ACLU says US border agents have 'near-unfettered' ability to seize iPhones, other devices

AppleInsider

The American Civil Liberties Union has shared data that shows U.S. border agencies are "asserting near-unfettered authority" to search and seize devices such as iPhones and iPads from anyone at points of entry without a warrant, violating two U.S. Constitutional amendments.

Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using searches and seizures "for purposes far afield from the enforcement of immigration and customs laws," the ACLU argued, citing court documents. This includes not just general law enforcement but creating "risk assessments," or acting on requests from other government agencies to target the devices of specific people.

Both organizations also claim the right to search a traveler's device for data about another person, which the ACLU says can be used against innocent U.S. citizens in order to pursue undocumented relatives, or the foreign contacts of journalists, scholars, and business partners. That data can be shared not just with other U.S. branches but foreign law enforcement.

"Warrantless and suspicionless searches of our electronic devices at the border violate the Fourth Amendment, which protects us against unreasonable searches and seizures - including at the border," the ACLU wrote.

"These searches also violate the First Amendment," it added. "People will self-censor and avoid expressing dissent if they know that returning to the United States means that border officers can read and retain what they say privately, or see what topics they searched online. Similarly, journalists will avoid reporting on issues that the U.S. government may have an interest in, or that may place them in contact with sensitive sources."

The ACLU is in the process of suing CBP and ICE on behalf of 11 people who had phones or laptops searched. The organizations should be obtaining warrants, it says, since while border agents can search for illegal or contraband items, mobile devices are different and contain far more personal data.

Apple has a stake in the case for multiple reasons, such as its general focus on privacy and encouraging customers to keep using its products and services. One Apple worker, Andreas Gal, recently filed a complaint through the ACLU, saying he was stopped at a checkpoint. There he was questioned about his work, including online privacy advocacy, and asked to turn over passwords for his phone and computer.

Gal asked if he could talk with Apple or a lawyer in order to address an Apple non-disclosure agreement, but was rejected and threatened with prosecution. He was only able to pass the border by surrendering his Global Entry card used to expedite screening.

Notsofast

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

SpamSandwich

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

spice-boy

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

If that were true don't you think the lack of at least a mobile phone would seem suspicious. 

spice-boy

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

I suggest you read the article again, the ACLU is NOT suggesting digital records are not covered under the 4th amendment but the opposite. 

indieshack

...and this discussion gets shut down by AI admins... about... NOW!

sflocal

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

I suppose if it’s becoming more of an issue, one can always wipe their iPhone the moment the plane lands right?

neilm

I haven't thought this through in detail, but if you sign out of iCloud on an iOS device the default behavior, subject to your override, is for your shared Contacts, Calendar, Keychain, etc. to be deleted locally. However they are still stored on your iCloud account and can be repopulated to the device simply by signing back in. Something similar could be done with any IMAP email account, or with a corporate Exchange email account.

So it would be relatively easy, with a little planning, to 'sanitize' an iPhone in a temporary and reversible way.

I've read that journalists and others concerned with information security when traveling to or from other countries will sometimes take a throwaway mobile phone with minimal sensitive data on it.

For myself, I don't really care. I can't think of anything on my iPhone or iPad, both of which I always have with me when traveling overseas, that anyone would care about.

lordjohnwhorfin

That is so completely bizarre to me. Port of entry is the one spot where anyone who knowingly carries some sort of incriminating information would have backed up their info onto some encrypted server and wiped their devices clean. It seems like these searches are being used more as a way to harass people and assert authority than as any sort of a useful tool.

rbelize

sflocal said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

I suppose if it’s becoming more of an issue, one can always wipe their iPhone the moment the plane lands right?

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

Do you really have such sensitive information on your phone that you would need to WIPE it so that the CBP doesn't look through it? It sounds like you're the type of person they are trying to apprehend.

kurai

spice-boy said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

If that were true don't you think the lack of at least a mobile phone would seem suspicious. 

Are we really going to have to start wargaming for the best outcomes when traveling outside the US even as citizens? We're really reaped what we've sown with this administration.

steven n.

spice-boy said:

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

I suggest you read the article again, the ACLU is NOT suggesting digital records are not covered under the 4th amendment but the opposite. 

I think that is what Notsofast said (correct me if I am wrong).  Basically:

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.

raisees the question of reasonable.
United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad). Stated:

That searches made at the border, pursuant to the longstanding 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, should, by now, require no extended demonstration.

and from 1789 (Act of July 31):

... the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.

What the ACLU is stating is digital is somehow different than other data and property. There is 200+ years of precedence it really isn't.

carnegie

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

There is indeed a border search exception to the warrant requirement of the Fourth Amendment. But the scope of the search allowed by that exception, as it applies to smartphones, is in dispute. There's conflicting case law on the matter. I think the Supreme Court's decision in Riley v California (2014), though it didn't relate to the border search exception, augers well for the ultimate success of the position that suspicionless forensic border searches of smartphones aren't allowed.

steven n.

carnegie said:

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

There is indeed a border search exception to the warrant requirement of the Fourth Amendment. But the scope of the search allowed by that exception, as it applies to smartphones, is in dispute. There's conflicting case law on the matter. I think the Supreme Court's decision in Riley v California (2014), though it didn't relate to the border search exception, augers well for the ultimate success of the position that suspicionless forensic border searches of smartphones aren't allowed.

Because Riley v California specifically did not relate to the border search exception means it will have almost 0 bearing in the ACLU's case for border searches. Riley was a typical traffic stop/arrest in San Diego. The ruling basically said searching property is not the same as searching a body in the course of an arrest (Chimel v. California, 1969). The border exception specifically mentions property being searchable warrantless.

SpamSandwich

sflocal said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

I suppose if it’s becoming more of an issue, one can always wipe their iPhone the moment the plane lands right?

Still may not prevent seizure of the device.

SpamSandwich

rbelize said:

sflocal said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

I suppose if it’s becoming more of an issue, one can always wipe their iPhone the moment the plane lands right?

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

Do you really have such sensitive information on your phone that you would need to WIPE it so that the CBP doesn't look through it? It sounds like you're the type of person they are trying to apprehend.

Not me. LOL. I take nothing, so there’s nothing to take or investigate. Why bother?

carnegie

steven n. said:

carnegie said:

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

There is indeed a border search exception to the warrant requirement of the Fourth Amendment. But the scope of the search allowed by that exception, as it applies to smartphones, is in dispute. There's conflicting case law on the matter. I think the Supreme Court's decision in Riley v California (2014), though it didn't relate to the border search exception, augers well for the ultimate success of the position that suspicionless forensic border searches of smartphones aren't allowed.

Because Riley v California specifically did not relate to the border search exception means it will have almost 0 bearing in the ACLU's case for border searches. Riley was a typical traffic stop/arrest in San Diego. The ruling basically said searching property is not the same as searching a body in the course of an arrest (Chimel v. California, 1969). The border exception specifically mentions property being searchable warrantless.

That's not the distinction - as between searching property and searching a body - that Riley makes. The search incident to arrest exception can also justify the search of some property - e.g., property found on the arrestee. See, e.g., U.S. v Robinson (1973).

Riley was, in part, about balancing the degree of intrusion on privacy of certain kinds of searches against the government's need to conduct such searches in furtherance of its legitimate interests. The Supreme Court felt that the amount of personal information which might be found in comprehensive searches of smartphones distinguished such searches from those of other kinds of property. In essence the Court found that searching digital devices is different in important ways from searching other kinds of property. That being the case, the warrant exception which might apply to searches of other kinds of property (e.g. a cigarette pack or a vehicle) didn't apply in the same way to searches of smartphones.

That said, I didn't suggest that Riley controls with regard to the present case. But, as I suggested, the Supreme Court might reach a similar conclusion with regard to smartphones and the border search exception as it reached with regard to smartphones and the search incident to arrest exception. Lower courts might also, based in part on Riley, reach a similar conclusion with regard to the border search exception. As I indicated, there is conflicting case law on this point.

beowulfschmidt

spice-boy said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

If that were true don't you think the lack of at least a mobile phone would seem suspicious. 

SCOTUS has already ruled in other instances that taking a perfectly legal action to avoid the scrutiny of law enforcement is not the sort of behavior that can be considered suspicious in the legal sense.  For instance, if you were to turn off the road or legally turn around to avoid a police roadblock, that does not meet the "reasonable suspicion" requirement which allows those officers to go stop you to find out why.  Similarly, taking legal actions to reduce one's tax liability is not tax avoidance or fraud.

So declining to carry one's phone, or electing to carry a non-smart phone, across a border in order to eliminate the possibility that it will be stolen by border authorities isn't illegal or suspicious either.

suddenly newton

SpamSandwich said:

sflocal said:

SpamSandwich said:

I never take phones, computers or iPads with me when traveling outside the US. Why invite the scrutiny and why invite the possibility of seizure of these devices, if not by US law enforcement, by foreign immigration officers?

I suppose if it’s becoming more of an issue, one can always wipe their iPhone the moment the plane lands right?

Still may not prevent seizure of the device.

It’s probably enough to have your content backed up to iCloud. If your phone is seized, just sign in and remote wipe it.

DAalseth

I wonder if nationality makes a difference. I can understand if a citizen of a foreign country wants to enter the US then Border Services would have the right to look at everything. But if one is a US citizen then do we have more rights? There was that case of the Apple employee that was stopped at the border. They wanted to examine her device but she was under an NDA. She wanted to check with company attorneys before handing it over. The Border Guards blustered and threatened, but in the end she entered with her device. She is a US citizen as I understand. I wonder if that was the difference.

StrangeDays

Notsofast said:

The headline misleads at the ACLU Is correct that current law allows Border agents an unfettered ability to search you and your belongings when you are entering America (as is the case in most countries in the world). Instead, the headline should read that the ACLU is proposing the US Supreme Court change the well established and clear and consistent rulings that there is a "border search exception" to the general warrant requirement and you have no reasonable expectation of privacy at the border.  Border searches have NEVER required a warrant or probable cause  in our nation's history for obvious reasons. 

The ACLU and others are attempting to make a distinction that digital records should be treated differently.  This is an unlikely outcome from the Supreme Court as it would effectively vitiate much of the efficacy of protecting the country at our borders.  

Protecting us from what? Searching for weapons or drugs is one thing, but what personal device data poses a threat to me and the country? 

Please. Classic fear mongering in the name of grabbing power.