Anybody crossing the border. The justification is that the government's constitutional right to control imports overrides the 4th amendment right to privacy.
“The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.” Id. at 620. Because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” United States v. Flores-Montano, 541 U.S. 149, 152 (2004), “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border,” Ramsey, 431 U.S. at 616.
So the argument is basically that Americans already consent to allowing customs to search anything and everything that they are physically bringing across the border, whether a US citizen or not, and now that is also affirmed to include the digital contents of electronic devices.
Immigration Officers, without a warrant, may "within a reasonable distance from any external boundary of the United States...board and search for non-citizens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines reasonable distance as 100 air miles from the border.
Nearly two-thirds of the U.S. population, over 213 million people, reside within the region that CBP considers falling within the 100-mile border zone, according to the 2020 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.
Even worse: The Trump administration claimed international airports as part of the border. (I saw that once, months ago. I do not know what the legal state of that claim is, or even whether it is currently part of their theory of what they are allowed to do.)
“Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,”
I think this is just an extension of a general we, as government officials protecting American freedoms, can do what we want and will justify it later if we have to policy.
It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering).
It probably depends how pissed off you made the officer at the border if he just wants to thumb through some recent text messages and photos to see if you're doing Crimes or if they're gonna go take it to the Cellebrite UFED in the backroom and dump it out.
In other words... whom (or what) was perceived to have pissed in the CBP officer's Wheaties this morning? We'll never know what grudges he holds to make his decision.
This is a blatant and direct violation of the Fourth Amendment.
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.
My understanding is that SCOTUS has held since the 50s that 'the people' means people inside the country, and a border does not count as being granted entry into the country yet, therefore the Constitution doesn't really apply, especially for non-citizens.
(c) Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes.
And another gem from the same case that is recently all the more relevant:
Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government.
Meaning they can seize all your stuff and deport you if you criticize the government. Also, immigration lawyers are part of the Executive branch.
This effectively means border patrol can do whatever they want in areas that do not involve a border crossing and involve citizens just living their normal lives
Isn't it telling that if your immediate thought is to subvert said LAW? That doesn't seem to be serving the people then does it, but the state. The state is supposed to serve its people
I assume journalists would already do this actually maybe they don't?
There dosent appear to be any import/export controls on the current internet is there?
If they say import export control gives them the right to search citizens maybe they should be aware of this giant gapping hole that the internet created 30+ years ago?
Since removing a nation-state rootkit is not structurally possible, how is this any different from requiring the device to be forfeited? If all search == seizure and destruction, does that change the legal basis?
Doing a bit of research, this applies to what’s considered a “manual search” as in a CBP agent spending time manually looking at your phone. It does not appear to allow (or speak to?) plugging your phone into forensic tools for a deeper inspection.
Not great, but I think that’s what’s being specifically adjudicated here.
They still cannot deny an US citizen entry if you decline to unlock your phone, though they may confiscate your device. I don’t know if they would then be allowed to do deeper forensics without a warrant.
Everyone please read Surveillance Self Defense from EFF [0]
My advice, take a burner phone to the airport (and elsewhere?), and since devices are subject to warrantless search anywhere and everywhere, via exceptions to the fourth amendment [1] (the constitution seems designed to be bent or outright ignored), keep your data at home and encrypted. The "cloud" is a government data supermarket.
For example.
While the Fourth Amendment is the foundation, federal and state laws can add layers of complexity. For example, the Patriot Act expanded the government's ability to conduct surveillance and searches, particularly in national security cases, sometimes with a lower burden of proof than traditional criminal investigations.
When I travel internationally, I do not take any electronics with me.
If I need a cell phone, laptop, etc., then I will buy or rent something cheap at the destination.
I got into the habit while traveling back and forth the mainland China as it was our corporate policy (and we never brought any electronics back, either).
Then when I tried to log in to my Gmail account at my destination, it flagged it as a suspicious login attempt and wouldn't let me in without entering a code they texted to my American phone number, which meant I was locked out of my email for the duration of the trip.
Plus travel day realities often require your phone and accounts - plane tickets, Uber/Lyft, hotel reservations or updates from Airbnb with check-in instructions, door codes, etc.
It's a tremendous challenge and hassle for any regular person. We really just need to push back on the government overreach. It's tragic that half of the Trump voters proclaim to be "small government" and "Don't tread on me" but then tolerate things like this. There's certainly a bipartisan group of people opposed that are large enough to effect change if we work together.
I 100% agree that the best solution would be for the law to catch up and actually treat privacy as a human right. Until that time there are things which, while challenging and a hassle, do help.
I would use the same sim-card in the burner phone. Any attack by the government that they can do with your real sim card can also be done through phone number spoofing.
For email, use unique emails (things like booking+youremail@...) for reservations/bookings/tickets and have those forwarded to a second email account that you want to use during the trip. It is already good privacy hygiene to use unique emails for all types of registrations, and you will have more control when services eventually have a leak.
It isn't that they tolerate it, it simply doesn't affect them, so they don't care. Besides, it affects many they dislike, so that's always a bonus.
Remember, when ultra-partisans, of most political ideologies, demand rights and freedoms, there's almost always an implied "for me and mine" in there. Exceptions to this are extraordinarily rare, even more so nowadays.
The issue, as I understand it, is that someone with standing to sue over the 4th amendment would be prosecuted under a FISA court. Those cases due to how the court was created and structured, do not end up in front of the supreme court.
It's one of those weird things in the US constitution which allow for congress to create new federal courts which don't ultimately fall under the jurisdiction of the regular federal courts.
The article is not that clear in one way. Does this only apply to non-US Citizens ?
Anybody crossing the border. The justification is that the government's constitutional right to control imports overrides the 4th amendment right to privacy.
https://ww3.ca2.uscourts.gov/decisions/OPN/24-960_complete_o...
So the argument is basically that Americans already consent to allowing customs to search anything and everything that they are physically bringing across the border, whether a US citizen or not, and now that is also affirmed to include the digital contents of electronic devices.
Worse though, is that the definition of border is hella loose. CBP can be many MANY miles away from an actual border and do this.
100 miles to be clear. So many major cities are free reign. Entire counties.
https://www.aclu.org/know-your-rights/border-zone
from https://www.help.cbp.gov/s/article/Article-1253?language=en_...
from https://www.aclu.org/know-your-rights/border-zone
Even worse: The Trump administration claimed international airports as part of the border. (I saw that once, months ago. I do not know what the legal state of that claim is, or even whether it is currently part of their theory of what they are allowed to do.)
Setting the “100 mile” thingamajig aside - why wouldn’t you consider an international airport part of your border? It is a port of entry.
[delayed]
I can't find any definitive information on this. Disturbing if true.
Near the top of the article:
“Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,”
I think this is just an extension of a general we, as government officials protecting American freedoms, can do what we want and will justify it later if we have to policy.
It should probably be noted that this specific case led to a conviction of an actual crime (Bank fraud and money laundering).
East Germany built a wall to keep their citizens "free" of "fascist elements"...
You understand that no one actually believed that lie. It was built to stop people from running to west Germany.
Is it a visual search, or do they make a copy of all your data?
It probably depends how pissed off you made the officer at the border if he just wants to thumb through some recent text messages and photos to see if you're doing Crimes or if they're gonna go take it to the Cellebrite UFED in the backroom and dump it out.
In other words... whom (or what) was perceived to have pissed in the CBP officer's Wheaties this morning? We'll never know what grudges he holds to make his decision.
This case is about a “visual search” as in CBP agent going through your photos. Not forensic tools copying / analyzing all the data
This is a blatant and direct violation of the Fourth Amendment.
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.
This has not been true since 1977 at the very least, but Fourth Amendment exception at the border has been around for longer than even that.
My understanding is that SCOTUS has held since the 50s that 'the people' means people inside the country, and a border does not count as being granted entry into the country yet, therefore the Constitution doesn't really apply, especially for non-citizens.
https://supreme.justia.com/cases/federal/us/345/206/
And another gem from the same case that is recently all the more relevant:
Meaning they can seize all your stuff and deport you if you criticize the government. Also, immigration lawyers are part of the Executive branch.
I thought this was already allowed and the norm for many years?
You are right. What most people don’t understand however is that “the border” extends for 100 miles
https://www.aclu.org/know-your-rights/border-zone
This effectively means border patrol can do whatever they want in areas that do not involve a border crossing and involve citizens just living their normal lives
That concerns more than 220 million people in the USA, who can be arbitrarily stopped in the street and searched.
Be afraid...
...which is about 2/3rds the population of america.
So store your data in a secure location and only access it with devices if your a journalist?
Isn't it telling that if your immediate thought is to subvert said LAW? That doesn't seem to be serving the people then does it, but the state. The state is supposed to serve its people
I assume journalists would already do this actually maybe they don't?
There dosent appear to be any import/export controls on the current internet is there?
If they say import export control gives them the right to search citizens maybe they should be aware of this giant gapping hole that the internet created 30+ years ago?
[delayed]
Since removing a nation-state rootkit is not structurally possible, how is this any different from requiring the device to be forfeited? If all search == seizure and destruction, does that change the legal basis?
Doing a bit of research, this applies to what’s considered a “manual search” as in a CBP agent spending time manually looking at your phone. It does not appear to allow (or speak to?) plugging your phone into forensic tools for a deeper inspection.
Not great, but I think that’s what’s being specifically adjudicated here.
They still cannot deny an US citizen entry if you decline to unlock your phone, though they may confiscate your device. I don’t know if they would then be allowed to do deeper forensics without a warrant.
Everyone please read Surveillance Self Defense from EFF [0]
My advice, take a burner phone to the airport (and elsewhere?), and since devices are subject to warrantless search anywhere and everywhere, via exceptions to the fourth amendment [1] (the constitution seems designed to be bent or outright ignored), keep your data at home and encrypted. The "cloud" is a government data supermarket.
For example.
MUCH lower.
[0] https://ssd.eff.org/
[1] https://uslawexplained.com/warrantless_search
When I travel internationally, I do not take any electronics with me.
If I need a cell phone, laptop, etc., then I will buy or rent something cheap at the destination.
I got into the habit while traveling back and forth the mainland China as it was our corporate policy (and we never brought any electronics back, either).
I tried that once.
Then when I tried to log in to my Gmail account at my destination, it flagged it as a suspicious login attempt and wouldn't let me in without entering a code they texted to my American phone number, which meant I was locked out of my email for the duration of the trip.
Plus travel day realities often require your phone and accounts - plane tickets, Uber/Lyft, hotel reservations or updates from Airbnb with check-in instructions, door codes, etc.
It's a tremendous challenge and hassle for any regular person. We really just need to push back on the government overreach. It's tragic that half of the Trump voters proclaim to be "small government" and "Don't tread on me" but then tolerate things like this. There's certainly a bipartisan group of people opposed that are large enough to effect change if we work together.
I 100% agree that the best solution would be for the law to catch up and actually treat privacy as a human right. Until that time there are things which, while challenging and a hassle, do help.
I would use the same sim-card in the burner phone. Any attack by the government that they can do with your real sim card can also be done through phone number spoofing.
For email, use unique emails (things like booking+youremail@...) for reservations/bookings/tickets and have those forwarded to a second email account that you want to use during the trip. It is already good privacy hygiene to use unique emails for all types of registrations, and you will have more control when services eventually have a leak.
It isn't that they tolerate it, it simply doesn't affect them, so they don't care. Besides, it affects many they dislike, so that's always a bonus.
Remember, when ultra-partisans, of most political ideologies, demand rights and freedoms, there's almost always an implied "for me and mine" in there. Exceptions to this are extraordinarily rare, even more so nowadays.
has anybody ever challenged the PATRIOT Act on compliance with the 4th Amendment?
Not that it really matters, with the current Supreme Court being what it is, but still...
The issue, as I understand it, is that someone with standing to sue over the 4th amendment would be prosecuted under a FISA court. Those cases due to how the court was created and structured, do not end up in front of the supreme court.
It's one of those weird things in the US constitution which allow for congress to create new federal courts which don't ultimately fall under the jurisdiction of the regular federal courts.
https://en.wikipedia.org/wiki/Jurisdiction_stripping
And in response, every other country will start ejecting US citizens after rummaging though their meaningless online critiques of the glorious leader.
People did not think this policy through fully. =3