Customs has always been able to search everything without a warrant or suspicion when crossing the border. I guess this is saying that they can search the digital contents of physical devices/media as well?
"To be sure, nonroutine searches, which are “more invasive
searches, like strip searches, require reasonable suspicion.” Id. But we
have held that “the label ‘non-routine’ should generally be reserved
for intrusive border searches of the person (such as body-cavity
searches or strip searches), not belongings.” United States v. Levy, 803
F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added)."
So carry a separate device while traveling. Or wipe your phone, then restore after the border. This is just going to lead to a service that does this for you and the overreaching feds won’t be able to do anything about it.
And as far as I can tell you still don’t have to give them your pin code.
Not really. Cellebrite isn't magic. If you have an up to date OS and a strong password not pin, encryption functions as it should. The best thing to do is simply have a travel phone.
They can investigate all they want, they can even detain you briefly, but if you are a citizen and there’s no evidence of a crime then they have to let you in.
That doesn't support the proposition that carrying a new or previously-cleaned phone across the border is cause for suspicion. In that case, the defendant wiped the phone after he was encountered by CBP.
What are they going to do if you’re not carrying anything illegal and you’re a citizen? You cannot be refused entry to the US as a citizen and they can’t charge you or hold you without evidence. You don’t have to tell them why your phone is wiped, just stay silent until you’re released.
The best time to delete all social media accounts and never post anything online with your name attached ever again was 10 years ago. The second best time is right now. This stuff can and will be used against you out of context 10, 20, 30 years into the future.
Also consider the fact that if someone else makes accounts in your name (whether maliciously or simply because they share the same name) I imagine this could be used against you.
This has happened to multiple people I know who have deleted a Facebook account. Shortly after, a fake account with their picture and info popped up. I wonder if there are bots scanning for this waiting for people to delete accounts.
Maybe not all customs are created equally, but flying between Toronto and the states I have never had to show my phone let alone my social accounts. Also never seen that going up through customs.
It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
The 4th Amendment says, exactly:
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 not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].
So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?
Two main cases and the interpretation there-of [0]. The most expansive interpretation of the 100 mile zone that includes all coastal areas hasn't really been tested and AFAIK CBP mostly uses it in a more justifiable area around land borders so far relying on other justifications for more inland operations.
It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.
Because you can't exactly sneak on/off of an international airplane. It should be pretty trivial for customs to funnel travelers through a checkpoint where they can search at the time of the actual border crossing.
Likewise we now have the technology to automatically surveil the border 24/7 (maybe modulo tunnels, though I wouldn't be surprised if we could detect those too?), so a 100-mile exception only ever becomes more and more dubious. We could've built the wall and lined it with a surveillance system for less than the cost of this Iran war (never mind all the m̶o̶n̶e̶y̶ ̶p̶r̶i̶n̶t̶i̶n̶g̶ stimulus this decade), shutting up the whole border debate once and for all, and ending justifications for internal surveillance for trafficking.
Because you can't exactly sneak on/off of an international airplane.
I'm actually pretty curious about this. You can't easily sneak on/off a commercial international airplane, but that's because they've got the gates set up in the airport to funnel you through a specific path that leads to customs. Showing up on an international charter or GA flight seems squishier. http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20... The process seems to be that you schedule an ETA, taxi to a CBP station and wait there until a CBP officer arrives.
On the other side of it, it looks like CANPASS would let you land in Canada even if the CBSA station is closed...
Sure, but if you're driving in NM or TX or AZ, what constitutes that reasonable basis for a stop? As long as the car is legal, there can't be any, yet they still do roving patrols. The also stop buses and trains mid-transit (not at stations), which again, hard to conceive of why that would be necessary - if they know an illegal is on a bus/train, sure stop it and get the person, but asking everybody onboard - should be illegal.
That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?
Well intentioned laws today can be used by illintentioned actors in the future, and mild legal exceptions can become significant ones with a couple additions.
The 100 mile zone is a good example - that 100 mile zone assumes the entirety of the great lakes is international waters, even though Lake Michigan is 100% American Territory and over 300 miles long. So, you could be in a landlocked county of Indiana, and be harassed by the federal government for being in a border zone.
Whats to stop someone from saying, the entire Mississippi river and its tributaries are a border zone? With that you could get 80% of the US population into the border zone.
By enabling some "rule based" decisions that skirt the constitution, you enable a legal mechanism for constitutional rights to be violated without any legislation.
The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
The US has famously failed to update its legal framework via the legislative branch, so
It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today
It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting…
Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
There, shoftim refers to judges who interpret and apply the law, requiring deep literacy in the Torah to ensure righteous judgment without favoritism or bribery. Shotrim are the enforcers of the court (sheriffs, etc.).
I don't know where people get the idea that the role of a judge is not to interpret the law. This is literally the only thing SCOTUS does.
It's their job to interpret but not to invent new laws or ponder which laws "make sense".
In particular just because it "makes sense" to extend 4th amendment reading doesn't justify judges just going for it. That would be legislating from the bench.
Yeah the plain language is unambiguous. That there is an historical border search exception simply doesn't matter to me. We fought a war for this, and it's bullshit.
I mean... yea we also have some shaky interpretations of the 1st amendment (see especially, assembly), 2nd, 5th (e.g. the incredible pressure for plea bargaining), 6th (which, paradoxically, is a major reason for aforementioned pressure on plea bargaining, so I kinda get it), 8th given how bad some prisons are, arguably 10th (even if I am personally not a fan of the 10th amendment so much), and arguably still the 15th (though it's obviously orders of magnitude better than the first 100 years of its existence).
And also various other parts of the construction, like the interstate commerce clause does some comically heavy lifting.
If you torture the US constitution enough it will eventually confess.
There are a lot of issues that fail the constitutional grep test yet somehow they are deemed (un)constitutional. The constitution was written to protect the people and states from the overly zealous congress. Not to fix the situation in which the congress is so dysfunctional that the judiciary has to replace it.
Do constitutional rights apply to non-citizens? I always thought the constitution of the USA was for USA citizens, but then I'm not from the USA and am watching all this from very far away.
Most of them do. The Constitution is clear on when it talks about citizens versus all people. The exceptions are things like the right to vote or hold federal office.
Most of them do. They're usually constructed as restrictions on the government's authority rather than grants of rights to a specific group of people, and there are court rulings clearly stating rights like freedom of speech and freedom from unreasonable search apply to any person subject to the government's authority.
Non-citizens don't get the right to bear arms as far as I know.
The word "unreasonable" leaves the entire thing up to interpretation. Is it "reasonable" to search a traveler's phone with no indication of any wrongdoing? You'd probably say no. I'd say no. The courts say yes. Neither answer is objectively right or wrong according to this text.
Also crazy that lake michigan counts as the border, despite being entirely in the US, so you could be minding your business in Fort Wayne, Indiana and have your phone searched for no reason.
It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
People keep misconstruing this.
The border search exemption only applies when someone is actually crossing a border, and it does grant broad authority to search whatever they're carrying with them at the time. The authority to do border enforcement within a 100-mile zone around borders does not grant a broad authority to search. It does grant a narrow authority to do things like traffic checkpoints, but those don't permit searches for anything smaller than a person without additional evidence.
I do think the ruling establishing the authority to run checkpoints other than actual border crossings was wrongly decided and harmful, but it's not what's at issue in this case.
To add to that, the ruling intentionally did not make a decision on two important distinctions:
1. Forcing you to unlock - in this case, Alisigwe unlocked their phone willingly after being asked.
2. Forensic extraction - the ruling does not give authorities the power to run a sophisticated off-site break-in on your phone without reasonable suspicion.
So if you are a US citizen, and you are willingly unlocking your phone at the border (or you don't have a passcode), the Fourth Amendment no longer protect you from a suspicionless manual search of the phone at the border
Proximity to borders leaves the government the possibility that if it really, really wanted to search a property, they'd just have to cede some land in a 100mile radius to a foreign country and instantly create an international border wherever they need one.
We gave the government the ability to police itself and there's no punishments for poor rulings.
The structure of the Supreme Court is foolish. It made sense initially, having the people who drafted the constitution adjudicate it. But I think it would be better to drop SCOTUS all together, letting the Federal courts sort out their disagreements via consensus. Or have a review panel setup like the House (elected, population based) who have the ability to override rulings and censure/discipline judges who make poor rulings.
Either way, we need more people involved in the process.
Anyone still crossing US borders with electronic devices that aren't fully wiped? This is company policy for some European companies for a long time. Even during the Biden administration.
Most employees just receive a wiped phone/laptop for the duration of the trip. Depending on the country its either a device that only has access to the bare minimum of Services, or for countries like Russia they issue a dumb phone that can only call and text.
Half of the commenters here seem to believe that nobody has ever done this successfully because it must be “suspicious”. Despite it being a common practice for many organizations.
It might be suspicious, but they don't get any incriminating evidence that way. It's also much easier for people visiting. Most of the time entry is denied and you can take the next plane back home. I'm fine with that, don't care. I only care if I would get taken into ICE detention. This risk grew significantly, so I simply won't go.
Is there any difference between US citizens and visitors? It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal. Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
Ps: we also don't have some special paramilitary border police. Just regular police stationed at the border.
It's not routine. Most tourist visitors don't have any trouble. I'm a US citizen, but I've never had my phone searched at an airport or border crossing, not that I cross the border all that often.
I know it isn't routine. But it does happen. I know two people that had to go into secondary inspection and I think they had to unlock their phones. Both of them were completely normal business travelers without anything dubious in their life or their business. One was a medical doctor another one a government employee going to an international conference hosted by a US federal institution (which required some extensive clearance and background checks to even attend). Both Western European citizens with a completely spotless CV.
all of our police are essentially paramilitary now. There's nothing special about ICE or CBP other than they're federal rather than local. Even local cops have become hyper-militarized and think they're patrolling the streets of Fallujah
It's the same thing for US citizens entering the US. They can try to search your device, and they can seize it temporarily (although that may end up being a long temporarily), but they can't deny you entry.
For a non-citizen, it's basically comply or go home, possibly with a fun stay in a detention center first.
Yes, there's a difference: US citizens have the right to enter the USA; visitors do not. US officials can deny a visitor entry arbitrarily, and the visitor has limited recourse to appeal such a decision. A visitor who does not cooperate with officials who want to search something is likely to be denied entry.
A citizen may only be denied entry if they're entering the country for the purpose of committing a crime, and if the government can prove that, they'll probably admit the citizen and immediately arrest them instead.
A US citizen cannot be denied entry into the country for ANY reason. A valid US passport is prima facie evidence of citizenship so once you show it the worst that can happen is you getting arrested.
It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched
What home country is that? Some places (UK I think is one) have less protection at the border for citizens than the US does. The risk of being searched for Average Joe is so small that most people don't even think about it. HN is disproportionately worried.
I do that several times a year, and never wipe my phone. I looked at statistics of such phone examinations over the last few years, and I didn't see any difference between the current and last administrations, when nobody was wiping their phones.
I will be wiping my before I pass through US Customs next, no matter who the president is. I have no idea what some guard might randomly take issue with, best not to risk it.
This is confusing; what happens to you if you refuse a warantless search of your property?
I'm a US citizen returning home. Do they just... send me back out of the country? :) I don't suppose they'd have the grounds to arrest me since there is no law that I can see being broken. I suppose they could keep the device until such time that a warrant could be obtained to digitally search / break into the device (but that requires some reasonable suspicion - simply refusing a warantless search isn't it).
Not for this they can't. They can seize your belongings but they can't detain you for something that isn't a crime and they cannot prevent you from entering the country if you're a citizen. You have an absolute right per Supreme Court rulings to enter the country unconditionally as a citizen
As a citizen they cannot block you from returning to the country. What they can do however is seize your devices (and briefly your person) and other property.
It's a massive swing and a miss that GrapheneOS has a religious opposition to a VeraCrypt-style hidden volume arrangement that allows different passwords to unlock different OS volumes.
It would be vastly superior to their current solution, which basically guarantees contempt charges.
The problem is it will be detectable and detected and then the password demanded and a failure to provide it will result in charges. I think unfortunately the answer is the phone has to be plausibly empty when crossing the US border, they should focus their efforts on being able to store the full state of the phone remotely and encrypted and being able to restore it easily.
Would it be detectable to some goon at the border? Probably not. They'd put in the sanitized password, see nothing, and let the person go. If it gets seized and an FBI or CIA analyst gets ahold of it, then yeah the smart guys are going to see it but you'd be in that situation anyway, so why not have an out that may avoid it?
This happened to me last month in Halifax Canada, I wanted to board a transfer flight to Amsterdam, going through Boston. I was stopped as I had salts with me from a buddhist relic I couldn't exactly identify. The machine said it contained a primary explosive (silver azide). I was ordered to give my access code to my iphone and 3 suspicious screenshots were found I made 2 years ago about the Iran/Israel war. I said I'm interested in geo-politics and watched the news.
I was barred from the US for life - it was said that it could have been much worse. When I wanted to go to the main airport hall a number of canadian police officers arrested me and drove me handcuffed to a cell.
I was asked if I wanted a lawyer and they arranged a phone call. The lawyer said I would spend to nights in a cell and then she would come to prepare my case and was strongly advised not to talk to people before that.
I was released from my cell 7 hours later that evening after a thorough and friendly conversation with the canadian special police.
I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job. That day there was a threat alert I heard later.
A week later I heard from the person who gave me the relic (I was on retreat) that the border guard contacted them and said it was a false positive (what I suspected at the time, but I didn't dare argue against the machine results).
And just to clarify another element of the story: there is a significant legal difference between pre-clearance in a Canadian airport and landing in the US and proceeding through customs on US soil. At a pre-clearance station, you are still on Canadian soil. I'm sure there are exceptions, but you generally can "withdraw your application to enter" and basically just turn around and walk away from the border. If you decide you don't want to unlock your phone for the CBP officer, you can walk away. At that point they've already seen your passport and you're going to be flagged and may never be approved for entry again, but you're not going to end up on a CBP facility. Once you're through, you'll need to clear Canadian customs to go back, but if something happens it will be Canadian police that arrest you.
I’m confused why they would contact the person that gave you the relic to tell them it was a false positive? It doesn’t seem like something they would do. Why not contact you?
And now you're extra suspicious if you don't have one at all
Customs has always been able to search everything without a warrant or suspicion when crossing the border. I guess this is saying that they can search the digital contents of physical devices/media as well?
It says they can manually search them. According to this, the ruling explicitly doesn’t say if they can digitally search them.
digitally also means “using the fingers”, so never consent to a digital search without prior clarification
You using the whole fist, doc?
Breathe easy.
Not everything. From the case itself:
"To be sure, nonroutine searches, which are “more invasive searches, like strip searches, require reasonable suspicion.” Id. But we have held that “the label ‘non-routine’ should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings.” United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added)."
So carry a separate device while traveling. Or wipe your phone, then restore after the border. This is just going to lead to a service that does this for you and the overreaching feds won’t be able to do anything about it.
And as far as I can tell you still don’t have to give them your pin code.
They don't need your pin, they can just hack the phone take all your data anyway. ICE has a contract with Cellebrite
Not really. Cellebrite isn't magic. If you have an up to date OS and a strong password not pin, encryption functions as it should. The best thing to do is simply have a travel phone.
the worry is that this will be interpreted as tampering and cary consequences.
This would not be tampering, because you haven’t tampered with anything. The “evidence” is simply at home.
The law isn't a computer program. Intent matters.
Try proving intent when it’s a common practice. I’d even say it’s a best practice these days, especially for business.
You’re fearmongering. Find me a case of someone getting prosecuted for having a burner phone. It doesn’t exist.
It's been somewhat established that having a wiped or basic phone is in itself sus and reason for them to investigate you further.
They can investigate all they want, they can even detain you briefly, but if you are a citizen and there’s no evidence of a crime then they have to let you in.
They have more guns than you do, and these days, most of the judges are blindly and shamelessly on their side. They don't "have" to do jack.
You’re fearmongering. Despite what some may say, it’s not Nazi Germany. Rule of law still has sway.
Find me caselaw where a “basic” phone was used as valid evidence. Or where the phone was already empty when someone began to approach the border.
Rule of Law was very strong in Nazi Germany. Everything that regime did was legal in Germany at the time.
I mean they'll shoot protesters execution-style and retroactively declare that person a terrorist before they've even done any investigations.
It's not Nazi Germany, but this administration has certainly demonstrated that they're not above inventing reasons to justify their actions later.
Have not heard this, whats your source? I don't see how they could determine that because "its a new phone" is hard to dispute.
best case scenario is that a higher court overturns this but not holding my breath.
Do you have any references to this?
https://news.ycombinator.com/item?id=49386895
That doesn't support the proposition that carrying a new or previously-cleaned phone across the border is cause for suspicion. In that case, the defendant wiped the phone after he was encountered by CBP.
What are they going to do if you’re not carrying anything illegal and you’re a citizen? You cannot be refused entry to the US as a citizen and they can’t charge you or hold you without evidence. You don’t have to tell them why your phone is wiped, just stay silent until you’re released.
The problem with these laws isn't that they can search you at the border. It's that they can search you within 100 miles of the border (https://en.wikipedia.org/wiki/Border_search_exception). The total number of people who live within that zone is 213 Million people, or 2/3 of the total population (https://www.aclu.org/know-your-rights/border-zone).
Seems like a generally terrible idea. Why this cannot be one day changed to 200 miles on a whim?
It will, one day, be changed to 200 miles (or more) on a whim
The best time to delete all social media accounts and never post anything online with your name attached ever again was 10 years ago. The second best time is right now. This stuff can and will be used against you out of context 10, 20, 30 years into the future.
Completely agree.
Does HN comply with CCPA requests?
Also consider the fact that if someone else makes accounts in your name (whether maliciously or simply because they share the same name) I imagine this could be used against you.
This has happened to multiple people I know who have deleted a Facebook account. Shortly after, a fake account with their picture and info popped up. I wonder if there are bots scanning for this waiting for people to delete accounts.
I always thought it was bold for people to post anything using their real identity.
You never know if a stance you have now will be frowned upon in 5 or 10 years from now.
I’ve heard you can’t pass customs with a phone without your social network accounts.
Maybe not all customs are created equally, but flying between Toronto and the states I have never had to show my phone let alone my social accounts. Also never seen that going up through customs.
It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
The 4th Amendment says, exactly:
I do not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].
[1] https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...
https://en.wikipedia.org/wiki/Border_search_exception apparently
So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?
Yeah, where does this come from? Who keeps defending this, has it been challenged?
About 213 million people live in this zone, so 2/3 of people in the USA. So I guess the 4th amendment doesn't actually apply to most US citizens?
Two main cases and the interpretation there-of [0]. The most expansive interpretation of the 100 mile zone that includes all coastal areas hasn't really been tested and AFAIK CBP mostly uses it in a more justifiable area around land borders so far relying on other justifications for more inland operations.
[0] ^f Supreme Court: https://forumtogether.org/article/explainer-u-s-border-patro...
It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.
I've heard (but can't back up) that any city with an international airport counts as a 'border' for this purpose.
Probably. If international flights are arriving, why wouldn't it?
Because you can't exactly sneak on/off of an international airplane. It should be pretty trivial for customs to funnel travelers through a checkpoint where they can search at the time of the actual border crossing.
Likewise we now have the technology to automatically surveil the border 24/7 (maybe modulo tunnels, though I wouldn't be surprised if we could detect those too?), so a 100-mile exception only ever becomes more and more dubious. We could've built the wall and lined it with a surveillance system for less than the cost of this Iran war (never mind all the m̶o̶n̶e̶y̶ ̶p̶r̶i̶n̶t̶i̶n̶g̶ stimulus this decade), shutting up the whole border debate once and for all, and ending justifications for internal surveillance for trafficking.
I'm actually pretty curious about this. You can't easily sneak on/off a commercial international airplane, but that's because they've got the gates set up in the airport to funnel you through a specific path that leads to customs. Showing up on an international charter or GA flight seems squishier. http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20... The process seems to be that you schedule an ETA, taxi to a CBP station and wait there until a CBP officer arrives.
On the other side of it, it looks like CANPASS would let you land in Canada even if the CBSA station is closed...
Sure, but if you're driving in NM or TX or AZ, what constitutes that reasonable basis for a stop? As long as the car is legal, there can't be any, yet they still do roving patrols. The also stop buses and trains mid-transit (not at stations), which again, hard to conceive of why that would be necessary - if they know an illegal is on a bus/train, sure stop it and get the person, but asking everybody onboard - should be illegal.
That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?
Well intentioned laws today can be used by illintentioned actors in the future, and mild legal exceptions can become significant ones with a couple additions.
The 100 mile zone is a good example - that 100 mile zone assumes the entirety of the great lakes is international waters, even though Lake Michigan is 100% American Territory and over 300 miles long. So, you could be in a landlocked county of Indiana, and be harassed by the federal government for being in a border zone.
Whats to stop someone from saying, the entire Mississippi river and its tributaries are a border zone? With that you could get 80% of the US population into the border zone.
By enabling some "rule based" decisions that skirt the constitution, you enable a legal mechanism for constitutional rights to be violated without any legislation.
The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
As you snipped out
Yes but it's still not the job of the judges to do that for them.
Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
There, shoftim refers to judges who interpret and apply the law, requiring deep literacy in the Torah to ensure righteous judgment without favoritism or bribery. Shotrim are the enforcers of the court (sheriffs, etc.).
I don't know where people get the idea that the role of a judge is not to interpret the law. This is literally the only thing SCOTUS does.
It's their job to interpret but not to invent new laws or ponder which laws "make sense".
In particular just because it "makes sense" to extend 4th amendment reading doesn't justify judges just going for it. That would be legislating from the bench.
Yeah the plain language is unambiguous. That there is an historical border search exception simply doesn't matter to me. We fought a war for this, and it's bullshit.
I mean... yea we also have some shaky interpretations of the 1st amendment (see especially, assembly), 2nd, 5th (e.g. the incredible pressure for plea bargaining), 6th (which, paradoxically, is a major reason for aforementioned pressure on plea bargaining, so I kinda get it), 8th given how bad some prisons are, arguably 10th (even if I am personally not a fan of the 10th amendment so much), and arguably still the 15th (though it's obviously orders of magnitude better than the first 100 years of its existence).
And also various other parts of the construction, like the interstate commerce clause does some comically heavy lifting.
If you torture the US constitution enough it will eventually confess.
There are a lot of issues that fail the constitutional grep test yet somehow they are deemed (un)constitutional. The constitution was written to protect the people and states from the overly zealous congress. Not to fix the situation in which the congress is so dysfunctional that the judiciary has to replace it.
Do constitutional rights apply to non-citizens? I always thought the constitution of the USA was for USA citizens, but then I'm not from the USA and am watching all this from very far away.
Most of them do. The Constitution is clear on when it talks about citizens versus all people. The exceptions are things like the right to vote or hold federal office.
Most of them do. They're usually constructed as restrictions on the government's authority rather than grants of rights to a specific group of people, and there are court rulings clearly stating rights like freedom of speech and freedom from unreasonable search apply to any person subject to the government's authority.
Non-citizens don't get the right to bear arms as far as I know.
Generally yes but government can currently cancel your visa due to exercising those rights in many cases.
The word "unreasonable" leaves the entire thing up to interpretation. Is it "reasonable" to search a traveler's phone with no indication of any wrongdoing? You'd probably say no. I'd say no. The courts say yes. Neither answer is objectively right or wrong according to this text.
Also crazy that lake michigan counts as the border, despite being entirely in the US, so you could be minding your business in Fort Wayne, Indiana and have your phone searched for no reason.
People keep misconstruing this.
The border search exemption only applies when someone is actually crossing a border, and it does grant broad authority to search whatever they're carrying with them at the time. The authority to do border enforcement within a 100-mile zone around borders does not grant a broad authority to search. It does grant a narrow authority to do things like traffic checkpoints, but those don't permit searches for anything smaller than a person without additional evidence.
I do think the ruling establishing the authority to run checkpoints other than actual border crossings was wrongly decided and harmful, but it's not what's at issue in this case.
To add to that, the ruling intentionally did not make a decision on two important distinctions:
1. Forcing you to unlock - in this case, Alisigwe unlocked their phone willingly after being asked.
2. Forensic extraction - the ruling does not give authorities the power to run a sophisticated off-site break-in on your phone without reasonable suspicion.
So if you are a US citizen, and you are willingly unlocking your phone at the border (or you don't have a passcode), the Fourth Amendment no longer protect you from a suspicionless manual search of the phone at the border
Proximity to borders leaves the government the possibility that if it really, really wanted to search a property, they'd just have to cede some land in a 100mile radius to a foreign country and instantly create an international border wherever they need one.
We gave the government the ability to police itself and there's no punishments for poor rulings.
The structure of the Supreme Court is foolish. It made sense initially, having the people who drafted the constitution adjudicate it. But I think it would be better to drop SCOTUS all together, letting the Federal courts sort out their disagreements via consensus. Or have a review panel setup like the House (elected, population based) who have the ability to override rulings and censure/discipline judges who make poor rulings.
Either way, we need more people involved in the process.
Anyone still crossing US borders with electronic devices that aren't fully wiped? This is company policy for some European companies for a long time. Even during the Biden administration.
Most employees just receive a wiped phone/laptop for the duration of the trip. Depending on the country its either a device that only has access to the bare minimum of Services, or for countries like Russia they issue a dumb phone that can only call and text.
Half of the commenters here seem to believe that nobody has ever done this successfully because it must be “suspicious”. Despite it being a common practice for many organizations.
It might be suspicious, but they don't get any incriminating evidence that way. It's also much easier for people visiting. Most of the time entry is denied and you can take the next plane back home. I'm fine with that, don't care. I only care if I would get taken into ICE detention. This risk grew significantly, so I simply won't go.
It's frankly insane that y'all have to do that, and yes Americans cross the border, perhaps haplessly.
Is there any difference between US citizens and visitors? It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal. Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
Ps: we also don't have some special paramilitary border police. Just regular police stationed at the border.
It's not routine. Most tourist visitors don't have any trouble. I'm a US citizen, but I've never had my phone searched at an airport or border crossing, not that I cross the border all that often.
I know it isn't routine. But it does happen. I know two people that had to go into secondary inspection and I think they had to unlock their phones. Both of them were completely normal business travelers without anything dubious in their life or their business. One was a medical doctor another one a government employee going to an international conference hosted by a US federal institution (which required some extensive clearance and background checks to even attend). Both Western European citizens with a completely spotless CV.
all of our police are essentially paramilitary now. There's nothing special about ICE or CBP other than they're federal rather than local. Even local cops have become hyper-militarized and think they're patrolling the streets of Fallujah
It's the same thing for US citizens entering the US. They can try to search your device, and they can seize it temporarily (although that may end up being a long temporarily), but they can't deny you entry.
For a non-citizen, it's basically comply or go home, possibly with a fun stay in a detention center first.
Yes, there's a difference: US citizens have the right to enter the USA; visitors do not. US officials can deny a visitor entry arbitrarily, and the visitor has limited recourse to appeal such a decision. A visitor who does not cooperate with officials who want to search something is likely to be denied entry.
A citizen may only be denied entry if they're entering the country for the purpose of committing a crime, and if the government can prove that, they'll probably admit the citizen and immediately arrest them instead.
A US citizen cannot be denied entry into the country for ANY reason. A valid US passport is prima facie evidence of citizenship so once you show it the worst that can happen is you getting arrested.
What home country is that? Some places (UK I think is one) have less protection at the border for citizens than the US does. The risk of being searched for Average Joe is so small that most people don't even think about it. HN is disproportionately worried.
Yes, the vast majority of US citizens returning from international travel cross the border with their regular personal, unwiped phones every day.
I do that several times a year, and never wipe my phone. I looked at statistics of such phone examinations over the last few years, and I didn't see any difference between the current and last administrations, when nobody was wiping their phones.
Wiping phones/laptops before entering the US is common practice for many organizations for over a decade now.
I will be wiping my before I pass through US Customs next, no matter who the president is. I have no idea what some guard might randomly take issue with, best not to risk it.
Yes, the whole system is broken for a long time. Basically since 9/11.
This is confusing; what happens to you if you refuse a warantless search of your property?
I'm a US citizen returning home. Do they just... send me back out of the country? :) I don't suppose they'd have the grounds to arrest me since there is no law that I can see being broken. I suppose they could keep the device until such time that a warrant could be obtained to digitally search / break into the device (but that requires some reasonable suspicion - simply refusing a warantless search isn't it).
They let you in and keep your property. I've never had an issue at a border, but I still keep my devices encrypted and powered off when crossing.
They detain you, probably take and keep your stuff, and within a relatively short amount of time release you.
Well, they probably release you. If you're brown or just dealing with the wrong people they may unlawfully beat, kidnap, and exile you anyway (https://en.wikipedia.org/wiki/Deportations_of_U.S._citizens_...).
They can put you in custody.
Not for this they can't. They can seize your belongings but they can't detain you for something that isn't a crime and they cannot prevent you from entering the country if you're a citizen. You have an absolute right per Supreme Court rulings to enter the country unconditionally as a citizen
As a citizen they cannot block you from returning to the country. What they can do however is seize your devices (and briefly your person) and other property.
It's a massive swing and a miss that GrapheneOS has a religious opposition to a VeraCrypt-style hidden volume arrangement that allows different passwords to unlock different OS volumes.
It would be vastly superior to their current solution, which basically guarantees contempt charges.
I hope they change their mind soon!
This. There should be a password that unlocks to a fairly minimal, but not too minimal configuration that wouldn't have anything of interest on it.
What do you imagine being on your phone that is "of interest" to CBP at a border crossing?
Perhaps a screenshot of a politically-incorrect social media post.
https://news.ycombinator.com/item?id=49759504
The problem is it will be detectable and detected and then the password demanded and a failure to provide it will result in charges. I think unfortunately the answer is the phone has to be plausibly empty when crossing the US border, they should focus their efforts on being able to store the full state of the phone remotely and encrypted and being able to restore it easily.
Would it be detectable to some goon at the border? Probably not. They'd put in the sanitized password, see nothing, and let the person go. If it gets seized and an FBI or CIA analyst gets ahold of it, then yeah the smart guys are going to see it but you'd be in that situation anyway, so why not have an out that may avoid it?
Hidden volumes are impossible to detect, even with the password to the 'clean' volume and full device access.
Hidden volumes are not detectable and impossible to prove, even with the password to the clean volume and device access. That's the entire point.
[delayed]
This happened to me last month in Halifax Canada, I wanted to board a transfer flight to Amsterdam, going through Boston. I was stopped as I had salts with me from a buddhist relic I couldn't exactly identify. The machine said it contained a primary explosive (silver azide). I was ordered to give my access code to my iphone and 3 suspicious screenshots were found I made 2 years ago about the Iran/Israel war. I said I'm interested in geo-politics and watched the news. I was barred from the US for life - it was said that it could have been much worse. When I wanted to go to the main airport hall a number of canadian police officers arrested me and drove me handcuffed to a cell. I was asked if I wanted a lawyer and they arranged a phone call. The lawyer said I would spend to nights in a cell and then she would come to prepare my case and was strongly advised not to talk to people before that. I was released from my cell 7 hours later that evening after a thorough and friendly conversation with the canadian special police. I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job. That day there was a threat alert I heard later. A week later I heard from the person who gave me the relic (I was on retreat) that the border guard contacted them and said it was a false positive (what I suspected at the time, but I didn't dare argue against the machine results).
I commend your understanding. I would have been losing my mind with rage.
You were barred for life over a false positive? That's crazy.
They were barred for life for having screenshots the current administration considers anti-American.
I'm a little confused. Canadian police barred you from the US for life?
Also sounds like you did not take your lawyer's advice not to talk. Regardless, sorry you went through such a stressful ordeal over a false positive.
You can pre-clear US customs and immigration in a number of Canadian airports, including Halifax
And just to clarify another element of the story: there is a significant legal difference between pre-clearance in a Canadian airport and landing in the US and proceeding through customs on US soil. At a pre-clearance station, you are still on Canadian soil. I'm sure there are exceptions, but you generally can "withdraw your application to enter" and basically just turn around and walk away from the border. If you decide you don't want to unlock your phone for the CBP officer, you can walk away. At that point they've already seen your passport and you're going to be flagged and may never be approved for entry again, but you're not going to end up on a CBP facility. Once you're through, you'll need to clear Canadian customs to go back, but if something happens it will be Canadian police that arrest you.
I’m confused why they would contact the person that gave you the relic to tell them it was a false positive? It doesn’t seem like something they would do. Why not contact you?
[dupe] https://news.ycombinator.com/item?id=49754687
Given that the US's economy is utterly dependent on tourism, do they just not want to have money any more or something?
Because who in their right mind is ever going to travel there at the moment?
The US's economy is definitely not "utterly dependent on tourism".
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