes it clear that the founders believed that individual firearm ownership was an important and necessary preexisting right. The Supreme Court ruling that I've referenced goes into this history:

> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]

https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

> Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training":

The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”

The word "regulation" is perfectly compatible with the "well-regulated" idiom.

That’s absurd. Regulate has had a pretty clear meaning from its Latin origins. (Regula: to rule)

Regulate is a form that appeared in Middle English that means “to control by rules”.

I’m all for guns and appreciating the inscrutable nature of the 2nd amendment. But words mean things.

If you look at the founders’ documents and writings on the subject, “well regulated” isn’t about “regulations,” but about the “proper functioning thereof, as the parent said. There is plenty written about the right to bear arms from that time period by those that wrote the constitution. Words do mean things and those meanings can’t be interpreted without historical context. The purpose of the 2nd Amendment is to protect against a tyrannical government — it’s illogical that the regulation by a potential tyrannical government was intended by the Constitution; it’s the fox regulating the henhouse.

How does a paramilitary organization "properly function" without regulations?

There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.

To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.

I think we can all agree that a teenager with an AR-15 is not a "well regulated militia".

I was trained, by the Army, on the M16 as a teenager. We send teenagers to war zones right now.

There’s a very real possibility that a teenager with an AR15 is literally part of a well-regulated military group protecting the county.

And every citizen and immigrant who intends to become a citizen man (and women in the Guard) at least 17 years of age and under 45 is a member of the Militia of the United States[1].

[1] https://www.law.cornell.edu/uscode/text/10/246

But for the purpose of militia in this context and therefore that of the 2nd amendment, the power of Congress over the militia is deemed "unlimited" [0]. As such, regulating it's use of arms would be well within it's remit.

[0] https://law.justia.com/constitution/us/article-1/58-the-mili...

... as long as such regulation does not infringe the right of the people to keep or bear arms for all the purposes envisioned by the constitutional framers.

Wikipedia has an excellent reference on this. See the "Experience in America prior to the U.S. Constitution" section: https://en.m.wikipedia.org/wiki/Second_Amendment_to_the_Unit...

The purposes of the framers appears to be a well regulated militia, and that militia subject to "unlimited" control by congress. I agree this would mean congress could not dismantle or subvert the purpose of the militia, but having tight controls over the weaponry at their disposal when not in a state of current or imminent battle would not seem to so undermine it. After all, even the professional military have much, much more tightly controlled access to & tracking of firearms than is imposed in civil society. It is hard to credit an argument that would say militia could not reasonably & constitutionally mirror those same controls.

See the Wikipedia article - it mentions several further purposes both separate from and contained in the notion of a militia.

That clause simply provides one important reason why "the right of the people to keep and bear Arms shall not be infringed". It's not a limitation or restriction on that right. For more an extensive deep-dive on the meaning of this amendment, see District of Columbia v. Heller, 554 U.S. 570 (2008): https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...

> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...

> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)

> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

In the 1700s, the word "regulated" meant "in good working order." It did not have the association with law that we have now. You can look into the history, but if you don't care to, consider that "regulations" (as we've described them over the past few centuries) are a form of law found in modern bureaucracies.

> For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.

AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.

While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.

I think that ruling flies in the face of the Constitution, there's no exception that I can find in "the right of the people" that says non-citizens don't qualify.

There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.

Except travelers are not "on us soil" until granted entry by customs. Customs could just deny entry if foreign travelers won't voluntarily consent to search.

If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all

But good luck explaining that to them.

I agree, I think this is more an argument to be made in court

The last time I so much as questioned an american customs agent about something they asked me to do, I was interrogated for 2 hours about my life, job, friends, family, phone searched, car flipped through, etc.

They even had 2 canine units circle my car and jump in and out of it at least 10 times each.

Talk about a heavy handed approach.

Some people get off on power, and this job is as close to having power over people as some can get.

As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.

Weirdly enough this isn’t much of an issue in most other parts of the world.

Really? Because Canadian customs officers are known to be a bunch of tough guys too.

I travel across the US Canada land border from time to time (in the mountain west). My experience has been that Canadian officials are universally civil and respectful while US officials are universally not.

In my experience on both sides, pleasantness is directly correlated to the number of cars in line.

As a frequent traveler between the US and Canada, I’ve only ever got grief (including accusations of smuggling) from Canadian officials. Going to the Us side it’s usually a simple “have a nice day”.

And I have Canadian citizenship.

Same here. https://borderprivacy.ca/

Signed and donated. It happens to me every, single, fucking, time, losing 1 hour every trip back home.

Can confirm. Have crossed between New York/Ontario many times over the years.

It's already pretty well established as law. There's not really any room to argue.

It depends on the entry point. If I go through US customs in the Toronto airport, it's on Canadian soil. If someone there is having an issue with the process, they can withdraw their entry request and leave. That's perfectly fine and they shouldn't be punished for it. You don't have that option if you use a land crossing as you're physically inside the US.

Why would you be in US customs in a Canadian airport? I didn't know that exits.

Not sure if parent is talking about https://en.wikipedia.org/wiki/United_States_border_precleara... or not, but yes, that's a thing.

I recommend caution when asking the agents at Shannon if the Republic of Ireland still has sovereignty from the United States of America. In my experience, it hits a nerve.

Why would you ask that?

Many US airports, especially away from the coasts, don't have any immigration/customs facilities, instead flights from Canada to the US go thru US customs in Canada (make sure you get to that flight early) since it's cheaper to put US facilities in a relatively smaller number of Canadian Airports

The Bahamas also has US customs there. You do the immigration part before boarding your plane. And you land on the US on a domestic terminal and don’t go over customs.

> If someone there is having an issue with the process, they can withdraw their entry request and leave.

Since August 15, US border agents in Canada are now able to prevent you from withdrawing if they detain you. (Bill C-23)

But customers officers can't force you to comply can they? So whether or not they have any authority is irrelevant. Of course if you choose not comply you have to turn around.

Sure... but I don't know where US citizens will go if they do not have residence in another country. Not everyone getting searched reside outside the US.

In that case you as a citizen are allowed to enter, but whatever they're searching (phone, computer, etc) may be detained and you'll be given a receipt and (often) an opportunity to claim it at a later date.

at the border you are not yet on US soil. They can deny you for any reason at all

and constitutionally speaking, permanent exile isn't considered a punishment for noncitizens, so SCOTUS can rule whatever they want is unconstitutional, it still means they're gonna do it

As Taniwha pointed out above[0]:

> If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all

[0] https://news.ycombinator.com/item?id=21518813

Even if that's true, that simply means the search moves a few feet to US soil, where they stand on one side of the border and you stand on the other. And they don't have to let you in if you're not a US citizen or lawful resident.

Doesn't being subject to search apply regardless of citizenship status?

No, if you're a citizen or lawful resident they have to let you in...eventually. Courts have ruled that they can hold you at the border for a few hours.

That's completely untrue, as much as it would make sense for it to be. In fact, constitutional rights have not been applied universally to noncitizens by courts. Everything from the First Amendment onward has been limited by case law as it applies to non-US persons.

Your reasoning may be correct, but not quite so obvious to courts. For instance, foreigners' right to keep and bare arms is routinely violated, even though they are people.

> foreigners' right to keep and bare arms is routinely violated

Their rights are violated by courts?

Many states ban non-citizens from gun ownership. The courts have explicitly, and implicitly supported this interpretation of the second amendment.

It's pretty easy to make the case that nobody knows what the U.S. Constitution actually means.

Quite literally the opposite is true: https://blogs.findlaw.com/seventh_circuit/2015/09/non-citize...

Court upheld the right of an illegal alien to own a firearm.

> Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.

> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.

What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.

> What is the point of a theoretical right that can't be exercised in practice?

It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.

Does that same reasoning apply to free speech?

The First Amendment does not have the same restrictions as the Second Amendment.

To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).

Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.

Their rights are violated by others and not upheld by the courts.

Courts have upheld the rights of foreigners (i.e., illegal immigrants) to bear arms. This does not mean that they get to bring them into the country.

Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border.

In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.

CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.

In the old days it was also routine for people to own eachother so I’m not sure how much that really means.

Classic whataboutism.

Yeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.

Eh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.

> In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws

Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.

> Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws

Child porn is prohibited to be imported in any form, including digital. Customs isn’t about just physical objects.

Of course not, but there is a degree of proportionality here. In theory a person's personal diary, letters, chequebook etc could contain evidence of crimes. However it's generally not been considered appropriate to read through them during a customs search.

The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.

> but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.

https://en.wikipedia.org/wiki/Bernstein_v._United_States

Evidence of the four horsemen[1]. Child porn, terrorism, drugs, and the all-encompassing "organized crime" — which can include money laundering, which in turn can mean having enough money the government wants to steal it.

[1] https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalyp...

Your examples of searching cargo aren't comparable though. The closest analog version to phone or computer searches would probably be searching an individual's private papers, personal journal, and list of contacts.

The incomparability is the point.

Are you sure? The GP post seemed to be using the comparison to explain why these types of searches are in fact in line with historic border & import practices because those historic practices could include a search of cargo, luggage, etc. It certainly appeared that post was attempting a direct comparison.

No, I was explaining that it is not an open and shut case on a bare reading of the 4th,and I was explaining CBP's theory of law for the case.

Not really the same thing. The same thing would be customs taking your phone apart with a screwdriver to search it’s physical contents.

You rightfully argue that lowering protection boundaries was necessary to uphold the law. The same logic can be applied in reverse though - there is no practical need to smuggle data into the country on a physical device nowadays, so why search devices?

I'm sure that was part of the ACLU's winning argument.

"In the old days" is just Argument from Tradition. We also used to treat infectious disease as demonic possession. Next argument, please.

Looking at how a law has been implemented in the past is a basic legal principle. The reason for it is to provide context as to the intent and proper way to interpret a law, in order to ensure continuity and consistency in it's application. The idea is that, all other factors being equal, continuity and consistency are desirable.

Though it is also a basic legal principal to determine if the circumstances that gave rise to a law are still in effect, and if not the law may be rendered moot. So much so that laws that haven't been enforced for an extended period of time can be challenged & overturned on exactly that basis if someone suddenly finds themselves on the wrong side of such a law. I'm just making that distinction though; In this particular case, there is still a continued interest in controlling what enters & leaves the country. The specific issue with this court case revolves around whether personal electronics are truly comparable to items that have traditionally been subject to searches. The court says no, they are not comparable, which seems to make sense: Such devices are less like cargo or luggage and more like personal papers, journal, etc.

It's like everybody who's replying to you didn't read your last paragraph

No, I read that, but the author presented a viewpoint from the historic example of luggage, cargo, etc. searches and then simply stated the courts disagreed. Expanding on that to talk about why those things are in fact different and not comparable is a salient point, and not something that a reader of the GP comment would necessarily come away with otherwise.

Because the reasons are fairly obvious to everyone here. Smartphones are basically an extension of our brains. They are our eyes, ears, mouths, and memories. Searching a smartphone (and usually copying its contents) is an invasion of privacy far beyond flipping though a ship log or traveler's diary, so that precedent isn't good enough to establish reasonableness.

Well, maybe what I wrote was redundant then.

One of the best things about the USA here

Good question. I was going to say "yes" but the Heller decision has made that less clear.

My understanding of Heller was that it expanded rather than contracted the rights of the people against the excessive regulation of the state?

[EDIT:] great link, thanks!

This analysis is what I was referring to:

https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_...

There are cases of doing this to U.S. Citizens, in some cases, quite disturbingly, to journalists.

It's no more or less disturbing for journalists to be subjected to this. They're not some special class of protected people.

On the one hand, it's extra bad because searching a journalist leads to an additional violation: freedom on the press.

On th other hand, we should not think of 1A rights as rights that only specialists or professionals need.

(Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)

Except that we can all journalists really. There's no professional mandate. Go to rallies and make videos and post them on your political blog? You should be considered a journalist.

Every person with a laptop / cellphone and a thought can be a journalist. See the Opinion column on big news sites...

Hmm...I thought they actually were a special class of protected people.

They'd like us to believe that. That's why they appropriated the term "the press" for themselves when it originally referred to a machine that was used to print. When 1A mentions "freedom... of the press", it's as one of a group of rights that apply to all people, not a group of different parties that have rights. That is, 1A protects everyone's freedom to operate a printing press, or use some other means of publishing and distribution that might have been invented since then.

I’d like to learn more about your interpretation of what “the press” is referring to; it strikes me as interesting that “operating a printing press” would be the explicitly enumerated right in such a (mostly) broad text, but then I am aware of the cultural differences over that many years means it’s not out of the realm of possibility. Do you have any articles or books I could read about this?

The point is the government can't arbitrarily take away your medium of communication you legally own and use. Barring random specific issues (such as noise ordinances), if you own a megaphone (metaphorical or not) you can use it to spread your speech. If people could only exercise free speech by whispering quietly to themselves then it may as well not exist. You could start by reading wikipedia about freedom of the press.

That, I already understand. What I'm asking about is the narrower definition of "the press" in that historical context, because the usage nowadays is much broader.

Back then, the "press" was the only method of communication other than actually talking to people. But the point was that the government couldn't infringe a method of communication.

EDIT: Note, for example, that the Federalist Papers that drove much of the discussion behind the policies in the Constitution were self-printed by Franklin, et al. Newspapers at that time were highly political and opinionated, like Fox News today, and did very little actual reporting of news. Journalists and "the press" didn't get conflated until much later.

It's a lot more disturbing if other parts of the government can arbitrarily target people they don't like for harassment. There's a big difference between 10 random searches and 10 targeted searches. Journalists aren't that common. If there's a large cluster of journalists getting targeted in a close period of time, it's worth figuring out why that's happening.

You are making a strawman: they are not a special "class" indeed.

But they have a very special position and role that makes them specially vulnerable when dealing with powerful institutions.

You might argue journalists (amongst others) might be more subject to retaliatory harassment than ordinary people.

The freedom of the press is specifically called out for a reason.

The freedom of press in the 1st amendment refers to the printing press and the owners of those presses didn't want to be restricted on what they could print or be forced to print things they disagreed with.

It was not, in any way, intended to refer to "journalists", a group whose only defining characteristic appears to be employment by a certain group of private companies.

And a NASA scientist with top secret info on his device, too

That's an interesting question. It's not restricted to only citizens (so applies to immigrants, etc.) but may not extend as travelers who are passing through or has no real connection to the country. Ref: US vs. Verdugo-Urquidez

It’s a bummer there is still so much serious political discussion about which people count as people.

That's a silly (mis)characterization of what this is. Some rights are only afforded to the citizenry, and that is not inherently evil and is often the only reasonable approach. Other rights are afforded to everyone. The discussion centers around teasing out what the Constitution means when it uses person/people.

I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.

Not everyone gets the same rights. That's why we have the word "citizen", and why citizens get different legal status. One of those rights is the right to vote. Are you saying you think anyone should be able to vote in the elections of whatever country they want? That seems pretty silly.

No, I don’t think everyone ought to have the right to enter my house at night time either, but my point does not collapse to such absurd suggestions. I was, of course, referring to the phrase “the people” in the text of the fourth amendment. I hope I don’t sound too silly suggesting that the right to not have property searched and seized unreasonably is not something that ought to depend on which country you were born or have gained citizenship in.

I do agree, but that's not what you wrote before. You wrote that "all humans should have the same protections against their rights being violated", which implies you think everyone should have the same rights. This clearly doesn't make sense, as I pointed out about voting rights. The bottom line is, not everyone has the same rights. Citizens of any country have more rights than non-citizens; there's nothing abnormal about this. You can argue that certain rights should extend to everyone (and I would agree), but this argument seems to have some disagreement about whether unreasonable-search-and-seizure is a right that should only be afforded to citizens or not, and I'm just pointing out that non-citizens don't get all the same rights as citizens.

Good news: none of the Bill of Rights are limited to citizens, and most are indeed broadly worded so that citizenship status is not a threshold requirement for the right to apply.

> I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.

Don't different countries have different views of rights? What happens when those rights are at odds? For example, Turkish people can't speak ill against their governments [0]. This contrasts with countries that have fewer restrictions on speech, like America.

So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?

Or is "protections" here more about procedural rights?

[0]: https://en.m.wikipedia.org/wiki/Article_301_(Turkish_Penal_C...

What is your argument here? The fact that human rights are not respected in all countries doesn't mean that humans don't have rights.

It means that we can't agree on the list to begin with, and it's not always cut and dry.

I’m sure the people didn’t get together in a referendum and decide to be not-allowed to criticize the government. That’s not a matter of not agreeing, it’s a matter of being told

And in between tyranny and the right of free speech (which not even all modern countries agree on I would add) there's a whole lot of gray. For example, is healthcare a right? How about voting for felons?

> Don't different countries have different views of rights?

And so they would apply their views in their own jurisdiction.

> What happens when those rights are at odds?

Whichever jurisdiction you stand in correspond to the rights that prevail for you.

The way I see it, a country says what the rights of people/humans are, and they defend those beliefs in their own jurisdiction, where they have the absolute power to.

> So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?

I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.

> I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.

Ah I had not thought of it in this way but that makes sense. I can't disagree that all people in a single jurisdiction should be afforded the same procedural rights (I couch it in procedural rights because substantive rights are stripped from felons for example in many jurisdictions).

Depends on what you consider a "right" to begin with, which brings us full circle. I think some things are easy and most reasonable people will agree on (like here) but there are many which aren't so clear cut.

It doesn't make sense to extend the right to vote to tourists, for one. I could imagine a flood of tourists at election time from certain countries.

While this is very relevant in a broad sense, it isn't at matter in this case.

The plaintiffs are 10 U.S. citizens and one lawful permanent resident.

Yes

It's unfortunate that this is a reasonable question. I've been surprised to learn how conditional being treated like a human being really is (location, citizenship, etc.). It would be my preference for my country to treat all people kindly, fairly, equally.

If non-citizens are treated perfectly equally to citizens, what is the point in having a distinction between citizens and non-citizens?

I would argue that any individual deserves most or all rights outlined in the Bill of Rights, regardless of citizenship or geographic location. These are fundamental human rights. I'm aware this is not how the constitution is written, it's just my opinion.

Some of the Bill of Rights are fundamental human rights, like right to free speach and right to bear arms.

Others are not, like the Tenth Amendment.

The 4th Amendment is probably closer to the first category rather than the second.

> But are travelers (foreigners)

International travelers entering the US (who were subjected to the policy) are not all foreigners.

> part of "the people"?

Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)

Yes. The Constitution is very careful in its use of "people" (or "person") and "citizens".

Slight correction: "suspicionless searches OF ELECTRONIC DEVICES." Suspicionless searches of all air travelers is still very legal.

Reasonable suspicion

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

>a legal standard of proof in United States law ... more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual.

Open question, here: Doesn't this backfire and make TSA more likely to operate on the basis of profiling alone? What makes a traveler suspect?

This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more comprehensive source. This leads to incidental systemic discrimination.

That said, if 'suspicionless' is tied to concrete external evidence rather than mere profiling, this should be a good move.

Unpopular opinion: why is profiling bad in context of airplane security?

If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency.

I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.

It doesn’t work. The TSA is horrendously ineffective and is the definition of security theatre. This just hurts people needlessly.

Much like the no fly list which is a huge violation of due process.

Israel is known for having effective airport security, as well as for making use of profiling.

Do you have evidence that one is the cause of the other?

Hardly a role model for any state.

It's bad because it doesn't work. Your hypothetical is just that, hypothetical. Doesn't work in practice. Also, violated due process.

I'll (possibly inaccurately) assume this is in good faith. The most obvious reason that profiling is bad, even in your inaccurate and simplistic hypothetical scenario, is that just because all airplane terrorist attacks came from people of X country, does not imply that everyone from X country commits terrorist airplane attacks. Therefore you are unfairly and immorally forcing invasive searches on many innocent people of X country. If you have any empathy for the innocent people of X country, you will realize how horrible this is.

> Therefore you are unfairly and immorally forcing invasive searches on many innocent people of X country. If you have any empathy for the innocent people of X country, you will realize how horrible this is.

Okay, we are talking about an extra 5 minutes of scrutiny, not cruel and unusual punishment. I don't think it's really that "horrible" to make people from countries with bad track records jump through some extra hoops.

To use a real example... it would be like me doing extra background checks on Chinese people applying to my company vs. Norwegian people. Not all Chinese people are spies, of course, but I've never heard of Norwegian moles infiltrating US companies and lifting IP back to the motherland being a rampant problem.

> Okay, we are talking about an extra 5 minutes of scrutiny, not cruel and unusual punishment.

5 minutes if you decide to go along and reveal your entire digital life to the TSA.

We'll have to agree to disagree about the invasiveness. In the case of the lawsuit in the original post, it's the search of all your electronic devices. I consider that to be quite invasive.

Furthermore, CBP and ICE both claimed their authority to search electronic devices at the border extended to US citizens, so much of the profiling was not just of people from certain countries, but from people whose ancestry was from certain countries.

Lastly, I can't and won't try to convince you that it's wrong to subject people of various backgrounds to different, worse treatment, whether it's "cruel and unusual" or unfair, or invasive, or even simply inconvenient. It sounds like you aren't usually subject to such treatment or else you would probably have a different outlook on it. I recommend talking or listening to some people who do, and what their experiences are like.

Israel profiles like crazy and it works well. When I was traveling through there, I got a lot more questions. It just makes sense. A lone adult males traveling versus an Israel senior citizen.

Israel is an apartheid state founded on ethnonationalism from day 1. I don't think it's a great example to follow.

the parent's assumption is "if you have any empathy for X people". from deir yassin to modern day. That assumption does not hold.

Your opinion is unpopular because it makes no sense and does not improve security. The attacker will simply recruit a "Yian" because that's your blind spot now.

I would actually argue it does improve security since you're spending more time on the people who have a higher probability of being a terrorist versus those that don't.

What doesn't improve security is just random screening where you're frisking 4-year olds and senior citizens and letting the adult males walk on by.

It takes months to years for the regulation and security to start direct profiling a specific group. It takes this group a few days to change strategy. It's not very effective to have tunnel vision.

In that case, the odds of a Yian being a terrorist would increase, thereby increasing the odds of a Yian getting searched. If we assume that the odds of being a terrorist varies based on demographics, then this would catch more terrorists than random searches.

It reminds me of the N-armed bandit problem: use random searches some small percentage of the time, and use a distribution based on prior samples to identify subsequent searches. (It's not exactly the same, but the same technique applies.)

Xians can just start coming in from Y country.

Certainly an unpopular opinion, but perhaps the comment you're responding to means profiling in a different way?

The way I typically understand profiling is that it's done to anyone who has features (skin tone, facial hair, clothes, etc) similar to Xians regardless of those people's actual origin.

And since it's trivial to change your appearance from Xian to whatever-ian it seems pretty useless to profile in that way. Also, really annoying and alienating for those who happen to look like Xian.

>And since it's trivial to change your appearance from Xian to whatever-ian

Sorry, I don't buy this at all. It is not "trivial" to change your appearance to look like a totally different ethnic group. You seem to have a pretty fantastical idea about the state of today's plastic surgery technology. You might try to hide by shaving and wearing different clothes, but you can't hide what your face looks like or what you skin tone is.

> why is profiling bad in context of airplane security?

Why is airplane security different than other contexts?

> 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country

That's not the real world. There have been white terrorists, christian terrorists, etc. There have been muslim terrorists from most countries. Sometimes they don't look culturally muslim at a glance - maybe we should bring back Fumi-e?

https://en.wikipedia.org/wiki/Fumi-e

> I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.

As an islamic terrorist, you just gave me a fantastic idea about how to beat your security. I won't go into detail, don't want to make it too easy in case some other terror group also figures out how to look like a WASP.

> Why is airplane security different than other contexts?

Because hundreds of lives are at stake, unlike (most) other contexts like screening college applications or work visa applications.

> That's not the real world. There have been white terrorists, christian terrorists, etc.

Are you saying terrorists happen at equal frequencies across all demographics? There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.

Why would you ever stop and frisk a family? Has a terrorist attack ever been carried out by a couple with children in the history of the world? Or even just gender profiling - how many terrorist attacks are carried out by women vs. men? Men should be scrutinized much more frequently than women; it's simple statistics.

> Has a terrorist attack ever been carried out by a couple with children in the history of the world?

Depends on how you define "children". E.g. see https://www.vanguardngr.com/2019/07/terror-attacks-the-inhum... but we're talking 15-year-olds, not 5-year-olds here (and note: 75% girls).

There is definitely an instance of a pregnant white woman trying to bring a bomb onto a plane (albeit unwittingly); see https://en.wikipedia.org/wiki/Hindawi_affair

You are, of course, correct that the frequencies for the various things here are not uniform.

> There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists

In the USA??? I think the opposite is true. How many terrorist attacks have you had on US soil this year, and how many of the perpetrators identified as Christian vs Muslim?

So what, I'm the only one in the US that's heard of a "mass shooting" taking place? Consider thinking before forming opinions.

Almost all of the abortion clinic bombers and shooters are self proclaimed Christians in the USA, as are most white supremacists - responsible for many attacks on synagogues in the USA including the recent Pittsburgh shooting. Also, Timothy McVeigh was targeting the large number of African Americans he saw working or in childcare at OKC federal building to try to start a "race war".

> Are you saying terrorists happen at equal frequencies across all demographics?

Are you aware that the person I replied to described a scenario where 100% of attacks came from one group, and 0% from the rest? He was just as wrong as the straw man of me that you constructed.

> There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.

I bet I know why it strikes you that way. And it's not because of actual real-world statistics based on what's actually happening in America. Check the numbers on terror attacks in the US- you might be surprised at the Muslim / Christian breakdown.

> Has a terrorist attack ever been carried out by a couple with children in the history of the world?

Yes, they have. And if we start waving couples with children through the security line, then yes, we will see it much more.

> how many terrorist attacks are carried out by women vs. men?

Yes. And if that's how we decide to bias our security, then we'll see a lot more women terrorists.

> And if that's how we decide to bias our security, then we'll see a lot more women terrorists.

There are a lot of things that terrorists could do, but don't, in spite of lots of discourse like yours suggesting it would be effective for them. Bruce Schneier held contests for such suggestions, in order to highlight security theater, but also serving to point out that it's not remotely practical to guard against all reasonable threats. Since we're limiting the threats guarded against anyway, it might be better to guard specifically against those that have been experienced, rather than strip-searching grandma ( https://nypost.com/2019/06/06/tsa-humiliated-grandma-with-st... ) out of a pretense that it could be anyone... anyone at all.

>> Why is airplane security different than other contexts?

Presumably because the margin of safety for optimal aircraft operation is a lot thinner, and there's a high likelihood that a catastrophic failure results in everyone on board (usually several hundred people) dying.

In comparison, a regular train derailing (e.g. via a bomb, or whatever) isn't going to be as disastrous.

Edit: why the downvotes?

Bruce Schneier had a series of blog posts on that subject, as part of a debate with Sam Harris. Pursuing a strategy that discounts the effects of false negatives leads to whole categories of failures in identifying risks. It's analogous to debates about medical screening - by narrowly focusing on detection, we discount the negative effects of over testing, which can lead to perverse outcomes where we hurt patients more than we help.

https://www.schneier.com/blog/archives/2012/05/the_trouble_w...

If it were the case (with 100% and 0%), then sure. But that is not the case.

No, not even if that were the case. If you only check people who meet the profile your attackers will start using people who don’t fit the profile. So those percentages wouldn’t stay 100% and 0% for long.

Because it disproportionally burdens all innocent Xians who did nothing wrong.

It sounds like you don’t care about the damage done by searching innocent people. Of course, if you don’t care about that, then just search 100% of all people! Why profile at all?

Profiling everyone is inefficient

So what you're proposing is that we should take the set of countries that have had an airplane terrorist and check 100% of people from those countries, and none of the others? So because once a British man tried to light his shoes on fire to blow up a plane we should specially check 100% of the 3.8 million British citizens traveling to the US per year, but we should check 0% of those traveling on North Korean passports? Your opinion might be unpopular because it's bad.

How about more like your country gets more strikes the more airplane terrorists you've had? So Britain has 1 strike, but Saudi Arabia has probably 20+ strikes. So you are 20x more likely to be searched if you are Saudi Arabian than British.

And if you are from a country that has never had an airplane terrorist, like North Korea, why should you be screened? Maybe you should be profiled for other things, but not terrorism.

For the same reason you try to avoid machine learning models from overfitting. If you train a cats vs. dogs machine learning model but all your cat pictures are indoors and all dog pictures are outdoors, the model may inadvertently learn to recognise indoors vs. outdoors instead of learning cat vs. dog features, and will fail miserably on an image of a cat outdoors.

In your case, first of all, it's not 100%. Suppose 90% of attacks are by Xians and 10% are Yians.

Profiling Xians over Yians might mean that you catch 90% of attacks. Maybe 95% if you search some Yians.

On the other hand, learning to properly identify threats, independent of Xian vs. Yian, might allow you to catch 99.9% of attacks.

This ruling has nothing to do with TSA. TSA does not control US borders.

Fair. Insert relevant authorities instead; the principle is of more concern than the implementing authority in this situation.

"You are of <protected class> X" does not meet the legal requirement of "reasonable suspicion", so while this (potentially) increases harassment based on profiling, it cannot meaningfully increase negative legal outcomes thereby.

It was always CLEARLY unconstitutional. It's worrying it took so long to have it declared as such.

As an American I'm very confused why clear constitutional violations don't warrant any repercussions on the perpetrating individuals.

So I work for a company that deals with medical data, if I violate HIPAA, I don't get to just keep doing it until a federal court says stop and then walk away as if nothing happened. I'm personally held responsible for those violations. Not just my company, me.

Why aren't each of these agents that obviously and egregiously violated the constitution subject to imprisonment or fines for each violation?

The Constitution does not specify punishments for violating it. Congress could pass legislation specifying punishments in accordance with this ruling, but it would not be retroactive.

They did: 42 USC 1983. ( https://www.law.cornell.edu/uscode/text/42/1983 ). It technically only applies to actions by state by state (or local) officials, not federal, though SCOTUS created an equivalent for federal actions known as Bivens ( https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... ). However, SCOTUS has also limited both with the doctrine of qualified immunity. ( https://en.wikipedia.org/wiki/Qualified_immunity )

Interesting. Thank you.

The level that the bill of rights applies to non-residents isn't very clear. The fourth amendment specifies the right of "the people", but it doesn't expand on who this includes. Some interpretations have it as us residents, some have it as all people.

I've usually been fine crossing into the US via Canada as a Canadian, save for some cursory searches. However I don't stand out visibly or audibly. On my second last trip through, I didn't have a precise address that I was staying at on the other side of the country for a road trip, so I was taken aside. While waiting, I talked to a Canadian-German fella who had been molested for upwards of 4 hours on the basis of validating that he wasn't intending to work in the U.S. Apparently they handed him a brochure that effectively said they can do anything they want with his data and so on upon that suspicion. Likewise, my gf made what I thought was a joke that at least we weren't brown or something. At least, I thought it was a joke until I looked at the line up behind us.

Yeah, too bad the border control agents basically do what they want and this case means nothing.

They'll do the same thing, and someone will say "But what about Alasaad v. McAleenan?" and in the small windowless holding room the agent will say "What about it? You want to leave, unlock your phone."

Evidence from an illegal search cannot be used in court.

https://dictionary.law.com/Default.aspx?selected=2087

If a border agent is giving me shit, the last thing I'm worried about is whether or not any evidence they gather is going to be used against me in court.

99.9% of the time, the most negative outcome of this kind of interaction will be losing my stuff, being arrested and held for anywhere up to 24 hours, or being denied entry. For most people, these are a compelling enough reasons to comply with a power-tripping border agent. Despite this ruling, your recourse in such a situation will remain quite limited.

The metric the agent's boss's boss's boss cares about is convictions because that's how they justify their budget "look at all these criminals we're catching". If they can't use the illegal searches in order to convict people of crimes they're much less likely to spend the man hours doing them as routine procedure.

Also, it's not exactly hard for a lawyer to argue that you were coerced into consenting to a search in your hypothetical example. Since the people crossing the border are mostly non-criminals if CPB does use those tactics routinely it will not take long at all for a suitably politically sympathetic victim to come along and precedent to be established saying that is also not ok.

Alas, a metric they just don’t care about is passenger feelings. The power tripping is real, and most people would consider being detained for hours to be a big issue, even if it never even goes to court.

> If they can't use the illegal searches in order to convict people of crimes

I highly doubt they are getting a lot of convictions from illegal searches of devices. The overwhelming majority of convictions they get are from people physically smuggling drugs and weapons and apples across borders. They don't need to unlock your phone to catch you with any of these things. They already have the right to tear apart your car if they think you have drugs hidden in it.

It's a power play, not an actually useful LE tool. The overwhelming majority of the things that you may have on your phone that are going to get you in trouble with border control are not going to put you in jail. What they will do, is deny you entry, and possibly ban you for 5-10 years.

Since entry for non-citzens is a courtesy, you have zero redress in that case. You're never going to get your day in court, since you're not charged with a crime, and you will not be able to contest that the search was illegal.

The only way this ruling would result in any change, is if CBP voluntarily follows it.

Doesn't matter.

They can still do parallel construction, and can still cause you harm just by detaining you, and they can use your behavior in response to abuse as probable cause to justify further abuse.

This argument works against you.

If you were illegally searched, then law enforcement subsequently does parallel construction, defense counsel can easily and persuasively argue that the subsequent evidence is "fruit of the poisoned tree" and would not have occurred without the illegal search. The judge can then throw out all evidence from the parallel construction.

The only way parallel construction works is if defense counsel and the judge don't know that the illegal search ever happened at all - which is very unlikely in the case of an illegal border search.

But they don’t need to take you to court to refuse you entry and put you on the first flight back home...

To add to that, as a foreigner you don't even have a right to an attorney as long as they do not arrest you.

So yes they can just send you back, it is in their capabilities and there's nothing the foreigner can do to counter that decision.

Of course not. Every country has the right to determine who is admissible. There is no right to enter a country where you're not a citizen.

Yes, but the whole point of the attorney is to make sure that the correct laws are applied to you. This ensures that it's the country that's determining who is admissible rather than just a petty tyrant who got out on the wrong side of the bed.

But you're not under arrest or being detailed in this case. Not sure what a lawyer could do in this instance.

Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law.

https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...

You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.

I've been seeing this fallacy a lot lately in these times. If you're ever in this situation: the longer you're held without a lawyer, the higher the liability on your captor becomes. Period. This is where million dollar lawsuits by the ACLU and jail time for corruption begins.

The US was founded on habeas corpus, and it doesn't matter what laws have been written since, or what national threats have been used as an excuse to undermine our inalienable rights. Your duty is to the future people of the US so that their rights to life, liberty and the pursuit of happiness aren't infringed.

My feeling is that this house of cards of government officials skirting the law and pleading ignorance is going to come crashing down in the near future. They know that they are breaking the law. They're just assuming that you will be afraid and let them.

I had hoped that we were past all this and the 21st century would to be free of injustice, but unfortunately we're all going to have to fight just like our ancestors did. But I think that better times really are just around the corner, as long as we stay informed and unified.

Related: congresswoman Nanette Barragan questions Kirstjen Nielsen on asylum seekers being turned away at US border crossings:

https://www.youtube.com/watch?v=ZQ-cURrFLVk

Thank you for sharing this, as well as the link of Nielsen getting grilled by a Congressional hero. I'm inspired. More people need to see this.

There is no constitutional right for people outside of the US to seek asylum in the US.

Asylum seekers are granted refugee status by the United Nations if they meet two broad requirements. The US accepts a limited number each year (notably more than any other country since WW2, however).

Personally, I think that the American Dream was always an ideal to live up to, not something established that only exists in the US. If we deny someone's dignity and rights simply because they aren't a US citizen, then we've embraced injustice and broken our pledge of liberty and justice for all.

I'm not a lawyer, but reading through this:

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

Something stood out:

An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge.

So I think that the "Nanette Barragan questions Kirstjen Nielsen" video I linked shows that the border crossing agent committed a crime when she turned away people seeking asylum. She should have either: a) granted their asylum or b) admitted them to go before an immigration judge.

From there, the border crossing agent should be tried in court for her actions. In which case, she can either say that she is guilty and take the penalty, or that she was following orders and then the next person up in rank should go through the process until it reaches Department of Homeland Security Secretary Kirstjen Nielsen. In which case, she can accept responsibility, or claim that she was following orders from the president.

It looks like Kirstjen Nielsen resigned on April 10, 2019, a month after the March 2 video:

https://www.cbsnews.com/news/kirstjen-nielsen-resigning-dhs-...

We're seeing this a lot lately, where high-ranking officials are skirting the law, then resigning to shield the president. That's not how it should work in America.

I say all of this because I imagine if I was a border crossing agent, and I denied asylum to someone outright, then found out later they died because of my actions, I'd likely get PTSD and never recover. At the very least, I don't know how I'd be able to sleep at night.

Which is why I think I'm right as far as the spirit of the law, even if the letter of the law doesn't match up with what I'm saying.

> I've been seeing this fallacy a lot lately in these times. If you're ever in this situation: the longer you're held without a lawyer, the higher the liability on your captor becomes. Period. This is where million dollar lawsuits by the ACLU and jail time for corruption begins.

This itself is actually the fallacy. Take a look at this:

https://www.npr.org/sections/thetwo-way/2017/08/01/540903038...

> Watson was correct all along: He was a U.S. citizen. After he was released, he filed a complaint. Last year, a district judge in New York awarded him $82,500 in damages, citing "regrettable failures of the government."

> On Monday, an appeals court ruled that Watson, now 32, is not eligible for any of that money — because while his case is "disturbing," the statute of limitations actually expired while he was still in ICE custody without a lawyer.

This is astounding. It seems that there is actually an incentive to keep a person claiming to be a citizen imprisoned, since if they keep them imprisoned long enough, then any financial debt owed for the injustice will magically disappear thanks to statute of limitation.

"Flessner, Watson's lawyer, says the ruling "turns false imprisonment statute of limitation claims kind of on their head."

It means a person in custody for an extended period of time would have to file a false-imprisonment claim while detained, "before it's been determined that they've been falsely imprisoned," he said. "I mean, this is not only applicable to immigration cases ... there's lots of citizens that are falsely or wrongly imprisoned."

Thank you devicetray0, I hadn't heard of that case, I agree with tropdrop that that is _astounding_.

A few thoughts comes to mind:

* Corrupt public officials are hacking our legal system through thin cracks like differences between citizen and non-citizen rights and the statute of limitations to commit injustice.

* This case needs to be appealed and go all the way to the Supreme Court, because it's pretty self-evidently an infringement of Davino Watson's rights.

* The Supreme Court as it stands now would likely make an unjust decision in that case, because it has been packed with judges that lean more towards libertarianism/corporatism than justice. Mitch McConnell blocked Obama's nomination of Merrick Garland, which opened the door to Neil Gorsuch and Brett Kavanaugh: https://www.vanityfair.com/news/2019/05/mitch-mcconnell-supr...

Kudos to the ACLU and the EFF for standing up for what is right.

I support this ruling very strongly, and am super-glad it went the way it did.

But at the same time, if it were as obvious as just quoting the constituion, it wouldn't have made it to the Supreme Court in the first place. The SC decides cases that are difficult, not cases that are easy.

Again, I believe this is the right decision, but it was no layup.

This was just a federal court, not the Supreme Court.

This didn't go to the Supreme Court. A district court in Boston heard this case.

There are many obvious cases that have made it to the Supreme Court. All it takes is a pig headed state or federal attorney general who insists on trying to uphold oppressive laws.

Just like how FISA courts have granted NSA access to whatever they want because “the person will never find out their privacy was violated, therefore it’s not that big of a deal”.

This is what the Yahoo attorneys were told in one of the few partially declassified FISA court hearings by the judge when they tried to push back on a sweeping warrant, which I believe involved full emails/information for not only a group of individuals but every person they talked to 2 hops, which quickly turns into thousands of people and companies.

Not exactly correct, the Supreme Court still has to accept the appeal onto its docket. Many of times, the Supreme Court will disregard the case and leave it to the lower courts to hash out.

Your argument is poorly formed this was an extremely obvious case of reading the plain language of the law as already quoted. Which court it arrived in isn't proof positive of the complexity of the law. Its proof of how irrational and diseased our system of government is.

Perhaps you would like to advance an actual argument insofar as abusing access to portable computing devices to virtually riffle through an individuals entire life without benefit of court or even articulable suspicion? This is an intrusion into an individuals privacy worse than anything the framers could have imagined justified only a by a right to search that exists to discover contraband THINGS not contraband thoughts.

Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.

>Your argument is poorly formed this was an extremely obvious case of reading the plain language of the law as already quoted.

It's not at all obvious. For example: it's "obvious" that the constitution applies to the United States. Before you pass through the border, you are in a place that is NOT the United States. It's definitely not obvious that the constitution applies to places outside the US.

> Perhaps you would like to advance an actual argument

> insofar as abusing access to portable computing devices

> to virtually riffle through an individuals entire life

> without benefit of court or even articulable suspicion?

You seem to think that I support a side I don't. Cases like this don't survive motions for summary judgement if the one side is completely implausible. This case either survived a motion for summary judgement, or the "obvious" side didn't make such a motion.

So if you think it is completely obvious, you should take it up with either the judge that denied the motion, or the lawyer who neglected to bring it.

> Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.

Any law that forbid it was unjust, and it should have been fixed long, long before Obergefell. But just because a law is unjust, doesn't mean that it is unconstitutional on its face, (cf, civil asset forfeiture--manifestly unjust and currently legal in many circumstances) This is a mistake many court-watchers make.

It is a very safe bet that a 1950's court would have gone the other way on Obergefell, so on a plain language standard kind of fails. At some point, society gained a better understanding of what justice is and is not--and that is a great thing. But if the plain language didn't change, then the appeal to plain language isn't what gets us there. Rather, our understanding of justice did.

It is "obvious" only if you ignore centuries of customs practice and the word "reasonable" in the text. The 4th amendment protection from searches is not absolute.

Searching a digital device and further remote databases it has access to is more akin to going to the persons home and riffling through all their papers and interrogating their friends and family than it is to a traditional customs search.

It's reasonable to search for harmful or illegal materials entering the country. You have a compelling interest in the safety of the citizens and this is likely your one chance to reasonably interdict them before they can cause harm to the citizenry.

No such special circumstance exist for information. Information flows freely and securely over most of the world and interdicting it at the border is laughable. Once you leave behind existing powers and arguments for same you are left making an argument for new powers undreamt of by the founders.

You can argue for example that being able to access all the private words and documents of travelers allows you to make better decisions as far as whom and what ought to be interdicted or examined. This might even be a compelling argument for you. It is however not a continuation of centuries of practice but rather entirely new power that ought to be enumerated in new laws if it is to be granted.

If we insist that we react to the changing landscape provided by technology solely by interpreting what 18th century individuals wrote we ought to interpret very conservatively insofar as grants of government power. If such new powers are needed let the peoples representatives write the required laws.

OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.

> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"?

The same thing that stops all tyranny. A vigilant and engaged citizen body.

Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.

"The same thing that stops all tyranny. A vigilant and engaged citizen body."

Because I'm interested, what would be the top three situations where that happened that come to your mind?

You may recall a certain war faught against the British...

The UK was a tyranny at that time? How would you define tyranny then?

A general definition is "oppressive power."

A tyranny must be recognized. See: https://en.wikipedia.org/wiki/American_Revolution

"The Continental Congress declared King George a tyrant who trampled the colonists' rights as Englishmen..."

If you recognize a tyranny but do nothing, you stand to receive further oppression. Consider the case of the PRC. The CCP is tyrannical toward those they rule; we plainly see this reality from our perch of liberty. However, unless the Chinese people recognize the tyrannical nature of the CCP, they'll continue receiving oppression. Making this realization harder is the PRC's surveillance apparatus and the population's indoctrination. I wish them luck.

So what you say the main thing is, when I declare you a tyrant you are a tyrant.

And because they suppressed (non voting, poor) people in the UK didn't declare their king a tyrant it wasn't one for them.

Humans can recognize tyranny but never do anything about it. Bullying, abusive relationships, and slavery are some examples of this reality. Once you recognize the form of tyranny, you can put a name to it and act.

I don't know the exact reasons people put up with tyranny. I suspect every situation is somewhat unique. However, answering that question would allow many future harms to be prevented.

The American revolutionaries declared King George III a tyrant, but that couldn't be the end; open rebellion would mean certain harm or death. So, they acted. They made a case for taking up arms against the crown. They then resolved to become independent (found in the Lee Resolution/"Resolution of Independence"). Two days later, they declared independence. And they fought. Note, though, that the Revolution required the recognition of tyranny.

<noirony>I would really be interested in case where 'A vigilant and engaged citizen body.' stopped tyranny.</noirony>

Do these suspicions require some sort of preliminary-evidence of those suspicions before acted upon?

Reasonable suspicion must be based on rational inferences from specific and articulable facts, as opposed to just a hunch.

Sadly I fear officers in this scenario will probably just find a "furtive gesture" or "smell of marijuana" equivalent to point to.

Edit: Oops. Fixed a use of "probable cause" where I meant "reasonable suspicion".

IANAL, but my rough impression from the opinion is kinda. It seems like the reasonable suspicion can emerge entirely from the interaction itself, but that it should be based facts/reasons the agent(s) can articulate.

I found the section titled "7. Reasonable Suspicion, not Probable Cause, Applies to Both Such Searches" on pages 33-38 of the actual opinion (embedded on https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...) provided good background on this.

Later on page 46 there's a more succinct statement.

The judge is evaluating one element of the relief the plaintiffs sought--that the agencies be required to expunge data copied during a search which, per the ruling, is unconstitutional. More specifically, the judge is addressing one stated reason for seeking that relief--concern that data obtained unconstitutionally will leave them forever flagged for extra scrutiny.

> "in the future, whether information has been retained from prior searches or not, agents must be able to point to specific and articulable facts for reasonable suspicion to believe that Plaintiffs’ electronic devices contain contraband, which also addresses the concern about any likelihood, greater than the general public of U.S. citizens returning to the U.S. borders, of being subject to a non-cursory search."

So we're doomed, then.

Even the headline of the article suggests otherwise.

Suing any LEO is hard. Patriot Act covered this: https://www.youtube.com/watch?v=km4uCOAzrbM

I agree donating to ACLU, EFF and similar orgs is our best option. Most of us do not get prosecuted unjustly, but we need to pool resources to defend those that do.

Ask them to explain what their reasonable suspicion basis for wanting to search your phone is. Without reasonable suspicion it's, by definition, an unreasonable search.

To add onto this, unreasonable doesn’t mean “unfair”. It means “backed by reason”.

Like in a jury case, reasonable doubt doesn’t mean “a small level of doubt is acceptable”. It means that “aliens made me do it” is not sufficient to counter evidence.

They don't have to articulate their reasonable suspicion to you, they need to articulate their reasonable suspicion to the court.

And if they tell you stuff it? What are you going to do.

The best approach is to know your rights, remind them of them, then let them do what they are going to do.

Bad searches get solved in court, not at the time of the search. You may get lucky and have them back down if it's clear you know they have no right to search, but I wouldn't bet on it.

“suspicionless searches” refers to searches without reasonable suspicion; absent particular evidence providing grounds for reasonable suspicion particular to the searched individual, any search would remain “suspicionless” as the term is used in 4th Amendment law; the test has both subjective (was there actual suspicion) and objective (was that suspicion reasonably grounded) elements.

This has to be the top comment in this thread. If you think about it why does anyone have to follow the law? Because there are consequences for when they don't. In this case, as my parent OP correctly states, there's legal precedent and case law on what a reasonable suspicion is. The agent should be able to go to a court, in front of a judge and be able to state what made him/her suspicious of you. If they can't, all evidence they collected during that search will be thrown out. That could basically kill the case. That'd be the motivation for the agent to at least come up with a plausible story on why they want to search you.

Hopefully you don't need to visit grandma, the onus is now on you to defend your rights. Like Ghassan and Nadia Alasaad and the nine other people who resisted similar requests from the government.

Presumably this gives you a much stronger case if you then decide to sue. If enough people do that, it starts to become a deterrent.

Nothing. What happens is if the cause for the search was insufficient, the case gets kicked out in court.

I though the "reasonable suspicion" needs to be documented and so is the search. Otherwise, this law might reduce the number of searches but not the abuse of it.

And that is why I donate to ACLU every month.

A tiny bit of sanity returns to the US borders.

Think I'll give it a miss for now though. The entire border crew seems like a law onto themselves.

e.g. last time - got hassled about being a dual citizen (neither US). But then while standing in a queue for a metal detector (as per agent instructions) another agent pulls me out of the queue and says I don't need to do this go around there. Rest of epic long queue proceeds towards detector/search as if nothing happened...just me.

Very much doubt there is any rhyme or reason behind what's happening at the borders beyond massive power trips.

IANAL, so can someone help me understand: How is this the final say if it's out of a court in Boston? Isn't that only one circuit?

The US has common law, so I believe this ruling becomes precedent unless it is overturned.

It's not even a circuit yet, this is a district court judgement. It is not a final say.

Hypothetically if it weren't appealed would it be the final say?

I'm not sure what effect this judgement even has. The court declared that the search policy was unconstitutional but denied the request for an injunction, so I think right now there's nothing preventing the ICE from continuing to search devices even in that district?

Only in the same federal district that issued the ruling. And even then its not binding. A different judge in the same district could come to a different conclusion.

It is not necessarily the final say. DHS may turn around and challenge the ruling which may then be picked up by the Court of Appeals for further review. However, the Court of Appeals does not have to review the case and even if they did, they very well may agree with the ruling from the district court.

So as a practical matter, is it likely border officials will honor the ruling?

As with virtually all govt authority figures whose 'authoritah' gets constrained by pesky constitutional 'noise', they will adopt the minimal appearance of compliance that their dept lawyers estimate they can get away with. I wish I was kidding.

It's definitely a good ruling to have on the books but it could very well just end up being a checkbox matter to have a pretense of "suspicion" (ie "this person appeared nervous").

Depending on the jurisdiction of this district court the DHS might even decide that it doesn't apply outside that jurisdiction until a higher court rules on it.

Well, I'll be more tempted to fly into logan, at least for now…

But yeah, all hangs on what is "suspicion" (or what passes for it in practice), compared to say a targeted op or warrant provided by a court (even if its one of those secret courts like FISA).

Aren't rulings in one circuit often used as arguments in another circuit?

Obviously it's not the final word unless it comes from the Supreme Court.

IANAL, but AFAIK attorneys can (and often do) cite a different court's ruling as support for their argument but if the cited court is not above the current court and in the same 'branch' of the tree, the current court isn't bound by it.

That's why supreme court rulings are such a big deal. They are the ultimate 'root' authority.

They'll probably now resort to kindly asking to view the contents of your phone and laptop, and when you don't give it to them, they'll take that as the "reasonable suspicion" they need to force you.

The courts decided good, but in practice it wont matter at all.

Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? Doesn't matter if it's constitutional or not if you're in a no-constitution zone.

Hmm. Has the Supreme Court ever ruled that the "special Constitution zone" was constitutional? Because, on its face, it looks like it's not...

> Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border?

This is specifically about border searches, so, insofar as such a zone exists (the description is hyperbolic and more useful for motivating activism that any kind of analytical application), yes.

> Doesn't matter if it's constitutional or not if you're in a no-constitution zone.

There is no such thing. There is an executive-asserted 100 mile zone (statute only says a reasonable distance, and AFAIK courts have not ruled on actual boundaries) from the border in which federal officials can conduct warrantless searches of vehicles to identify people without legal permission to be in the country.

> There is no such thing.

No, you admit there is such a thing, you just call it something differently. We're clearly talking about the same thing, whatever we choose to call it, it exists.

What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]", I call a "no Constitution zone". It's clearer.

As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation, and help people understand the crazy state of people's rights at the border, or dress it up in business language like a government-sanctioned PR release and lose a listener's interest immediately.

Someone probably learned about the zone from this very thread, which wouldn't exist had I not been provocative. And is it really provocative to point out that something's not right?

> What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]”

The editorial insertion is not correct, and is the source of the problem. Neither the statute (which is ambiguous as to exact geographic extent) nor the executive interpretation asserts the inapplicability of the Constitutional protection against unreasonable searches within the zone, it authorizes an extremely narrow category of warrantless searches (the courts have consistently held that warrantless searches can be reasonable, and that statutory authorization for a sufficiently narrow and appropriate purpose is a significant factor in favor of finding a warrantless search reasonable; there is no serious debate over whether what the statute seeks to authorize is Constitutionally appropriate and within some geographic boundaries, the entire debate, after you get past the hyperbolic posturing, is over two questions: whether 100 miles is more than is reasonable, and whether the failure of the statute to explicitly say a reasonable boundary impermissibly delegates the boundary-setting to the executive.)

> As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation

It's not a good approximation of the situation, as taking it as even an approximation suggests things like your upthread misapprehension that it would be germane to a search of data on devices rather than a search of vehicles for unauthorized immigrants.

Look, I agree with what the ACLU is seeking to acheive with it's hyperbolic portrayal and even think that most uses that the ACLU makes of that portrayal are warranted for that purpose (and I think both that 100 air miles is too great a distance and the failure of Congress to set explicit boundaries makes the statute unreasonable.) But it's not even remotely a good approximation of the actual situation, except perhaps in the narrow context of discussion narrowly focussed on immigration enforcement.

> the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment

So, does this not apply to people flying domestically?

I don't have a source at the ready, but my understanding is that the existing law and/or case law determined that traveling domestically entitled one to such protection. Various federal agencies have determined via rule making that such protections do not extend to international ports of entry/airports for reasons of national security. Those determinations are what have been struck down in this case.

No. TSA doesn't search smartphones and laptops, and the searches they do apply to everybody. When you search everybody equally, courts have ruled it's not a 4th amendment violation. See drunk driving checkpoints.

IANAL, but I'm reading the opinion itself and I've found it pretty accessible so far.

If you find this issue interesting, you may find reading at least part of it rewarding. The ACLU has a PDF embedded on this page: https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...

Sections B-E (pages 14-47) are the most useful.

Looks like TSA/Customs is about to get a lot more suspicious. All of these travellers, without exception, look shifty as hell.

> A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications.

(The following (what I say) does not mean to imply that I don't agree with the ruling:)

I don't get why this is a factor at all or even relevant. In particular the 'despite her informing the officer'. Why would the officer be in a position to determine a) If the plaintiff is even an attorney to begin with b) If the plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to only make a comparison) in order to prevent the phone from being searched because it might in fact contain contraband? Very convenient, right? Why in particular would the lawyers rights (because they are an attorney) be greater than any ordinary individual? Further why would it matter if an officer saw the attorney client information to begin with? The assumption is that anything they (the officer) sees would have to be kept private no matter what it was. Lastly could someone (a business person) then assert that there was material non public information on the phone and that as a reason to not search it? The point is if they did see it the officer could (in theory) trade on that information. Where does this stop?

They can image my mobile device in, what, 5 minutes? Why hold it for days or weeks except as a form of coercion? You land and need your phone to retrieve the phone number for friends or family, to order rides, create and manage accommodations, and find directions. Taking someone's mobile device leaves them stranded.

They can only image your device if they can connect to it. I don't know what Android is like in this regard, but an iPhone won't open up the USB interface to a foreign device until it has been unlocked and the device has been trusted by entering the passcode, which keeps some power in your hands.

If they just take the device off you, your power is taken away in a different way, but it's still taken away from you.

I'm not an expert. From what I can tell on my phone, USB interface isn't available unless developer options are first enabled, and then USB debugging is enabled, and the phone is unlocked, and then once an initiate USB connection is made the user needs to acknowledge the host USB trying to make a connection which requires the phone is unlocked to see and acknowledge the request.

So, offhand I'm not sure to what additional degree a user is at risk if they have developer options and USB debugging enabled, if they're also unwilling to hand over their unlock code. Obviously if neither debugging nor developer options are enabled, they can be trivially enabled once the unlock code is entered.

Solution: Go through border control with blank phone/laptop and restore from backup later.

That's workaround - not solution.

It’s a solution if it allows you to get through border control without border guards inspecting your data or imaging your phone...

Is this what the EFF, ACLU, etc. actually recommend these days? Or do they want regular Joe Citizen to be willing to subject themselves to duress by customs?

If most people erase their devices, it's a kind of giving up. Accepting data loss (hopefully temporarily, but not everything is stored in the cloud, e.g. SMS messages, at least in Android phones with the original texting app) is punative. And disproportionate. And resets are a PITA for non-technical people. As a work around to avoid being harassed, to me it proves we've lost the privacy fight.

I don’t speak for the EFF or ACLU so ¯\_(ツ)_/¯

Speaking of disproportionate...I think it’s disproportionate to surrender my phone to DHS/ICE for unwarranted inspection in order to enter the country.

I was under the impression that going through with blank phone/laptop would in itself be considered suspicious. Is that not the case?

This is a US District Court ruling; I think it's safe to say it's going to be appealed and find its way to the USMC. It's hard to imagine the executive branch of the federal government giving up all that power.

We didn't need a court to tell us the obvious, but this is nice to hear.

Constitutional aspect aside, it seems like such a pointless / resource waste of an activity. It seems highly unlikely to dig up much of any value.

Good. Also given there is no one running Homeland Security I wonder if it's even likely that this will be pushed to the SC.

Don't confuse the lack of a Senate-approved director with a lack of someone in power at a government agency. There are very much people running the Department of Homeland Security.

Next stop, how about letting a foreigner visit the US for a week without having their fingerprints taken.

How about letting foreigners change airplanes without treating them like they plan to visit or be illegal immigrants? Canada, UK, I'm looking at you guys too.

Last time I changed airplanes in Canada: "How long do you plan to stay in Canada?" "Well my flight leaves in three hours." "Are you bringing any nuts or fruit in to Canada?"

So will the CBP be ordered to destroy all the images they made of devices searched at the border?

No.

> As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. [...] Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” [...] even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. [...] In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information

https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.h...

Forgive my ignorance, but will this change anything at the border in the immediate term?

How are they going to determine whether they have "reasonable suspicion"?

The the authoritarians will simply move the goal post of what is suspicious.

There is hope for the US, hard to believe with the current state of affairs.

You mean pulling out of the various wars? Or the awesome economey? Or just the BS media?

Yes.

They let the border pigs keep all of the illegally and coercively stolen private information from the thousands or millions of phones they've already imaged (under the basis of "it was believed to be legal at the time"), so not really.

Third-party doctrine lets them silently access your emails and IMs and texts at rest, and Section 702 as well as creative definitions of "access" let them sniff them all in transit. Privacy from the fed snoops is 100% an illusion; the entire population is under continuous realtime monitoring.

This border search thing is an important but ultimately minor victory; total surveillance is the name of the game in the United States now, and likely will remain so until the country no longer exists.

Strong encryption is the only defense we have against mass surveillance, but sadly most people don't care enough about their own privacy (much less that of others - the classic "What do you have to hide?") to demand it in communications products and services, so the majority of personal networked communications happens in ways that are extremely simple for the corrupt federal government to collect, analyze, and permanently store.

I think you are preaching to the choir a bit, given the HN audience. I suspect that the continuous realtime monitoring that is done by private corporations is as bad or worse. Maybe you don't win the war all at once but one battle at a time.

> I suspect that the continuous realtime monitoring that is done by private corporations is as bad or worse.

On the whole, governments have run a lot more prisons, forced labor camps, and concentration camps than private corporations have.

I am not worried about the collection of the data. I am worried about what it will be used for in ten, fifteen, twenty years’ time.

This is a District court. A nice victory, but hardly "major".

It makes me really sad that it took a court case to decide this.

Drafting a law would be worse. Smartphones have only been around for 12 years, so no good law could have been passed because we did not fully understand how the smartphone would shake out.

It took time because society needed to reckon with the newfound implications brought by such profound technological shifts.

Freedom doesn't come from a drive-thru window. You have to wait at the table until the issue has cooked.

What constitutes “reasonable suspicion” in this case?

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

Does "travellers" include non-US citizens?

I'm not a lawyer, but afaik the Constitution protects equally citizens and not citizens

Should've gone with your first instinct. They cannot arrest you for not unlocking your phone, but you will be denied entry, forever.

Everyone knew that before and it didn't stop anybody. It won't stop now either. Violating the Constitution with impunity has become standard.

Good to see common sense prevailing

Best thing is to just not have anything to do with the US of A. Death penalty, loaded guns everywhere, a general attitude of being the masters of the world which leads to things like suspicionless searches. No, thanks. I think the best would be if more people would actually stop dealing with the USA. Its becoming a trend. I once turned down an invitation to a conference in Hawai, and guess what, I was not alone.

As a european who is not always very fond of the US, this is ridiculous, and lazy thinking.

The amount of generalization and black and white simplifications to come up with such a thing is impressive though.

He is far from being the only one to have this feeling. I once intended to even base my business there, but at this point I do not want to have anything to do with this country. This is not lazy thinking, this is exactly the opposite. This is finally catching up with reality and moving beyond hollywood movies and the American dream propaganda.

Your comment is devoid of argument.

So is yours.

Indeed, because I'm not arguing any position in the debate, but offering an observation whose truthfulness anyone can judge on their own.

The parent, on the other hand, was responding to someone in an attempt to prove them wrong. By not saying anything that engaged with what the grandparent said, they failed at that.

So I know what I am, but what are you?

I wish the US would do better too. But the US is not that bad. It's ranked 17 on the human freedom index, along side Sweden.

Just saying, where do you live?

(I'm not American, and I wish they did better, but it's not that bad)

And yet, in this very thread there are discussions, presumably by Americans, about whether human rights “afforded” to people only apply to citizens or all humans.

They are literally arguing if “people” only means US citizens.

The Bill of Rights affords citizens protections from their government. They weren't written as inalienable human rights. So it has long been debated whether those protections are owed to non-citizens.

Yes, those are exactly the types of disturbing discussions I was talking about.

> We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The USA was founded on the premise that human rights applied to all. When any governing entity no longer respects those rights, it's time to turf the bums out and start again.

The current government of the USA, at the urging of a self-selected elite among its supporting citizens, believes those inalienable human rights only apply to a select few. These are the conditions outlined in the Declaration of Independence as reason to overthrow the current regime.

There is well-documented historical precedence. Tread lightly.

While I agree with your point, I need to point out that the Declaration of Independence generally isn't used in case law.

It seems like it would provide quite a bit of relevant background to originalist interpretations of the constitution, and those are fairly common.

Originalism as a legal doctrine means looking at the original meaning of words in the Constitution. It explicitly rejects as too wishy-washy trying to figure out the intent behind laws from other writings and using that to decide what they mean.

> Some people would give the Declaration greater weight, as a reflection of values that inspired the Constitution, and thus of values that we should read into the Constitution even if they are not expressly there in the Constitution's text. But I am skeptical. The two documents are very different. The Declaration is fundamentally a rhetorical document, meant to persuade the world -- and more immediately and significantly, to persuade wavering Americans -- that the revolutionaries' cause was just. The Constitution is fundamentally a legal document, meant to spell out a form of government to which Americans would be bound, and by which that government would be bound. Perhaps the Constitution implemented the rhetorical ideals of the Declaration, but perhaps it didn't (and perhaps it was the worse for that). The way to see if the Constitution implemented the ideals of the Declaration is to look at the Constitution's text, not to assume that it did.

https://originalismblog.typepad.com/the-originalism-blog/201... (Note: Blog by UC San Diego prof.)

> The USA was founded on the premise that human rights applied to all.

I agree with you, but when those words were written, slavery was still one of the cornerstones of the American economy and women didn't have the right to vote.

Should the protections afforded by the constitution apply to all people? Of course. But legally, the US has a longstanding tradition of denying certain rights to certain people.

Slavery and suffrage were eventually fixed. perhaps it's revisionist, but I'm told most founders wanted it one way, and wrote non binding language such as this, while punting legal battles to actually implement these principles in favor of diplomacy.

> When any governing entity no longer respects those rights, it's time to turf the bums out and start again.

Interesting that you read it that way. I read it as when YOUR governing entity no longer respects YOUR rights, it's time to turf the bums out and start again.

Yeah, everyone has the rights, but not everybody has the same government. The People are not random people, they are citizens.

That document declared "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights"... which part of that says only some men are created equal, or only citizens were endowed by their Creator, or that maybe some Rights are inalienable?

I see no room in the wording of the founding statement of the USA to read into it that it's OK for an administration to treat some people like shit as long as it's only certain groups. I only get the sentiment that if the administration treats anyone wrong (for a strictly definition of wrong), it's time for them to go.

As soon as it becomes OK to discriminate between those with inalienable rights and those without based on privileges like "citizenship" then it becomes easy to redefine or revoke such privileges at will. There is plenty of historic precedence for just that. The only legitimate reading of 'all' is all, not some or a few or all citizens.

No, everyone has the rights. The point isn't that only citizens do, the point is that only citizens get to say how their government functions. If you're a citizen of another country, you get to say how THAT country is governed, but not mine.

And thus slavery was legal.

Do you think slavery should be legal?

Really I am pretty sure that they do apart from oddities like restriction son roles like the president

Every country in the world makes a distinction between rights/privileges/protections they afford their own citizens vs non-citizens within their borders.

Canada's Bill of Rights does not restrict those rights and protections to citizens except for political rights such as running for office and voting. The right to due process in particular, is considered universal in Canada.

Other countries take a similar approach to rights.

Yes, there exist rights that Canada recognizes in everyone, just like there are rights the US recognizes in everyone. There are also rights it recognizes for a smaller class of persons. Just like I said before.

The US constitution makes the same delination, with the majority of the document outlining the limits of government power. It is only because some people want to strip others of constitutional protection that they argue about who it covers. Everyone gets freedom of speech, freedom of association, due process, etc.

We are running concentration camps with 70000 children currently. We elected an almost-Nazi with routinely espoused almost-Nazi views who had a total information awareness intelligence apparatus at his fingertips. We have demonstrated legal facilities for "enemy combatants", "extraordinary rendition", offshore torture, treating an american citizen as a terrorist so they can be denied their constitutional rights.

Most of that is from the Bush administration. The parent's declaration would have been slightly paranoid in that regime, but with this one, it is arguably a bit mild. The statement should now be that no country should be dealing with the USA.

The parent's sentiment might have been somewhat outrageous

This comment is as mindless as the generalisation it's applying to an entire population.

It's more about American governance than anything else.

This is not about the US citizenry but about the state.

If you can't actually see how the American state (not population or country) has devolved into something to be concerned about over the last 20 years, perhaps you're not looking hard enough.

Domestic politics and policies are cruel and divisive, international policies have regressed dramatically (i.e. they've pulled out of major international treaties around arms and climate and trade).

In the eyes of the average world citizen, America used to export an aspirational culture, now they export greed, cynicism, and technological dystopia (and I don't mean Facebook, I mean mass surveillance and drone warfare).

They are of course not alone in all this, but they are the biggest and most powerful country on the planet, so they lead by example, and it's becoming a shittier example every year.

So yeah, as an outsider looking into the US, I don't find that comment mindless at all.

The United States government is legitimized by its people. While I highly disagree with the ‘America terrible’ feeling your argument does not hold.

I’d instead say that it is legitimate as long as it continues to align with and perpetuate the interests and values of its people. To that end, if our government has strayed from that in significant ways, it delegitimizes itself and we, the people have an obligation to ourselves and others to rein it in.

America, the people, is still a source of pride for me but one can hold that view and still see significant flaws with how our government acts on our behalf - or despite it.

> If you can't actually see how the American state (not population or country) has devolved into something to be concerned about over the last 20 years

I find this timeframe strange. Although the US has had major policy mishaps in the last 20 years (Iraq war, NSA surveillance, etc), imo policy is still better than at any other time in America's history.

What timeframe do you think had "better" policy?

The fact that you refer to the murdering of a couple of million Iraqis as a 'policy mishap' just underscores the other guys point.

... and doesn't actually answer the guy you're replying to at all.

Mind you, I'm not saying that he's right. I'm just saying that you didn't actually answer him.

Q1 & Q2 2001.

After that began US's relentless creation of the modern, comprehensive surveillance state. It is the largest possible government and will effectively repress our great-grandchildren and theirs.

As an American, I advocate some isolationism to protect other countries. The reason is that other nations are proving grounds for the future mistreatment of US citizens. Protecting other countries now protects future Americans.

>This is not about the US citizenry but about the state.

So "stop dealing with the USA" is supposed to mean stop dealing with the US government? I don't think so.

Kind of hard to live here without dealing with the US government. Even harder to visit here without dealing with the US government. (The US government's actions when you cross the border was the original topic, after all.)

Yes - on a personal level, I tend to avoid travelling to the US. For the same reasons that I avoid travelling to most of the Middle East or China.

I found my time in China rather pleasant. However, I am aware of other less positive stories about traveling in China.

> I found my time in China rather pleasant.

Yes. As are some places in the Middle East. And so so many places in the US are great too, of course. It's just that the attitude of those states (and the most extreme parts of the population) towards foreigners make most trips not worth the risk.

Middle East I can understand but what's your beef with China?

Not AP but given my own government is unable to protect its own citizens travelling there im not about to risk a transfer through there. It's unlikely anything would happen but given my work I'm almost certainly on a list there and I'm simply not willing to risk it.

https://mobile.abc.net.au/news/2019-10-24/china-hostage-dipl...

https://www.sbs.com.au/news/yang-hengjun-australian-writer-d...

But you realize that ordinary people don't have a large choice in this right? We can vote and vote and vote, but until the majority wins, and helps facilitate change, we are stuck with how people perceive our country as well as some of the harsh realities of living here.

I feel like you insulted me for the actions of my country. Isn't this how racism and hate is spread? I'm now not worth knowing and should be shyed away from because of my country...

Edit: I think the downvotes are a bit uncalled for. The OP said people should avoid the US because of its practices. The OP didn't say ANY country with these practices, China, Middle East, North Korea, Russia. It was a very general statement that has is heavily opinion driven.

You’re being downvoted for your “whataboutism”, being insulted and for comparing their mild comment to racism and hatred.

If you turn up in another country, sure, I have no problem interacting with you (assuming that you don't support the policies of your state). If I travel to the US though, I'm just as powerless against the state as you are - in fact, even more so - and so I'll avoid doing so.

I think most reasonable people know about North Korea, etc. That's not a benchmark

That whole attitude of being "the greatest country in the world" always seemed so peculiar to me. I get that all countries tend to be patriotic and embellish themselves but that just sounds a bit ridiculous and antagonistic. For a country established by immigrants and populated by immigrants, you'd think the national identity would be a bit more versatile.

Instead, it's been homogenized to the point where people have to fight their own perceptions to reclaim their culture and identity. It's a shame, really.

Death penalty exists, but it is rare.

Loaded guns exist, but they are not common. Most of them are in the hands of well trained people who are harmless unless (in the unlikely event) that deadly force is the only way they can get out of the situations.

The US has its problems, but you have been listening to propaganda by anti US forces (you might want to figure out who they are and what their agenda is!) if you think either of the above issues are worth a worry.

This should be the top reply.

Most of the points in this post are not accurate. There are more guns in civilian hands here than there are people.

"The Small Arms Survey stated that U.S. civilians alone account for 393 million (about 46 percent) of the worldwide total of civilian held firearms" - https://en.wikipedia.org/wiki/Gun_ownership

"Most of them are in the hands of well trained people who are harmless" I am not sure what you base this on, you don't need any training at all to buy a gun, just ~24 - 48 hour waiting period and if you have a concealed carry permit, you can generally walk out with the gun after paying. Depending on the state, training to carry a concealed weapon can take from 2 - 8 hours. Some states don't even require training if you want to open carry your weapon.

In 2010 there were ~20,000 suicides involving a gun. In 2016, there were 11,004 gun homicides. The US leads the world in mass shootings, especially in schools. Accidental gun injuries are most common in homes where guns are kept for self-defense.

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

Getting shot by the police is a leading cause of death in young male people of color.

"you might want to figure out who they are and what their agenda is"

Indeed.

You can buy a gun easily enough. However the people who actually do that tend to be enthusiasts who are well trained. To have a loaded gun on your person you need to be well trained in most states.

Again what do you base this on? I got a concealed carry permit after a 2 hour training class. During this class I had to fire a total of 6 rounds at a target ~15 feet away. I was not given any training on how to use the weapon, only a primer on the laws about when I can shoot someone. At no time did I have to demonstrate that I could safely bring my weapon from concealment to ready without shooting myself in the leg or a bystander. I can guarantee that of the 20 other people in my class, most of them did not meet any definition of "well trained".

"However the people who actually do that tend to be enthusiasts who are well trained" - based on what? You can buy a gun even if you have never fired one before.

Thirty percent of U.S. adults say they personally own a gun, while a larger percentage, 43%, report living in a gun household. - "https://news.gallup.com/poll/264932/percentage-americans-own...

Is your argument that 43% of US households consist of well trained enthusiasts and the this is a small number?

> At no time did I have to demonstrate that I could safely bring my weapon from concealment to ready without shooting myself in the leg or a bystander.

It's not hard. If you pull the trigger, a bullet comes out (if the safety is off and if there is one in the chamber). So, simply don't pull the trigger until you are ready to fire a bullet. Most (if not all) people that buy guns, you included, understand this basic concept.

It's not like guns require massive amounts of experience to achieve proficiency. It's a simple tool, not a piano.

Pulling the trigger when you need to sounds like a simple problem in theory, but much more complicated in practice.

My uncle told me a story about when he was deployed to Afghanistan there was a designated area by the mess hall you were supposed to use to ensure your sidearm chamber was clear. Every once in a while, there was an accidental discharge and an officer would be seen over there sheepishly holstering their sidearm. My uncle pointed out that it wasn't required that you had to pull the trigger, just that you had to ensure the chamber was empty. My uncle said he never had a single accidental discharge in the 2 years he was there because he simply never pulled the trigger. If you don't pull the trigger, no bullets come out.

Meanwhile, this happens:

https://www.independent.co.uk/news/world/americas/police-off...

And this:

https://eu.usatoday.com/story/news/investigations/2019/03/19...

So soldiers trained by the US military would sometimes make mistakes with their weapon resulting in a discharge they were not expecting? Seems like perhaps its not so simple a tool after all...

That's like saying a knife isn't a simple tool since chefs sometimes cut themselves despite being trained to use them.

How do you store and carry your weapon safely? How do you transport it? Who has access to it and the ammunition? It is a simple tool that kills tens of thousands of people a year, the least we can do is treat it with at least the level of respect we give other potentially deadly tools (hardly a piano).

Most gun owners give their gun that level of respect.

Car owners kill far more people than gun owners do not give much respect to how deadly their weapon is.

Car owners kill ~38,000 people a year. Guns kill ~15,000 a year (excluding suicides). There are roughly 20,000 suicides a year via firearm. I would argue that if you compared the number of cars driven on a daily basis in the us vs the number of guns fired, that guns cause far more deaths on a per use basis. Seems like Car owners are far more respectful of their 'weapon' on a per capita basis.

+1, on top of that

Car killing people -> mostly accidents.

Gun killing people -> mostly intentional.

> How do you store and carry your weapon safely? How do you transport it? Who has access to it and the ammunition? It is a simple tool that kills tens of thousands of people a year

Unintentionally? I highly doubt that. I would guess the majority of the tens of thousands of deaths were the result of the gun owner intentionally pulling the trigger, not because they were bumbling around transporting it incorrectly, storing ammo incorrectly, etc.

According to this[1], only 500 people died in 2016 due to gun accidents. The rest were intentional.

[1] https://www.aftermath.com/content/accidental-shooting-deaths...

You do realize that 500 gun deaths alone would make headlines in most other countries?

500 accidents in a country with gun rights and a population of over 300M is nothing. You have like a 1 in a million chance of dying by a gun accident. Even lower if you don't own or use guns. It's a non-problem.

The Mask of Zorro (1998)

Don Diego de la Vega [indicating sword]: Do you know how to use that thing?

Alejandro Murrieta: Yes! The pointy end goes into the other man.

He's parroting NRA talking points.

> You can buy a gun easily enough.

All you need is to know some guy.

> To have a loaded gun on your person you need to be well trained in most states.

All you really need is to grab a loaded gun and conceal it about your person. No paperwork required.

The problem is not guns I think, it's the culture of violence, and fear. Don't Swiss families all have shotguns from the military in their homes?

That's not true. To go from a novice with absolutely no experience with guns to a person with a concealed carry license took one day of a seminar in a southern east coast state.

You are making an innumerate argument. The odds of dying in a car vs getting shot are relevant. There’s no meaningful risk of getting shot and the US is one of the safest places in the world. Those are facts. You should try and get out more.

"There’s no meaningful risk of getting shot and the US is one of the safest places in the world"

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

The United States is Ranked 94th in the world by intentional homicide rate.

"The odds of dying in a car vs getting shot are relevant." Why? I did not mention cars at all in my post so not sure how you bringing up cars renders my response illogical. Is your argument that individuals killed by gun violence would still be dead if there were no guns? Does this include victims of mass shootings in schools, churches etc.? By your rational, we should allow all countries to own nuclear weapons as the odds of dying in a car crash vs a nuclear explosion are far higher.

In 2017, over 15,000 people were killed by firearms (excluding suicide) and traffic deaths killed ~38,000. A car's primary function is not to kill, whereas a gun has almost no other purpose.

I appreciate the recommendation to get out more, but one of the nice things about modern technology is we always have access to facts wherever we are, and those facts indicate your points are very flawed.

A few things:

First, when you bring up the page, the list wasn't sorted by rate, so being 94th on it is meaningless. It turns out that if you sort it by rate, the US is 89th, so not much difference, but... the unsorted list didn't prove your point.

Next, so what if the US was Xth on the list? Is that good? Bad? Indifferent? Your claim seems to be that that's high, but you don't actually provide any reason to reach that conclusion based on place on the list.

Why are cars relevant? Because most of us accept the risk of driving in a car, without worrying about the danger level. It's low enough that we just casually accept it. If guns kill half as many, that's too many (it's also too many from cars!), but it's not a danger that keeps many of us awake at night.

> A car's primary function is not to kill, whereas a gun has almost no other purpose.

That argument may not be saying what you think. First, the dead don't care either way. But second, if cars kill more by accident than guns do on purpose, does that make cars better, or worse?

Given the amount of ammunition fired into targets and other inanimate objects for fun, I take issue with that "purpose" argument.

Given that I once threw a bean burrito at a road sign for fun as a teenager I take issue with its supposed purpose of being eaten \s

Your argument is invalid.

Now, let's compare the final destination of the average bean burrito vs the final destination of the average bullet.

Most bullets are destined to be fired directly into objects, most guns fired will never be used to take or defend a life.

Maybe if there were an entire recreational industry built around tossing burritos at road signs. But, uh, there's not.

15,000/325,000,000 ~= 1/25,000. Just for scope because 15,000 sounds big but not that huge for a country this large. Yes its way too high, but its not like Americans are Yosemite Sam all the time.

The only countries in the world with a higher rate are:

Honduras, Eswatini, Jamaica, Guatemala, El Salvador, Venezuela, Brazil, Colombia, Panama, Philippines, South Africa, Costa Rica, Mexico, Paraguay, Uruguay

I would say those concerns are not really big ones, at least not for me. The big ones are treatment of foreigners on state level in US - it is extremely xenophobic. You are literally a lesser human being and have some basic human rights revoked when not holding US passport, morality and sanity be damned.

Imagine this kind of treatment for you if you travel for leisure or business. Would you ever, and I mean ever, want to have anything to do with such a place? People vote with their feet/money.

Anti-US forces really don't have to try hard with propaganda. Heck, they don't have to do anything. US is doing all this by itself, and thanks to internet those cases are not buried as easily as in the past.

I'm a US citizen. Most of his points are valid.

Guns fucking everywhere is a problem. Lots of Americans think so. Yes, we absolutely execute people -- and our criminal justice system is a completely sham, especially if you're not white and rich.

Oh, and God save you from our health care economics.

If I weren't American, I'd absolutely never come here. In fact, I am American, and I'm actively researching ways to establish residency elsewhere.

> Guns fucking everywhere is a problem.

Which is a bigger problem - guns everywhere or cars everywhere?

Cars really depend on where you are. The US is huge, and it's not really possible to live in e.g. rural Texas without owning a car. Everything is miles and miles apart. On the flip side, New York has an efficient subway and few people own cars. But with the geography of America, it's simply not practical to have the same sort of public transport common in Europe.. the country is 3000 miles wide.

Unfortunately having cars everywhere (and a car-centric culture and urban landscape) will probably kill more people in the long run via CO2 emissions than gun domestic deaths. The collapse of the entire ecosystem and the corresponding mass extinction is undeniably the most important problem of this century.

While technically true, why is this a useful argument? Amount of guns and amount of cars are not linked in any way

>Guns fucking everywhere is a problem.

Please elaborate. I have a house in an open carry state, and I rarely seen anyone actually carrying. Even as a gun owner by far the most likely place I'm going to see a gun is on the hip of a law enforcement officer.

Please consult literally any source on gun-related violence, injury, and death in the US vs. any other modern, liberal democracy.

Is it really that bad though. We like painting a negative picture, because we want the US to improve.

But on the human freedom index the US is ranked 17 alongside Sweden.

The US has problems, systemic and cultural problems that should be fixed. But your risk of getting shot in a mass shooting is low.

On one hand, we should always evaluate if we are suffering "the grass is greener over there" effect.

On the other hand, Aaron Sorkin explains[1] in 3 minutes how the USA is far from the best place to live and what made us great when we were better in those different ratings.

[1] https://www.youtube.com/watch?v=16K6m3Ua2nw (NSFW audio)

"But your risk of getting shot in a mass shooting is low. "

But absurdly HIGHER than say, in Sweden. And most gun violence isn't mass shootings.

Plus, there's the ever-present specter of medical bankruptcy.

Yes, but overall the risk of getting shot is still low. So it being 10x higher isn't that bad.

I didn't say the US doesn't have issues, just that looking at the whole picture -- and comparing with other countries, it's not that horrible.

In Sweden economic opportunities are slightly fewer. Not that it really matters, if you live in modern Western country you're doing pretty well.

As an American I read that as, "we don't have to change, and anyone who suggests we might is in on some conspiracy." Head out of the sand, my friend.

You are right that the death penalty is rare. Rare as in very few developed countries allow it.

Regarding guns, please stop to ask why our friends and neighbors need to carry a killing device to feel themselves.

The US has its problems, but it has corrected many of them over time. (vide: slavery) This occurred when citizenry was not content to leave things where they are and dismiss criticism.

> The US has its problems, but you have been listening to propaganda by anti US forces (you might want to figure out who they are and what their agenda is!)

I think if you think these things are anti-US propaganda, I think you might want to examine the bias you have when you observe your own country.

The death penalty may be rare but it's something that shouldn't exist, especially in a well-developed country and even moreso in a country that frequently proclaims itself the embodiment of freedom, democracy and liberty.

Having grown up in a country that is very restrictive on gun ownership, I feel largely the same about civilian firearms.

> Death penalty exists, but it is rare.

As an American, this attitude drives me nuts. "We don't kill that many people, and heck most of them are even guilty!"

Regarding "loaded guns exist, but they are not common." Again, this is the same attitude of "Even though we have a mass shooting every week, all in all it's not that much." Even if my chances of getting murdered in public are lower than, say, a car accident, the fact that we now teach preschoolers active shooter drills says something sad about our country.

Mass shootings are an incredibly small source of gun deaths. ~2/3rd are suicide and ~1/3rd are murder.

While the US does have pretty high gun related homicide rates, it is largely because proportionally more of our homicides involve guns. Our overall homicide rate is a fair bit higher than most european countries but nowhere near the top world-wide (about #90.)

However, much of this is concentrated into particular locations as the US does have many of the top 50 cities in the world by homicide rate (behind only mexico, brazil and venezuela).

Overall, US gun ownership does not present a significant practical risk unless you go to certain places. Concerns about gun policy (and the death penalty) by potential visitors to the US are thus ideologically, not practically based.

I personally think that our lack of collective support for our struggling cities/regions says much more about us as a country than our active shooter drills (of which I am also not a fan).

You are correct that such fears aren't terribly practical. Human beings in fact aren't terribly reasonable about what they are concerned about.

They bike to work, smoke a cig, and then worry about a Muslim terrorist blowing them up.

Unfortunately people aren't reasonable and our prosperity is partly based on resources and partly based on sucking in a lot of smart people from elsewhere to further enrich the nation we built with said resources and this shitty marketing could easily damage the second ultimately more important source of our prosperity.

> While the US does have pretty high gun related homicide rates, it is largely because proportionally more of our homicides involve guns. Our overall homicide rate is a fair bit higher than most european countries but nowhere near the top world-wide (about #90.)

While not exactly wrong I would definitely argue that "a fair bit higher" is a gross mischaracterization. The US has an intentional homicide rate of 5.3 per 100,000, which is many times higher than UK (1.2), France (1.3), Germany (1.0), Spain (0.7), Italy (0.67) or any of the Nordic countries.

> Concerns about gun policy (and the death penalty) by potential visitors to the US are thus ideologically, not practically based.

Depends how you frame it. Yes, your chances of getting killed in a random shooting are lower than a lot of other more mundane things. At the same time, your chances of getting killed in a random shooting in the US are many, many times higher than getting killed in a random shooting in one of the European countries previously mentioned.

> While not exactly wrong I would definitely argue that "a fair bit higher" is a gross mischaracterization.

"A fair bit" isn't particularly precise but it does means "quite alot" or "a large amount" so think it is a gross mischaracterization to call it a gross mischaracterization. If we are being pedantic, "Several times" is more accurate than "many times" since many generally means a bit more than 4 or 5.

> Depends how you frame it

I don't think so. Practically speaking, all that matters is comparing absolute risks of different causes of death in a specific situatio. For a foreign tourist the risk of gun related homicide in the US is significantly smaller than the other risks of death (such as cars). The relative amount of that risk compared to other countries isn't practically relevant. The risk of drowning in a locked dry room is many times the risk of drowning in a bathtub with an inch of water, that doesn't mean that the risk of drowning in that bathtub is practically relevant (unless you are a baby or extremely drunk/drugged).

As an American citizen, I've been trying to talk my family into leaving for years. Comments here reference the problem being the State and not the citizens. I beg to differ, the citizens in "general America" are dangerous and stupid to themselves and everyone around them. The entitled attitude of middle and upper middle class anyone is so unreasonable, I sometimes walk around the gang-tagged zones in my own neighborhood and think "we're a nation of trapped rats, we deserve this for the lies we keep repeating, we keep eating, we keep electing, and the most empty lie how we're the greatest nation on earth, what a hoot!"

He says while commenting on web site based in the USA

As an American, I'm lovin' it! Guns are everywhere, yet shootings are very rare. I feel very safe knowing I and others around me all want and enjoy safety, and we have strong law enforcement to keep it that way.

(Although I agree that our 4th amendment has been horrifically raped in modern times.)

The vast majority of gun deaths are consentual (suicide), and of the homicidal remainder, the vast majority are within organized crime. Stay away from gang activity and don't flagrantly disobey police officers, and I guarantee you'll be completely fine.

If you disagree with all this, it's probably just not the country for you. You make a good decision staying out.

> The vast majority of gun deaths are consentual (suicide),

~2/3 is a majority, but certainly not a vast majority.

> and don't flagrantly disobey police officers, and I guarantee you'll be completely fine.

Plenty of people are shot by police without flagrantly disobeying police orders. It may reduce your risk, but it does not eliminate it.

> If you disagree with all this, it's probably just not the country for you. You make a good decision staying out.

As a country founded on pluralism, The USA has plenty of room and hospitality to offer those who disagree with you.

2/3 = 66% So if I ate 66% of a cake you just ordered, and handed you back the rest would that not be considered a vast majority of your cake?

Nope, 'vast' means more than very large and its closest synonyms are 'immense' or 'boundless'. I would consider a vast majority to require at LEAST an order of magnitude difference, so 90%+ as a bare minimum and I would probably not use it myself until more like 95% and I would still consider that rather hyperbolic up until 99%. You could call 66% a strong majority or a clear majority, but 'vast' is far too strong in my opinion.

My sentiment exactly! To me, the essence of America is captured in the New Hampshire state motto: "Live free or die".

There are some people who don't vibe with this sort of philosophy. But thank God the USA exists for those of us that do!

If the guns were removed, you'd be more safe, as if there are no guns your chance of shooting goes down from "very rare" to 0.

That is patently false.. By definition criminals do not follow the letter of the law, a good example being that murder is already illegal. Strangely enough though, it still happens. Weird right? So would it also make sense that even if guns are illegal that maybe some bad actors would still have and use them in an illegal manner? Disarming law abiding citizens is all you're doing. Full stop.

Hunt, catch, and disarm the criminals too, like murderers. Then when we catch the criminals with them, we take the guns and destroy them. Illegal things happen but over time with proper enforcement they happen less. Such effort requires sustained unified community effort and political commitment without playing games for votes and lobby dollars, which is the most unrealistic and impossible thing of this whole scenario.

If we can keep nuclear weapons out of criminal's hands we can keep anything out of criminal's hands, it's just a matter of doing it correctly.

You are far more likely to be killed by a drunk driver in the US than by a gun. Your chances of being killed by a gun are basically zero (unless you are travelling to the US specifically to commit suicide), so that's a somewhat bogus concern

I'm always amazed by how few shooting fatalities there are in the US. 330M population, 33K gun deaths per annum [1]. And two thirds of the gun deaths are suicides. So that's only 10K homicides per annum. That's 1 in 33K. In the UK we have 65M population, and 800 murders per annum. That's 1 in 81K. Given that the US is so heavily armed I'd expect the gun death rate to be much higher. IMHO that demonstrates that the average person is equal to the responsibility of firearm ownership.

[1] https://en.wikipedia.org/wiki/Gun_violence_in_the_United_Sta...

You can also factor out gang-related gun homocides since your average American/tourist is not involved in organized crime. Basically, the chances of being killed randomly by a mass shooting or random murderer are extremely tiny.

I will say though that even ignoring gun homicides, our average homicide rate in the USA is rather high compared to other western countries.

Tiny is relative is it not? Relative to Japany chances of getting shot are extremely high. It's also not just about getting shot, it's about being near it and having to worry about it. I've been in at least 3 shooting situtstions in my time in the USA. Once in Westwood waiting in line for movie, once in Santa Monica while eating, once in Mira Loma as a kid and if I add friends and family they've all had experiencea. They weren't shot but they should not have to we even worry about the proximity.

Go live in a safe country for a few years then come back and you'll feel what you've become insensitive to

> Relative to Japan, chances of getting shot are extremely high.

Right, but still... https://xkcd.com/1252/

Something doesn't look right in your numbers. In fact the Wikipedia page you quoted includes a "Gun-related homicide and suicide rates in high-income OECD countries" chart that doesn't match your conclusion.

I checked the ONS statistics[1] for England and Wales (including Scotland and Northern Ireland shouldn't make a huge difference) and it says: "There were 29 homicide victims killed by shooting in the year ending March 2018, three fewer than the previous year. The number of homicides by shooting has fluctuated between 21 and 32 over the last six years."

Are you sure that you aren't comparing apples to oranges, so gun deaths in the US against all homicides in the UK regardless of the method? Another quote from the same paper suggests that might be the case: "There were 726 homicides in the year ending March 2018, 20 more (3% increase) than in the previous year."

[1] https://www.ons.gov.uk/peoplepopulationandcommunity/crimeand...

According this article (https://www.businessinsider.com/us-gun-death-murder-risk-sta...) your chances of dying from a motor vehicle incident is approximately three times higher than dying from a gun assault.

I'm not sure that's entirely accurate, I would have assumed the chances of dying by gun assault was even lower. How was the probability of dying from a gun assault calculated? With car accidents you can generally assume random distribution, but you have to do some math with gun statistics before you can assume random distribution (remove suicides, remove gang-related deaths, etc.)

I'd be surprised if car accidents were randomly distributed. But assuming GP is correct, or even assuming you are correct that it's an even bigger difference, I'd argue that both are way too high, and that the gun deaths even being in the same order of magnitude as car deaths is entirely preventable, and pretty shocking in itself.

You bring up a good point. Traffic fatalities in general are are a HUGE problem in the US, not just alcohol-related, and they're mostly due to poor civil engineering. Another abject failure of US governance.

I don't understand why people always discount suicides among gun deaths, as if suicides only happen to "other people".

It's true that you can limit your gun risk by being white/urban/middle-class/mentally healthy, but these are not advantages available to everyone. There's a lot of victim-blaming in some of these comments, which glosses over the fact that plenty of infants and toddlers die from guns.

Gun deaths in total numbers are roughly the same as car deaths: each are approx 30-40K per year in the USA.

When someone says they don't want to travel to the USA because they are afraid of being killed by a gun, it is disingenuous to inflate their chances of dying by including suicide as an option.

If I say "What are my chances of dying by gun or car if I go on a vacation to the USA?" are you really going to factor in suicide as an option? Generally it is presumed that the person is not considering going to the USA to commit suicide on their vacation.

Thus, most people discount suicides to tailor the gun figure such that a more apples-to-apples comparison can be made.

It's like people claiming to be terrified of going to Japan because the chance of dying by a rope around your neck is insanely high compared to the USA.

> I don't understand why people always discount suicides among gun deaths, as if suicides only happen to "other people".

Probably because the interesting statistic is not "gun deaths" but rather "fatal gun-related accidents" and "homicides" (with or without a gun involved). Suicides don't just "happen"; there is no "risk of suicide" which could be affected by the presence or absence of any particular tool. If you don't want die from suicide, the solution is as simple as not attempting suicide.

> there is no "risk of suicide" which could be affected by the presence or absence of any particular tool.

This is wrong though. Reducing access to means and methods is one of the best ways to prevent suicide and we see drops in rates of suicide whenever we see changes to a commonly used method.

Two of the best documented examples are when the UK changed from coal gas to natural gas, and when the UK introduced catalytic converters.

Obviously reducing access to means and methods is not the only thing we should be doing to reduce death by suicide. But it is an important part of the package of measures.

You're missing the point. You're talking about reducing the number of (successful) suicides. I'm saying that there is no risk of suicide either way because it's something that people choose to do, and choices are not risks.

You're missing the point that if someone chooses to die but uses a less lethal method then there's a good chance they do not die and are saved by medical attention.

You're making the mistake of thinking that someone makes a choice to die and is then determined to carry out that choice and will use rational thinking to chose the most lethal method. It's often not a choice they make; they're often not determined to die and people usually do not make efforts to avoid being found; choice of method is complex but tends to focus on what's easily available and quickly fatal.

Have a read of The International Handbook of Suicide Prevention, edited by Rory C. O'Connor, Jane Pirkis, because it covers all this in detail. Or you can read the NCISH research. Or you can read Professor Nav Kapur's book Suicide Prevention.

> You're missing the point that if someone chooses to die but uses a less lethal method then there's a good chance they do not die and are saved by medical attention.

Forcing someone to live when they wish to die is no better than killing someone who wishes to live. You are welcome to try to talk them out of it but have no right to interfere with their choice—whatever it may happen to be.

> Forcing someone to live

Suicide prevention is not "forcing someone to live". Suicidal thoughts are usually transient and any delay in suicidal action allows the person to seek help. Like I said in my first post, reducing access to means an methods is only part of the package that we need to be providing.

You keep trying to make this point: you keep trying to say that suicide is a choice that people make. I'll try again: it often is not a choice that people make. Please just go read the research. Here's a tweet about "Rapid Onset Despair": https://twitter.com/ProfLAppleby/status/939820235946971138

You especially need to pay attention to intoxication and suicide. Or are you saying that an impulsive decision made when very drunk is no different to a considered decision that is stable over months made when sober?

> no right

Since you mention rights, people have a right to life and suicide prevention respects that right. It respects that right in a way that wide-spread gun-ownership doesn't.

UNCRC Article 6: https://downloads.unicef.org.uk/wp-content/uploads/2010/05/U...

UNDHR Article 3: https://www.un.org/en/universal-declaration-human-rights/

UNCRPD article 10: https://www.un.org/development/desa/disabilities/convention-...

I live in England and the Mental Health Act and Mental Capacity Act specifically give HCPs the right to take away people's choice in some limited situations. I don't know where you live but you almost certainly have similar laws around substituted decision making.

> a general attitude of being the masters of the world

Sounds like you don't appreciate the regional and resource stability that the US military brings to your country. You probably just take it for granted that cargo ships can travel freely and trade without worry of being attacked. Global trade wasn't this risk-free before the US navy became "masters of the world".

Maybe we need to dissolve NATO then because clearly the EU does not see defense as a priority and puts little to no effort protecting its interests since the US takes care of it. I vote the US pull out of NATO and stop being "masters of the world" in the middle east, protecting shipping lanes with the navy, etc. EU can protect its own interests with its own defense budget. Good luck.

ironically, Hawaii has no death penalty and extremely restrictive gun laws. it's a big country!

And worse - no proper support for Metric!

By far the greatest sin

What surprises me the most is the huge divide between these horrific things that happen at government level and the fact that 99% of Americans I met were instead very lovely people.

To meet lovely people doing horrific things, live in one of the (not poor) DC Metro Area neighborhoods.

> Best thing is to just not have anything to do with the US of A.

The US is about 4% of the world population. The rest of the world about 96%.

(Google for "US population" and "world population", use mathematical process known as division.)

There are 16 countries rated higher on the "human freedom index": https://object.cato.org/sites/cato.org/files/human-freedom-i...

I assume you won't travel to Sweden, they have the same score as the US :)

Don't get me wrong, I also frustrated the US doesn't so better -- not because the US is that bad, but because it would be so easy for the US to do better.

And for some reason I emphasize with the Americans :) (I live in Denmark, but I'm not scared of traveling to neither Sweden or the US -- but I've never been to a non-democratic country, no plans to either).

Oh come on now. In Australia you can be detained without charge and all they have to do is mention the 't' word. I also had someone turn up to our tabletop session on the weekend saying trains had stopped because someone got shot outside the station, while I struggle to get a license for a muzzle loading antique flintlock rifle. Not to mention I can get fined for all matter of stupid stuff because of the nanny state.

The US isn't perfect, but of all the places in the world you could live it's undeniably one of the best. Probably second only to Germany in my favourite places to travel, tbh

Why are you on hackernews, a USA website / company?

Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge.

Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.

> That's been the common law since King Tut.

Much immigration law is pure statute and dates from the 20th century. Border enforcement has varied hugely, and often included internal border and migration enforcement.

(The British Empire had almost what we would call EU-style "free movement" exactly up to the point where nonwhite people started taking advantage of it in significant numbers, with the Ugandan Asians fleeing Idi Amin in the 60s.)

https://en.wikipedia.org/wiki/Denise_J._Casper Obama Judge.

But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.

Not quite. I’m saying that liberal judges tend to ignore the law when it comes to highly political issues.

For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.

I would argue that this is not really a "liberal" thing. Up until the 1970's the courts (including the Supreme Court) regularly found that the right to bear arms was in the context of establishing a militia, and not really a personal right. They consistently citied the "A well regulated Militia" part. The law was clear.

Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.

That interpretation is farcical and was rightly overturned. How can a right be held by the collective if it is not protected for the individual? Are we to believe that individual journalists may be hauled off to jail without violating the freedom of "the press"?

Collective rights are held by the States. "The people" are individuals and the prefatory militia clause is not a limit.

The founders included that clause for a reason.

The Supreme Court opinion in DC v. Heller explains why that clause was included:

>The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

And to think that Scalia considered himself an originalist! I guess that only applied when it was convenient to him :/

This is originalism as clearly supported by the numerous references to contemporary language, other writings of the authors, and comparison to other language in the Constitution. Have you read the opinion?

To interpret words, as a judge does, is inherently biased.

Just because two people disagree on an interpretation of law does not mean they are not applying that law in good faith - we all have worldviews and beliefs that naturally color our understanding of reality - which includes our understanding of laws.

We attempt to write laws clearly to avoid personal interpretation, but it's impossible to avoid all interpretation. Thus we appoint wise judges to do so for society. Even wise judges have unique worldviews.

Richard Posner from the 7th circuit said something like this: (a) decide which way one wants to rule (b) find the relevant reasoning to effect (a).

What we are told is the other way around, a fiction: Reasoning drives the decisions.

Sure, judges can't decide arbitrarily. They have a range of reasonings, a set of outcomes, along with prevailing political/intellectual/economic winds. Just pick an appropriate combination.

> That's been the common law since King Tut.

Common law started long after King Tut, and in any case the Constitution isn't overridden by common law where they conflict. While this particular issue has been controversial, there idea that you have no rights at the border is unsupportable either in the text of the Constitution or the case law, and you should feel cheated that you had two professors that did such an inexcusably bad job of explaining the law, if your description of their lessons is correct.

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