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Comment by lhnn | Hacker News Reader

>“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,”

Well frankly, in that case, I don't give a shit what you conclude, because you're mentally incompetent.

"We also conclude that following the Constitution for Americans reentering the country would put us in a bind for looking at whatever we want, so we're going to say that you don't need that right to privacy."

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Look, when you're at the border you're not technically in the country, you're at the frontier. You don't get constitutional protections when you're not within the borders of the US. Obviously this border is a legal fiction, insofar as you take a step of only 2 feet and suddely you're subject a wholly different legal regime, but that's how things are and that's how every nation on earth handles it, to my knowledge.

The Constitution does not forbid the government from conducting searches without warrants at the border. The word "reasonable" is in the 4th Amendment in order to defer judgement about what searches are and aren't constitutional to the the courts. Unfortunately for your argument, SCOTUS has for many many decades held that border searches are, subject to some limitations, reasonable.

The word "reasonable" is not in the 4th Amendment, nor does it contain text granting the power to search without a warrant.

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.

I do find it interesting that many people consider probable cause sufficient grounds to conduct a warrantless search. Probable cause is one of the requirements to get a warrant, thus such thinking leads to the absurd situation where warrantless searches have a lower bar than warranted searches (which have additional requirements).

You're right. I should have said "the concept of reasonableness" instead of "the word reasonable". Either way: unless you think James Madison was incompetent, the subjective word "unreasonable" appears in the amendment alongside the objective word "warrant" entirely in order to give the courts leeway to make case-by-case decisions about authorizing searches. The word "unreasonable" was no clearer in the 1780s than it is now.

There are times on HN when I am probably on very shaky ground arguing about con law concepts, but this is not one of them. Every modern Supreme court from Lochner through New Deal through Warren through Rehnquist has validated the idea that the 4th Amendment does not include a rigid requirement for every search to be accompanied by a warrant.

(Before reading Ely's _Democracy and Distrust_ this week, which, fantastic book, I'd have said "every Supreme Court ever", but now I'm not so sure since Ely cites a floor speech supporting the 14th Amendment that implies the 4th Amendment was interpreted differently in the mid-1800s.)

the subjective word "unreasonable" appears in the amendment alongside the objective word "warrant" entirely in order to give the courts leeway to make case-by-case decisions about authorizing searches.

This looks like it agrees with my point: the warrant process is the objective mechanism by which the subjective reasonable/unreasonable decision is carried out. This says nothing about the permissibility of searches where the warrant process is skipped.

Of course, one can choose to assume there exists some unwritten permission for searches other than via the warrant process, but then we're no longer discussing the rule of law.

This looks like it agrees with my point: the warrant process is the objective mechanism by which the subjective reasonable/unreasonable decision is carried out.

No, the warrant process is an objective mechanism by which the subjective decision is carried out. You have no textual grounds for saying it's the exclusive method, and there's no precedential support for it either. If we were to posit it as the only reasonable mechanism, then a police officer who observed you stuffing a dead body into the trunk of your car would be powerless to delay you absent a warrant, which is clearly a ridiculous position.

The role of the warrant is to allow the police to barge/kick in your door on the basis of available information rather than having to stake you out in hopes that you'll expose your criminal activity to them, which would allow them to conduct a regular search. It's not a prerequisite to a search and never has been AFAIK.

You need a better understanding of common law and civil law. We're a common law country, and the Constitution is an instrument of common law. If you try to interpret it as the entire operating manual for the country, you'll end up in crazyland.

Here "the border" is a 100 mile wide buffer zone near the border. This is just ridiculous.

Again: that is something crazy the DHS said, and it's something SCOTUS has refuted. The idea of a 100 mile border search zone is obviously absurd.

Reference, please? If this has been challenged in court, I'd love to see some evidence so I can stop worrying about it.

Ameida-Sanchez v. US

    But the search of the petitioner's automobile by a roving patrol, on a
    California road that lies at all points at least 20 miles north of the
    Mexican border,[5] was of a wholly different sort. In the absence of
    probable cause or consent, that search violated the petitioner's
    Fourth Amendment right to be free of "unreasonable searches and
    seizures."

Sweet, thanks. :)

They should make supreme court justices try to drive across the Mexico border once per year.

I think that, aside from disagreeing with most of that principle, it is futile to search the contents of electronic devices at the border. I could ship an encrypted device through mail, I could use steganography and encryption to upload a file to a personal server and have someone immediately unplug said server... there are lots of ways to transport digital files that don't involve the physical device at the border.

My response to this is complicated (but I'll keep it short):

* I agree with you that anyone who wants to avoid being effectively searched at a border can and there's little the government can ever do about it.

* I think most of the people carrying (say) child pornography into the country aren't too bright to begin with, so maybe that doesn't matter.

* I remember being very upset about the border search exception when I learned about it 10 years ago. It still bugs me.

* If the principal you're disagreeing with is that the state's interests in a secure border outweigh the individual's right to be free from casual, minimally invasive searches, you should know that you're disagreeing with something like 10+ SCOTUS opinions going back to at least the early '70s.

* If the principal you're disagreeing with is that the 4th Amendment allows judges to fill in the blanks on what "reasonable" means, and that "reasonable" overrides "warrant", know that you're disagreeing with something like 175 years of jurisprudence.

* I definitely agree that electronic searches are nonminimal and highly invasive.

This event, described at the end of the article, does not sound like a "casual, minimally invasive search" to me:

"At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.

Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained that he was earning a doctoral degree at a Canadian university on the topic of the modern history of Shiites in Lebanon.

He was handcuffed and then jailed for three hours while the authorities looked through his computer while numerous agents questioned him, according to the suit, which is pending in New York federal court."

I definitely agree that electronic searches are nonminimal and highly invasive.

it is futile to search the contents of electronic devices at the border.

Just because you wouldn't store anything incriminating/contraband doesn't mean that nobody else will. Quite a few searches of laptops and digital cameras have led to discovery of child pron, sob obviously not everyone shares your understanding of data security.

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