Federal judge: Border searches of cell phones require a warrant
eff.org
eff.org
I know people who have two factor codes and password vaults on their phone's that if compromised by a competent attacker could compromise nearly every major corporation in America.
Imagine if a foreign intelligence agency managed to get a border guard asset.
Even from a reciprocity point of view, if we search other people's phones, that sets expectations that ours can get searched too. It's dangerous precedent all around.
https://www.aclu.org/other/constitution-100-mile-border-zone
But then there's also this:
> In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by CBP and the U.S. Department of Homeland Security, and the consistent failure of CBP to hold agents accountable for abuse. No matter what CBP officers and Border Patrol agents think, our Constitution applies throughout the United States, including within this “100-mile border zone.”
I guess we could go back to 1910 and only import stuff and admit people in coastal cities. Make everyone from Europe fly to JFK on the way to Atlanta.
Pretending I don't have Fourth Amendment rights on one side of the Customs desk at said ports of entry is not.
What 4th amendment rights have you been stripped of in every coastal area? Show me how the 4th amendment isn’t a thing in Delaware. Don’t spend too much time though - it’s nonsense.
As for coastal areas, though, If CBP can stop me away from the border without a warrant and without reasonable suspicion of a crime, that IMO is a Fourth Amendment violation. The ACLU cites specific cases of this happening: https://www.aclu.org/sites/default/files/field_document/14_9...
> Between 2006 and 2010 in the Rochester, NY, area, approximately 300 immigrants with legal status were arrested by Border Patrol agents, then released
They also cite the regulations establishing the 100 mile rule: https://www.law.cornell.edu/cfr/text/8/287.1 defines "reasonable distance" and "external boundary", and https://www.law.cornell.edu/uscode/text/8/1357 utilizes those definitions to do things like "without warrant... interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States" and "to board and search for aliens... any railway car, aircraft, conveyance, or vehicle".
It's quite clear that significant parts (all?) of Delaware fall within that claimed jurisdiction.
Stop keeping that information on their phone: not always possible. Many highly-secure places require you to coordinate with an application on your phone when authenticating. In my experience, there is rarely a non-mobile option presented to users.
That means any and all of that information is already in the hands of the US government.
If you want to think about the attack surface, look at companies that serve other companies and ask "what can someone with root on all of this companies machines do?" and more importantly "How mature are these companies security teams?" Imagine compromising a law firm, a public relation agency, or a newspaper. A VPN provider, a corpnet provider, or a cloud provider.
My password vault doesn't have my ssh keys, but it does have my no 2fac required github recovery tokens. Phones have a lot more than just security tokens. They could provide information useful for phishing or extortion, too.
I think you asked this because I used a rather grand example and that's fair. If I were to look at my post critically I think I under-stated both the potential security mitigations in place by competent security teams and the difficulty of really compromising someone's phone, and therefore somewhat overstated the problem.
When playing war games, you give your opponent every conceivable advantage somewhat grounded in reality, and I have given this idealized attacker the advantage of an incompetent security team, easy compromise of phone, and lack of political consequences for taking a phone out of someone's sight and/or compelling them to enter passwords by threat of force.
If you had an intelligence agency with a significant amount of APT penetration, you might look up every person who requests a visa on LinkedIn and determine if they can amplify the position of your APTs. Maybe you have compromised a taxi app or and and know what hotel they are going to and you can steal a notebook when they leave the room.
I think phone out of your possession is a credible attack, maybe less so today, absolutely 10 years ago it was. Pegasus is a thing, and there were definitely rumors that Chinese police had a little USB stick they could put into peoples phones that would install an app that then disappears from the home screen.
For as long as I can remember, it is hammered into every person who works around security that "no physical security means no security." Losing possession of your phone is the loss of physical security.
My wife's laptop just got compromised a couple of weeks ago, and I've been diving down the security rabbit hole of figuring out how it happened, what's going on on my network and my computer and phones etc. It has been a rude awakening as to the sheer amount of blind trust I've been placing in all my devices. After watching what network traffic comes and goes on my laptop and how much info gets recorded by the system I've come to the conclusion that modern OSes and browsers that aren't explicitly privacy focuses are basically spyware. My new mindset is 'assume everything is compromised at all times and treat it accordingly'.
What OS? I assume Windows? What kind of artifacts have you already discovered?
DNS is a surprisingly fruitful thing to pay attention to.
Some viruses will delete themselves if they detect things like Wireshark or Python are installed.
I believe this is one of the big boy tools, though I haven't used it: https://www.volatilityfoundation.org/about
https://www.varonis.com/blog/how-to-use-volatility looks like a fun exercise.
What I did discover is that by default Chrome captures and stores every field you submit to every form in a SQLite database. The amount of PII that turned up was absolutely staggering. If I could only exfiltrate one file from a machine, it would be that.
It sort of boggles the mind that that's a thing at all. I don't ever want to touch a browser ever again.
This is actually a favored method to do an end-run around your rights: just get a foreign state to violate them instead.
> Documents leaked by Snowden in 2013 revealed that the FVEY has been spying on one another's citizens and sharing the collected information with each other, although the FVEY nations maintain that this was done legally. It has been claimed that FVEY nations have been sharing intelligence in order to circumvent domestic laws, but only one court case in Canada has found any FVEY nation breaking domestic laws when sharing intelligence with a FVEYs partner.[11][12][13][14]
[citation needed]
The very first sentence you quoted doesn't cite any of Snowden's docs that says that. The very next sentence you quoted has a bunch of citations that say the opposite. In fact, conspiracy theorists speculated what you claim after Snowden dumped his documents, but none of Snowden's documents corroborated that claim.
Previously discussed: https://news.ycombinator.com/item?id=35763700
So much trust involved in a possibly nuclear-level scenario, and you're not curious at all how that trust was built up? Such as by sharing intelligence?
Because they don't spy on each other and they share intelligence gathered elsewhere, as the agreement says. Why would you jump to the conclusion that this quote means they help each other break their respective countries' laws despite complete lack of evidence?
This whole strategy depends on the fact that by the time you realize you might not want to have your "real" phone on you, you can't do anything about it.
From a technical perspective we need a phone where you can dump out the main memory chips and swap in a blank firmware image quickly.
I suspect it's possible to design a phone which entirely uses removable storage, but beyond devboard-like systems, I'm not aware of any.
There is also a way to restore the deleted info from a backup server once you have the phone back.
US soft power can influence international norms.
US agents not having access to travel devices means US international travelers can reduce their risk exposure. Travelers can chose not to visit countries that will search their devices. If the US searches phones, it is is much harder for a US traveler to manage the risk.
So, as much as I like the idea of being free to take my phone to another nation without my rigorous digital hygiene routine, I know that the US is never going to cast off its great defensive and offensive SigInt advantages. And I doubt this kind of case could ever make it past an appellate court, because every appellate judge knows that limiting Presidential power in any way immediately dashes any hopes of making it the running for a Supreme Court appointment.
Where do you get that idea? Pretty sure there are several three-letter agencies in the US that would disagree with that statement.
Learning the language and customs of a foreign country to a deep enough level to fool even people looking for you into believing that you're a native doesn't seem like a remotely intractable problem.
My point was more that this isn't a deep part of our culture (the way it is in Russia), rather I think we spun up a lot of these programs after the national security apparatus failed to stop 9/11 or divert us away from a pointless war in Iraq. Based on the instant collapse of the Afghan government without US troop support, I can only conclude that we lacked sufficient HumInt capacity to understand that context well enough to form an enduring strategy.
So my point there is more that HumInt isn't one of our natural strengths, the way SigInt is.
Border agents with unchecked discretionary power is also a slight against rule of law and I think warrants are a check on that power. Maybe they are more checked than I believe them to be or have less discretionary power than I believe them to have. I am open to the idea that I am wrong.
There is absolutely a distinction to be made between a foreigner and a citizen and their respective personal properties.
But that distinction is not relevant in this case. Case in point: your luggage.
Try using your status as a citizen to refuse your luggage to be inspected for contraband or taxable imports when returning to your home country from one with which it does not share a tax and customs union, and see how that goes.
We have the Visa application and interview process for that.
> There is absolutely a distinction to be made between a foreigner and a citizen and their respective personal properties.
Could you pinpoint this distincrion?
What would I be allowed to carry through US border as a citizen but not as a foreigner? Guns? Cocaine? Illegal french cheese?
I think you are resting in fallse comfort that your possesions are more protected than those of unwashed foreign masses.
> Imagine if a foreign intelligence agency managed to get a border guard asset.
Sounds like a great reason for Corp IT to not allow anything too important to go on mobile devices.
(Which is already how Corp IT in most well-ran firms operates, not because they are afraid of compromised border assets, but because they are afraid of a million other, mundane reasons for why corp access on a phone can turn into a security and compliance problem.)
That is a national security concern.
And, no, I don’t mean “warrantless searches of those devices raise national security concerns”, I mean, that state of affairs irrespective of US government search policies is a national security concern.
I'm interested in reading that if you have a link.
And not for nothing, but a yubikey isn’t exactly protected from border agents either. At least a phone has some legal protections now.
Needing a warrant, means you have to articulate why you want to invade someone's private life, and it further provides a chain of accountability.
It prevents rogue employees(peace officer, border patrol) from doing whatever they want, it provides oversight, it provides a second set of eyes, it provides for adherence to legislation and court decisions!
Yet I see people thinking it's some sort of horrible requirement. So bizarre.
So that can be pretty serious for senior staff, infrastructure team members, and so on.
So in many case 2FA is broken unless you decorelate access to app/password and sim card, which mean accessing your apps/systems through a second device instead of your main phone such as another simless phone, laptop, ipod touch, or tablet. Most people would never do that for conveniency reason...But in that case the same search rules/laws apply to second device anyway so it doesn't change anything to the core issue.
This is either bullshit or those people are idiots carrying around that kind of information on a cell phone and crossing borders with it.
Now do "They can't make you sit in secondary area/room for two hours without looking at you."
That's because it is lol.
Remember this incident? Fun stuff.
https://web.archive.org/web/20230421210739/https://www.theat...
"A NASA Engineer Was Required to Unlock His Phone at the Border
A U.S.-born scientist was detained at the Houston airport until he gave customs agents the passcode to his work-issued device."
Foreigners i understand... either give the passcode or go back home... but local citizens?
(i've argued more than once at my countries border, and there's not much that they can do)
The law is irrelevant when LEOs can side-step it whenever they want.
The thing they can do that I find problematic is stop all traffic at a checkpoint and ask immigration-related questions without any suspicion whatsoever. This is conceptually similar to a DUI checkpoint, and I think the courts are wrong to allow either in the USA because they constitute a detention not based on reasonable, individualized suspicion of a crime.
What happens is the search is tossed out in court, which you have the option of federally or state.
> The federal government defines a “reasonable distance” as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Two-thirds of the U.S. population, or about 200 million people, reside within this expanded border region, according to the 2010 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.
Southern end of City of Los Angeles is about 105 air miles from the land border.
And I think you mean LA County, The city is around 120 miles. Regarding the county, Long Beach isn’t really LA - nobody from Long Beach would say they’re from LA.
City of Los Angeles includes the port area near Long Beach, and the 110 freeway corridor leading there. Yes, it's a really weird shape.
https://www.google.com/maps/place/Los+Angeles,+CA/@34.020161...
Didn't realize City of LA wanted to own the port so much, interesting.
Edit: I just read that 100 miles “inland”, but even that’s absurd, never knew that.
https://www.lexisnexis.com/community/casebrief/p/casebrief-u...
I'm American. I've always liked this way of describing things that we don't like. It somehow (to me) implies something. Maybe I don't know what that is, but it seems mostly anti-bad.
If anyone wants to hate on me, I think that HuAC was tragically misrepresented to the public, and the Hollywood blacklists should have been longer and wider. Sorry, but that's how I feel about it. Many of the jokers that ended up there were acting very irresponsibly and as if there were no consequences for their actions. The actions being a hidden alignment with an internationalist organization actively seeking to undermine the USA from within. (Something we can accomplish without any outside help.)
https://en.m.wikipedia.org/wiki/United_States_Border_Patrol_...
If you check this in the search bar at the bottom of the page you'll see this has come up a bunch on HN (it's a lurid and exciting notion to toss around!) and there are SCOTUS cites in the results.
It is not my contention that CBP isn't abusing the law. I'm sure they are. Many CBP immigration stops apprehend no or single-digit unlawful immigrants while arresting dozens and dozens of citizens for things like suspected drug offenses. My contention --- well, not really mine so much as that of the Supreme Court and of law review articles about this case law --- is that what they're doing is plainly unlawful.
What is plainly the case is that many people believe that the law dictates that CBP can warrantlessly search citizens anywhere within 100 miles of the border (that border including the shores of all the Great Lakes). The law does not say that, the Supreme Court has repeatedly said that CBP can't do that, and people should stop repeating the claim that they can, because that claim empowers the CBP, which is already prone to abusing its authority.
But the bogus claim is head-turning, and presumably generates a lot of money for ACLU, because it's alarming and wrong-seeming (well, wrong, period, but...).
"The Immigration and Nationality Act of 1952 established that a "reasonable distance" of the border would extend "100-air miles" around the outline of the country. "
Update: addl reference [3]
[1] https://www.snopes.com/news/2022/06/13/what-is-usa-border-en...
[2] https://tile.loc.gov/storage-services/service/ll/fedreg/fr02...
[3] https://ballsandstrikes.org/legal-culture/border-patrol-100-...
"This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself."
There is no requirement for an agent to assume your nationality and let you through, no? You still need to show your passport even when returning home.
Of course, all this sovereign citizen nonsense ignores reality and tries to pursue (nonexistent) legal 'gotchas' like you're rules-lawyering your way into a 'rules as written' game breaking combo in Magic: The Gathering.
I have no dog in this fight, just an intellectual curiosity.
It would also only really apply at a land crossing, I imagine. You can't even get on a plane that's entering the US without showing your passport at the departure gate. At that point your only option if you really are without documentation is to find the nearest US consulate and get some travel papers.
My last flight to Seattle from Mexico a few weeks ago (also, note that I'm an LPR, and not a citizen) I walked up to the CBP immigration counter, looked at a webcam, the officer looked at his computer, said "[my name]?" "Yes." "You're good to go."
I had, of course, my passport and green card on me, but they were held by my side the entire time. He didn't ask for them.
You don't really have to "trust YT" here; there are plenty of videos of the encounters themselves, where people stubbornly refuse to answer the CBP agent's questions until the agent gives up and waves them through. Sure, you can argue that they're staged or something, but the sheer number of them would at least put some doubt on that claim.
/before people ask: I’m white my wife is Mexican.
Please clarify if I’ve got the wrong read on what you mean though.
Like I said, the best I’ve found is some information on a movement of “First Amendment auditors” but a literal reading of what they’re about has them testing First Amendment jurisprudence which isn’t exactly stress-testing your Fourth Amendment rights in an reentry line at the border, hence the request for clarification.
In any case, the 'Freedom Auditor' concept mentioned in your initial comment sounds, to me, like the express line to "Please wait over here while I get my supervisor" from your CBP agent.
https://www.nationalgeographic.com/travel/article/a-history-...
Even in the period of supposedly free international travel before WW1, the US government barred a large number of people from entering the country.
There are plenty of videos on YouTube of people sitting in their cars and just repeating "Am I being detained?" and "Am I free to go?" over and over until the CBP officer gets tired of it and lets them go. As should be the case, IMO; the existence of these checkpoints is absurd.
The "freedom auditors" are expressing their rights to doing things that are _defined as legal_ but regularly infringed upon (taking pictures of public property like police station lobbies, post offices and libraries). Refusing to show documents at a port of entry isn't ever defined as legal, AFAICT.
Now, this federal ruling is kind of unrelated. It's not about asking for documentation, it's about the ability to search an arrested person's phone after they've been arrested.
To be clear, I think it's 100% okay for the border patrol to require proof of citizenship at the border. I just think that the moment you prove it, the border patrol becomes just like any other federal police force, no extra powers just because they're at the border.
Depends on the border that you're trying to cross.
They have a process for this, it just takes a long time to manually confirm you are who you say you are.
I am not a constitutional scholar, but very few of the rights given to the government specify citenzry as important. Most of the rights specified as not granted refer to people or persons, not citizens.
So your sentence should be "once you demonstrate that you are in fact a person in the United States..."
"Everyone has the right to freedom of movement and residence within the borders of each state."
That countries can (as a rule) deny non-citizens entry for whatever reason they so desire should be obvious.
In practice, it's probably like the county in Idaho in which a law professor once posited you could get away with murder[0] because there'd be no "jury of your peers" to convict you.
[0]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=691642
This doesn't sound right - if it was true, border officers would be free to mug and rape.
If you're crossing a border, customs having the right to search you isn't a silly idea - the government has the right to enforce customs and tax/duty laws. Being able to search items you are bringing across the border is in line with that.
Where I think the nuance comes in is that carte blanche search rights don't make much sense in a era when they can search you electronic devices that aren't really related to customs and tax/duty laws.
As history has shown[0], this is easier said than done. Legally US citizens can't be deported or denied entry, but that sure doesn't stop the government from trying!
[0]: https://en.wikipedia.org/wiki/Deportation_of_Americans_from_...
[1]: https://www.aclu.org/wp-content/uploads/legal-documents/lati..., "The bench trial then began on December 2, 2013. On the first day of trial, before opening statements, plaintiff’s counsel reported that plaintiff’s daughter — a United States citizen born in the United States and a witness disclosed on her witness list — was not permitted to board her flight from Kuala Lumpur to attend trial, evidently because she too was on a no-fly list." ; https://reason.com/2013/12/04/wanting-to-testify-in-no-fly-l...
(IIRC, the mother was also on the no-fly list, and that was context of the case itself, even. One could rightly also refer to her as an injured party too.)
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1...
Doesn't the 5th amendment specifically guarantee the right to indictment by a Grand Jury for 'a capital or other infamous crime'? Or was this considered moot because the same amendment gives a caveat for a 'time of war or public danger'?*
Your link seems to recognize this distinction and seems to sidestep the 5th amendment question by narrowing the scope (although I admit I haven't read it all in detail):
>"The Court recognizes that its holding regarding the political question doctrine is inconsistent with Judge Bates’s decision in Al-Aulaqi v. Obama. That earlier case alleged that the United States’ intention to kill Anwar Al-Aulaqi violated the Fifth Amendment. In contrast, the instant Complaint raises the issue more directly and acutely, asserting a claim for damages for the actual taking of Anwar Al-Aulaqi’s life without regard to Fifth Amendment protections."
*this obviously adds some additional risk to perpetual 'global wars on terrorism' and the ability to rules-lawyer your way into any outcome you want
While I have dual citizenship, I live and work in the US, and nearly always travel on my US passport.
The boarder guard gave me a hard time about traveling with my children and without my spouse, but after ascertaining that I wasn't abducting my own children in a custodial dispute, let me in, and then got chatty.
He said something along the lines of, "I could tell you were annoyed that I had to call your wife, but if your kids ever went missing, you'd be glad that we checked."
Since we were just having a chat and he seemed friendly, I let him know that I was a dual-citizen, and asked a few questions I'd had about dual-citizens crossing boarders. One of them was, "would it have made any difference if I was coming into Canada as a Canadian, instead of an American?"
His answer was, "As a foreigner, I can deny your entry into Canada for all sorts of reasons. As a Canadian, I have to let you into Canada so long as I don't have reason to doubt the authenticity of your citizenship. Basically, if I think you're a foreign criminal, I can deny you entry. If I believe you're a Canadian criminal, I have to let you in then arrest you."
BTW, he also let me know that the biggest reason that dual-citizens should travel on the passport of the country they reside in is hassles over import duties. AKA, if I'd been entering as a Canadian driving a US registered vehicle into Canada, he would have been suspicious that I was importing it, and likely to charge me import duties, or at least given me more of a hassle about making sure it was going back to the US at the end of our weekend camping trip.
Obviously, if my children were ever abducted, I'd want every law enforcement officer everywhere looking for them, and doing whatever was necessary to find them.
On the other hand, I dislike the construct that I as a parent am required to have a "permission slip" from my wife to take my kids camping north of the border.
Honestly, I think this could pretty easily be solved with a technological solution. Just some (optional) system where parents can alert the government of neighboring countries "I trust my spouse and they can cross the border with my kids at any time" or "we're in a custody arrangement/domestic dispute don't let them through!"
Tie it to the digital info they already have related to passports, and this becomes frictionless.
It's important to add the caveat that different countries have different views on this. For example, my understanding is that while the US does not ban dual citizenship, it is illegal for a US citizen to enter the US on a non-US passport.
I think the bigger issue with trying to do this would be getting an ESTA/visa for US entry on your foreign passport. Anecdotal reports seem to suggest it's possible, but apparently there's a question on the ESTA form asking if you are a US citizen, and if you say yes, they're supposed to deny you.
I'm chuffed about this, but I won't celebrate until the decision applies to non-citizens crossing the border too. Right now a border official can tell a non-US citizen to do absolutely anything, and if they fail to comply they can simply be denied entry, with no reasonable right of appeal, no matter how unreasonable the border official's request. Border officials do and will continue to abuse that privilege until reined in.
For laptops, as I mentioned in another comment, using plausible deniability (veracrypt provide such functionality (2)), where you can login to a decoy OS if you were to be forced, keep in mind some deep forensics might give an indication that there’s another OS hidden and encrypted but very hard to do so.
Also, EFF guide from the article below on about the borders (3)
(1) https://arkadiyt.com/2019/10/07/pair-locking-your-iphone-wit...
(2) https://veracrypt.eu/en/Plausible%20Deniability.html
(3) https://www.eff.org/files/2018/01/11/digital-privacy-border-...
https://www.eff.org/pages/donate-eff
Rattles tin can...
https://www.aboutamazon.com/news/company-news/amazon-closing...
(No moralizing here, though... I use Amazon pretty frequently, even though I know how poorly they treat their warehouse employees and delivery drivers.)
They both sell make brands as well.
Please, anyone reading this, consider donating to this great organization that does important work on our behalf.
td;dr: government agents can use ignorance of the law to get away with breaking it
--
a quote from the decision:
> Nonetheless, that still leaves the question whether to suppress the evidence from such an unlawful search. Here, the Court determines that the “good faith” exception precludes suppression, both because at the time of the search, the agents conducting the search had an objectively reasonable basis for believing that there was legal authority binding on them that authorized such a search and also because the Government ultimately obtained a search warrant to search the phone copy, disclosing all relevant details of the search to a neutral magistrate. For these reasons, further elaborated below, the Court reaffirms its prior denial of Smith’s motion to suppress.
Because that's the way the 4th amendment works. If the state isn't good enough at their job to train their agents properly, then fuck 'em.
> If his rights were violated, he can sue.
They were, he did, and this case was the result. His rights were simply violated with no recourse, is what this judge said.
But the search in this case happened in 2019. How was the agent supposed to know what the Supreme Court would decide 4 years later after many appeals? The agents were acting reasonably enough, according to the law, that it took the Supreme Court to resolve it. This isn't a clear case of an agent not doing their job as it was defined. For example, we're also not going to retroactively fire all the other agents that also conducted searches like this even earlier. (We're not even going to overturn rulings of people convicted on evidence from warrantless border phone searches, since these Supreme Court rulings aren't retroactive. That's the worst thing about this in my mind).
But after this ruling we can now definitively say that agents conducting warrantless border phone searches are not doing their job and should be fired. The evidence would now be thrown out in court anyway.
While it's now clear that warrantless border searches of cell phones are illegal, the very fact that this took 4 years and had to go all the way up to the Supreme Court to determine this means there was ambiguity. It's not that the agents were "ignorant of the law", it's that the law was unclear on this aspect. If agents were just ignorant of well established law this never would have made it to the Supreme Court.
And these decisions generally don't apply retroactively since it would be incredibly disruptive. For example, if they were retroactive then in states that have always had laws outlawing abortions on the books, abortion doctors could be charged for crimes after Dobbs v Jackson overruled Roe v Wade. (Previously, Roe v Wade nullified those state laws).
Of course, I absolutely agree with your sentiment. It's absurd this was ambiguous in the first place and that it took this long to establish that these warrantless border phone searches were illegal.
Thanks for the good response by the way, I like that we can discuss this like adults!
https://www.aclu.org/know-your-rights/border-zone
I find this sort of federal government overreach absurd. I hope this ruling affects this as well.
That said: the rotating CBP checkpoints around places like Tucson are, as this article observes, probably unlawful! You've got Almeida-Sanchez that says straight out that warrantless evidence collected from intrusive searches far from the border without any reasonable belief of a recent border crossing are inadmissible, and then you're left to figure out how to deal with the harassing impact of these checkpoints on locals.
I'm not here to stick up for CBP. I've had only bad experiences with them. But also, I don't live within a 100 mile "Constitution-free zone", no matter what ACLU may claim.
Start on page 404 of this to see it basically reciting the same argument I'm making.
I don't think the ACLU is claiming the 100 mile zone exists de jure but rather that CBP and successive executive branches rely on a specious claim, it's extremely hard to sue them, and so the 100 mile zone is a de facto reality. You can of course tell a CBP agent to get bent and that you'll fight it in court, but (assuming you're driving) you'll probably stop if waved down.
I agree with your legal analysis, but absent a court or executive order explicitly stating the CBP has no such authority, they act as if they do. It is this reality which the ACLU is describing, howbeit shallowly.
A reminder here that Lake Michigan is entirely bounded by the United States. I think it's as internal as the Great Salt Lake.
This is of course ridiculous because by that definition lots of US cities sit next to that sort of body of water including any city on the Mississippi.
again, i’d have to go back and double check this.
edit: unfortunately i’m at work and due at a meeting so i can’t deepdive, but here’s a couple of links expanding on agents, Portland, and the 100 mile zone (the latimes is an oped but it links to more info):
https://www.cato.org/blog/portland-paramilitarization-border...
https://www.latimes.com/opinion/story/2020-07-22/border-patr...
This was not a simple case of trying to sue for some damages, like breaking a door down or technically violating rights by entering without permission:
> When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave.
> Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egbert’s supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule.
In a sane world CBP agent Erik Egbert would be in prison but he wasn't even fired. The supreme court saying they're not technically condoning the behavior but denying the plaintiff any ability to sue seems like a distinction without a difference to me!
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.
The warrant clause of the Fourth Amendment was a response to the "General Warrant", an instrument issued by the British government to local officials that was essentially a license to harass at will; that's why Constitutional warrants have to describe particular places, persons, and things (because that's what General Warrants didn't do).
Basically, how can you enforce a law on someone and at the same time ignore the rights that apply to someone where that law can be enforced.
If the person hasn't entered the country, then the law of that country doesn't apply. If the person has entered the country, then the rights and protections of that country also apply..
It makes sense for border control to exist to _some_ degree. That means that property and potentially people will need to be searched. It also makes sense for border entry points to not exist at the moving shore of a nation or in the actual air.
That means that an administrative concept should exist where people on one side of a line are considered to be have been granted entry and people on the other side aren't -- even if both sides of the line are within a nation's territory.
That administrative concept can be (but can also not be) compatible with both the goals of human rights and with the goals of nation states. And at the end of the day, laws should be more focused on achieving goals than fiddling with nitpicking.
There's nothing in my post about stopping them from exercising border control.
There's nothing about where that might take place.
The point is, if you have enforceable laws then those that the laws are being enforced on also enjoy the rights available to them under the same laws.
A search (of electronic equipment) requires cause (this is why the warrent is needed), and detainment also requires some degree of cause.
Arbitrary search and detainment is what we ascribe to totalitarian nations.
>The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices
That said, this was years ago. I have heard that they do try to clone the drive now.
Plausible deniability and FDE (for the partition you care about at least).
I didn't like it though.
Brazil had a special queue for US visitors in early 2000s, forcing them to get fingerprinted, as a reciprocating policy. I doubt the fingerprints were actually digitized or stored - it was likely more to annoy people into pressuring their own government to stop treating Brazilian nationals in that way when visiting the US.
- anyone inside the USA borders/waters
- and any citizens of the USA no matter where they currently are (obviously only affecting the actions of US Government, government of Thailand of course wouldn't be bound by US Constitution).
But the Supreme Court disagrees with me on parts of that. So I think the answer to your question is "whatever the Supreme Court says."
To be fair, I think SCOTUS disagrees with itself on some parts of that.
>- anyone inside the USA borders/waters
They do. At least all bill of rights except the 2A do. "In theory" anyway.
In the first half of your question you clearly show that non-citizens outside the US aren't protected by the constitution. And the vast majority of the world are non-US citizens outside of the US. So you can pretty much spy on anybody and be consistent with this decision.
This says absolutely nothing about the rights of noncitizens detained after illegal entry.
We need additional ways to create standing in courts
It is ridiculous that a constitutionally contradictory law or policy can remain in the books for decades, just because the right rich person hasn’t been inconvenienced enough by the law to challenge it
In some countries, the President can get a law evaluated for its constitutionality as an additional choice than just vetoing or signing. We could start there.
Your plan could potentially be accomplished by amending the Constitution but I do not think Congress could pass such a law.
If law enforcement wants to be taken seriously it needs to behave like this isn't actually a dictatorship. They have massive powers already without this nonsense.
https://www.aclu.org/other/constitution-100-mile-border-zone
(I assume warrantless searches of cell phones of foreign nationals not at border control are illegal as well?)