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Comment by cdrnsf | Hacker News Reader

The border agents didn't act in good faith, regardless of what they're empowered to do. They wanted the data for one reason and fabricated another to prompt the device search. The data they were interested in pertained to protest activity protected under the constitution but the lie they told was about something criminal. That anything within 100 miles of the border is constitution free tosses that out, I guess, but is extremely problematic on its own.

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> That anything within 100 miles of the border is constitution free tosses that out

That's a misconception. Border/immigration agents can operate inside this zone, including making stops with reasonable suspicion or running checkpoints where everyone is stopped with no suspicion. The checkpoints are limited in scope, and do not provide authority for searching electronic devices. Some people, including a couple dissenting supreme court justices do feel the checkpoint part violates the constitution.

That's distinct from the border search exemption, which allows inspection of everyone and everything crossing the border. It only exists when someone is actually crossing the border and does not allow CBP to stop or search people who are not crossing the border.

Edit: https://www.aclu.org/know-your-rights/border-zone

Having lived near the US border most my life, the way it was explained to me years ago, is that there is a strip of land at the border crossing, where you are in neither country. In this space, you are not privy to any of the protections you would be allowed were you in either the US or Canada. This is where you are taken when you are forced to leave your car. Part of the current controversy is that the US government is trying to treat this literal no man’s land as both international land as as federal land with the disparate charges they are applying.

Fun fact. Lack of parking is not a legitimate reason to attempt to drive past this region. I was once flagged crossing into canada on a day they were interviewing a lot of travelers. I spotted parking in what looked to me like an overflow lot on the other side of a fence, and when I slowly drove that direction sirens blasted and guns were drawn. Nothing gives you clarity like a gun pointed at you.

Whoever explained this to you has done you a terrible disservice. The border is the border - on one side you are in the USA and on the other side you are outside it.

If there was a strip of land where you are not in a country then how can CBP assert any authority? No, you must be in America. There is no "no man's land," and there is no such thing as "international land" at America's borders where no law exists.

Related anecdote, there is a strip of international land between Egypt and Sudan, neither country wants it. https://en.wikipedia.org/wiki/Bir_Tawil

No-man's-lands exist (a very obvious one is the DMZ between North Korea and South Korea), but I believe the specific point was that no-man's-lands don't exist at the US borders.

I'd heard in another article around this, that in this particular situation they had said it was a routine border search. Not even something criminal, just routine procedure. Then that under neath all that they did in fact suspect something criminal and were using the standard stop as a pretext for criminal investigation is the constitutional violation.

“Your phone smells like weed”

Interesting that all that rules don't apply to water. The moment you stepped on a boat, coastal guard can (and do regularly) board it and conduct a search without any reasoning. They don't need any probable causes, warrants, nothing.

Seems like so far it didn't create any problems, so public is ok with that.

Interesting that the distinction between phones and boats was not enough to dissuade whatever point it is that you're trying to make.

From Chief Justice Roberts in Riley v. California: "One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy."

My point is: why don't anyone makes a fuss over water searches the same way as airports? It's been like that forever. There are reddit discussions about water searches, but never on HN or any news. To. Me it seems interesting discrepancy.

The same is true at any border crossing - you have to submit to searches by CBP agents, who don't need any probable cause. I believe device searches are still a somewhat greyer area, at least if password protected (as providing a password would be compelled speech, unlike a luggage search which can be conducted without any action from your part).

>as providing a password would be compelled speech

which is a good reminder for anyone with reason to be concerned about this sort of thing to turn off biometric/face id/etc. access to their devices.

on iphone - tap power button 5 times.

that's why GrapheneOS has biometric+pin

in autistic-land, doesn't it seem like the power to perform searches by border police should be directed related and limited to their function - that is the inspection of material goods to insure that (a) illegal smuggling isn't taking place and (b) the proper import taxes have been paid.

unless the phone itself is a suspicious good, there should never be any justification for a border officer to demand visibility of the contents of the phone, or the data that its permitted to access on other systems.

I presume the counter to this is that they must be able to examine the socials in order to see if you should 'death to america' on message boards. is that really an important vector? is the balance of that security concern versus speech rights (which are supposed to be 'universal') something we want individual field officers to decide?

I think one of their main justifications for claiming a right to inspect your phone is the possibility that you could be carrying illegal data on it, such as CSAM (which they apparently invoked in this particular case). Since they generally can inspect your luggage to check if you're crossing the border with illegal goods, this seems somewhat plausible as a legal interpretation.

Personally, I believe that there should be explicit laws protecting your personal devices, given the amount of sensitive private information they carry. I think an explicit law, or even amendment to the constitution, would be much better than relying on ever more arcane legal interpretations being invented by judges based on vague wording and vague principles.

That's nonsense because it's trivial to move data internationally without ever crossing a physical border.

There is no reason for anyone to ever try to smuggle digital data through a border crossing and so zero justification for ever conducting a digital search at the border.

Be that as it may, it is very much established law. CBP can search your phone when you are crossing the border without needing any specific justification other than the fact that you're crossing the border. Anything they find can then be used against you in other cases.

See for example https://www.jdsupra.com/legalnews/your-phone-can-be-searched...

general enforcement of federal law as a special exception of the 4th amendment doesn't seem to be in the charter passed by congress in https://www.law.cornell.edu/uscode/text/6/211

no judge thought there was sufficient evidence to grant a warrant in this case, so what you're saying is that any CBP agent can go fishing for anything they want. anyone can be detained for any reason that an individual CBP agent considers necessary.

There is established precedent on the fact that CBP can search the phone or other devices of anyone crossing the border for no reason whatsoever. I couldn't tell you the exact justification, but I guess it could have been found to follow from the act you cited: (2) ensure the interdiction of persons and goods illegally entering or exiting the United States;

See this article quoting a 7th circuit case on this matter: https://www.jdsupra.com/legalnews/your-phone-can-be-searched...

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