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

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Comments

  • Reply 21 of 40
    StrangeDaysStrangeDays Posts: 8,764member

    rbelize said:
    sflocal 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.
    Bullshit. We are entitled to privacy. It is a born right. Not wanting overzealous government workers to clone all of our data for fishing expeditions doesn’t make one a criminal or a suspect. 
    SpamSandwichJustSomeGuy1cgWerksbeowulfschmidtleftoverbacon
  • Reply 22 of 40
    DAalsethDAalseth Posts: 763member

    rbelize said:
    sflocal 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.
    Bullshit. We are entitled to privacy. It is a born right. Not wanting overzealous government workers to clone all of our data for fishing expeditions doesn’t make one a criminal or a suspect. 
    I agree. I think that every part of the Bill of Rights is founded on a right to privacy. Unfortunately there is a growing movement that says no. I first heard about it during the hearings to put Robert Bork on the Supreme Court, which fortunately never happened. When asked about Roe v. Wade, which is grounded in a right to privacy he said no. There was no right to privacy assumed or implied anywhere in the constitution. It simply did not exist. He was stropped. However a lot of his assistants, clerks, legal assistants, jr. lawyers in his office, and such have gone on and become highly placed in the government. 
  • Reply 23 of 40
    steven n. said:
    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.
    Thank you for these citations.  When I went into this discussion, I was on the side of the ACLU, as in I believe that iPhones count as "papers and effects", but that citation from 1789 is pretty cut and dry, as it cites the language from the 4th Amendment (passed later) in its content.
  • Reply 24 of 40
    arlorarlor Posts: 513member
    sflocal 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.
    Might make a seizure more likely, actually. A freshly wiped phone? Suspicious!
    SpamSandwich
  • Reply 25 of 40
    majorslmajorsl Posts: 119unconfirmed, member
    rbelize said:
    sflocal 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.
    To me, at least, that isn't the point. I may only have Grandmas' Secret Chocolate Chip Cookie recipe on my phone, but that recipe is mine. It is none of CBP's business.
    SpamSandwichcgWerksleftoverbacon
  • Reply 26 of 40
    carnegiecarnegie Posts: 736member
    DAalseth said:
    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.
    It could make a difference in how situations are handled. The government can't, without sufficient cause, prohibit a U.S. citizen from entering the country. And it likely can't require someone to enter a passcode to decrypt a smartphone. So what can it do in order to try to get a U.S. citizen, entering the country, to facilitate the search of their smartphone? How long can it detain them? Can it threaten them in some way to get them to decrypt it?

    With an alien the government may be able to prohibit them from entering the country. So the government might be able to say... Decrypt your smartphone so we can search it or you will be denied entry.
  • Reply 27 of 40
    apple ][apple ][ Posts: 8,738member
    kurai said:
    We're really reaped what we've sown with this administration.
    Things are going just fine, way better than the previous garbage.
    edited May 1 SpamSandwichsteven n.
  • Reply 28 of 40
    carnegiecarnegie Posts: 736member
    steven n. said:
    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.
    Thank you for these citations.  When I went into this discussion, I was on the side of the ACLU, as in I believe that iPhones count as "papers and effects", but that citation from 1789 is pretty cut and dry, as it cites the language from the 4th Amendment (passed later) in its content.
    The question (or one question) is the scope of the border search exception.

    Whether we agree or not, the Supreme Court has already said that a search of the contents of a smartphone is different in important ways from a search of other physical items. See Riley v California (2014). The reasonableness consideration is different because of the wealth of information which can be found on modern smartphones and because of the degree of intrusion into people's privacy. Searching the content of a smartphone is not the same as searching, e.g., a wallet or a briefcase.

    The Court has already declined to extend one categorical rule (which allows for warrantless suspicionless searches of some property) to cover searches of the contents of smartphones. It's quite possible that it will also decline to extend the border search exception to cover such searches. In the meantime, some lower courts have found that the border search exception doesn't extend to forensic searches of smartphones. See, e.g., U.S. v Kolsuz (2018) in which the Fourth Circuit concluded, relying heavily on Riley, that the border search exception doesn't allow for warrantless suspicionless forensic searches of smartphones. Kolsuz left open the question of whether that exception allows for manual searches of smartphones.
  • Reply 29 of 40
    davgregdavgreg Posts: 471member
    This issue has been an ongoing one for quite some time and goes well beyond the physical US border.

    The agencies in question claim authority to do this within 100 miles of the US border- any border- not just official crossings/points of entry. A substantial portion of the US population falls within that claimed area- the ACLU says almost 2/3rds. Some US states would fall completely within this zone.

    https://www.aclu.org/other/constitution-100-mile-border-zone


    leftoverbacon
  • Reply 30 of 40
    Breaking news- border security practices border security, iPhones not exempt.
  • Reply 31 of 40
    SpamSandwichSpamSandwich Posts: 31,490member

    rbelize said:
    sflocal 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.
    Bullshit. We are entitled to privacy. It is a born right. Not wanting overzealous government workers to clone all of our data for fishing expeditions doesn’t make one a criminal or a suspect. 
    We are in agreement on that.
    cgWerksleftoverbacon
  • Reply 32 of 40
    mac_dogmac_dog Posts: 705member
    ...and this discussion gets shut down by AI admins... about... NOW!
    Wrong again. 
    davgreg
  • Reply 33 of 40
    steven n.steven n. Posts: 1,127member
    carnegie said:
    steven n. said:
    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.
    Thank you for these citations.  When I went into this discussion, I was on the side of the ACLU, as in I believe that iPhones count as "papers and effects", but that citation from 1789 is pretty cut and dry, as it cites the language from the 4th Amendment (passed later) in its content.
    The question (or one question) is the scope of the border search exception.

    Whether we agree or not, the Supreme Court has already said that a search of the contents of a smartphone is different in important ways from a search of other physical items. See Riley v California (2014). The reasonableness consideration is different because of the wealth of information which can be found on modern smartphones and because of the degree of intrusion into people's privacy. Searching the content of a smartphone is not the same as searching, e.g., a wallet or a briefcase.

    The Court has already declined to extend one categorical rule (which allows for warrantless suspicionless searches of some property) to cover searches of the contents of smartphones. It's quite possible that it will also decline to extend the border search exception to cover such searches. In the meantime, some lower courts have found that the border search exception doesn't extend to forensic searches of smartphones. See, e.g., U.S. v Kolsuz (2018) in which the Fourth Circuit concluded, relying heavily on Riley, that the border search exception doesn't allow for warrantless suspicionless forensic searches of smartphones. Kolsuz left open the question of whether that exception allows for manual searches of smartphones.
    I agree the question is the scope but I don't think you understand the previous 200 years and what was allowed to be searched. Everything. Unopened mail? - yep -. Locked briefcases? - yep -. Sadly, I see little difference between laptops and cellphones and would not think the SCOTUS would either.

    I'll say it again, Riley v California really has little to no bearing on this case. Traffic Stop VS border entry. These are two VERY different things.
  • Reply 34 of 40
    dysamoriadysamoria Posts: 2,329member
    rbelize 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.
    Seriously? Blame the victim much? The TSA is a ridiculous abuse of power and security theatre, and so is border security. It’s gotten way out of hand. I am just a poverty-level nobody, breaking no laws, and I ALSO wouldn’t want to risk my devices being seized over some overzealous authoritarian singling me out for some arbitrary reason while crossing a border (I’ve had things destroyed by airport security before, and I’m still not sure how that happened). I don’t even want to interact with the TSA, let alone some extended interaction as a result of some “random” selection process using me as an example of some kind.
    davgregleftoverbacon
  • Reply 35 of 40
    dysamoriadysamoria Posts: 2,329member

    kurai said:
    spice-boy 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.
    This shit started WAY before this administration. Bush II’s administration established the TSA. Obama’s maintained it, and other Bush II overreaches and rights violations (and even expanded some). Trump’s administration... well... That’s just all over the effing news at this point.
    cgWerksleftoverbacon
  • Reply 36 of 40
    carnegiecarnegie Posts: 736member
    steven n. said:
    carnegie said:
    steven n. said:
    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.
    Thank you for these citations.  When I went into this discussion, I was on the side of the ACLU, as in I believe that iPhones count as "papers and effects", but that citation from 1789 is pretty cut and dry, as it cites the language from the 4th Amendment (passed later) in its content.
    The question (or one question) is the scope of the border search exception.

    Whether we agree or not, the Supreme Court has already said that a search of the contents of a smartphone is different in important ways from a search of other physical items. See Riley v California (2014). The reasonableness consideration is different because of the wealth of information which can be found on modern smartphones and because of the degree of intrusion into people's privacy. Searching the content of a smartphone is not the same as searching, e.g., a wallet or a briefcase.

    The Court has already declined to extend one categorical rule (which allows for warrantless suspicionless searches of some property) to cover searches of the contents of smartphones. It's quite possible that it will also decline to extend the border search exception to cover such searches. In the meantime, some lower courts have found that the border search exception doesn't extend to forensic searches of smartphones. See, e.g., U.S. v Kolsuz (2018) in which the Fourth Circuit concluded, relying heavily on Riley, that the border search exception doesn't allow for warrantless suspicionless forensic searches of smartphones. Kolsuz left open the question of whether that exception allows for manual searches of smartphones.
    I agree the question is the scope but I don't think you understand the previous 200 years and what was allowed to be searched. Everything. Unopened mail? - yep -. Locked briefcases? - yep -. Sadly, I see little difference between laptops and cellphones and would not think the SCOTUS would either.

    I'll say it again, Riley v California really has little to no bearing on this case. Traffic Stop VS border entry. These are two VERY different things.
    But the Supreme Court has seen a difference between the search of laptops and cellphones and the search of other physical items. That is what Riley was about, though the context of the consideration in that case was the search incident to arrest exception.

    I've been clear on what Riley was and wasn't about. And I'm quite familiar with the various exceptions to the Fourth Amendment's warrant requirement, to include the search incident to arrest and border search exceptions. Riley didn't say, as you previously suggested, that searching property is not the same as searching a person in the course of an arrest. The search incident to arrest exception, like the border search exception, allows for the warrantless search of property.

    One of the things that the Supreme Court did say in Riley is that searching a smartphone (or other digital devices) is different from searching other physical items. It implicates privacy interests differently. As the Court said, reasonableness is the ultimate touchstone of the Fourth Amendment. And, in the context of warrantless searches, reasonableness depends on the balance between individuals' privacy interests and governments' legitimate interests. The consideration of that balance is affected by the difference between searches of the content of smartphones and searches of other physical items. That is what Riley tells us.

    That said, it isn't just me who thinks that Riley bears, to some degree, on the question of whether the border search exception applies to searches of smartphones. A number of federal courts have already said that it does. The Fourth Circuit in U.S. v Kolsuz, e.g., relied heavily on Riley in finding that the border search exception doesn't allow warrantless suspicionless forensic searches of smartphones.

    In the very case which is the subject of this thread (i.e. the case in which the ACLU and EFF made the court filing which the OP is based on - Alasaad v McAleenan), the judge has already indicated that Riley affects the legal considerations. In her opinion denying the government's motion to dismiss, Judge Casper repeatedly cited Riley.

    For example:
    As an initial matter, the Court is not persuaded that Riley’s reasoning is irrelevant here simply because Riley’s holding was limited to the search incident to arrest exception, see Riley, 134 S. Ct. at 2495. Judicially recognized exceptions to the warrant requirement do not exist in isolation; rather, they are all part of Fourth Amendment jurisprudence, justified because, ordinarily, the circumstances surrounding the search and the nature of the search have been deemed “reasonable.” See id. at 2483; Ramsey, 431 U.S. at 617. In fact, the Supreme Court has referenced search incident to arrest doctrine within its border search jurisprudence in the past, characterizing the two exceptions as “similar.” Ramsey, 431 U.S. at 621 (explaining that the border search is “a longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained, and in this respect is like the similar ‘search incident to lawful arrest’ exception”). The reasoning in Riley may, therefore, carry some persuasive weight in the border search context. See, e.g., United States v. Kolsuz, 185 F. Supp. 3d 843, 856 (E.D. Va. 2016) (considering scope of privacy interest at border in light of Riley); United States v. Kim, 103 F. Supp. 3d 32, 54-58 (D.D.C. 2015) (same); cf. United States v. Camou, 773 F.3d 932, 942-43 (9th Cir. 2014) (extending Riley to the vehicle exception context); United States v. Lara, 815 F.3d 605, 610-12 (9th Cir. 2016) (applying Riley to probation search context); United States v. Henry, 827 F.3d 16, 28 (1st Cir. 2016) (rejecting defendant’s Riley argument in the “plain view” context not because Riley was categorically irrelevant but because the officers had obtained a warrant prior to the smart phone search).

    And:

    While it is correct that neither the Supreme Court nor the First Circuit have yet held that a warrant is required for a particular type of search conducted at the border, the Court considers Plaintiffs’ claim against the current legal backdrop framed by Riley and Wurie and thus turns to the merits to determine whether Plaintiffs have plausibly alleged a Fourth Amendment violation for warrantless border device searches.

    The border search exception is widely considered as old as the United States itself. See Ramsey, 431 U.S. at 616-17. “The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29 . . . . grant[ing] customs officials ‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.’” Id. at 616. The Supreme Court reiterated in 1886 and 1925 that border searches are “reasonable” and, therefore, not prohibited by the Fourth Amendment. See Boyd v. United States, 116 U.S. 616, 623 (1886); Carroll v. United States, 267 U.S. 132, 147 (1925).

    As with all Fourth Amendment exceptions, the border search exception is “subject to substantive limitations imposed by the Constitution.” Ramsey, 431 U.S. at 620. The Court determines “the permissibility of a particular law enforcement practice . . . by ‘balancing its intrusion on the individual’s Fourth Amendment interest against its promotion of legitimate governmental interests.’” Montoya de Hernandez, 473 U.S. at 537 (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983)). “[T]he Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.” Id. at 538. Individuals have a reduced expectation of privacy at the international border, while the government’s “interest in preventing the entry of unwanted persons and effects is at its zenith” there. Flores-Montano, 541 U.S. at 154, 152.

    The border search slate, however, is not unlike the one on which the Supreme Court wrote in Riley. Like the border search exception’s historical foundation, the search incident to arrest exception, as the Court detailed in Riley, was “always recognized under English and American law,” Riley, 134 S. Ct. at 2482 (quoting Weeks, 232 U.S. at 392). Moreover, with searches incident to arrest, the balance also tilts favorably toward the government. See id. at 2488 (explaining that “[t]he search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police custody”). The Court nevertheless explained that an arrestee’s “diminished privacy interests do[] not mean that the Fourth Amendment falls out of the picture entirely.” Id. Rather, the unique attributes of cell phones so increased the privacy interests of individuals that the balancing of interests that typically support the search incident to arrest exception no longer applied. See id. at 2484-85, 2488; Wurie, 728 F.3d at 9.

    I'm not making a prediction about how this case will ultimately be decided. But it's pretty clear that the reasoning of Riley is a significant consideration when it comes to the Fourth Amendment issues involved in the case. That is, at least according to the judge who is hearing the case. As she suggests, Riley has changed the landscape when it comes to searches of smartphones - and that's true with specific regard to the border search exception.





    leftoverbacon
  • Reply 37 of 40
    cgWerkscgWerks Posts: 2,314member
    neilm said:
    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.
    It's kind of the principal of it, but yeah... what do they actually do? Look at my chat history or calendar? Anything I don't want them to see, they aren't going to be able to see anyway unless they copy my phone and have a bunch of super-computers at their disposal for a few decades.

    kurai said:
    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.
    Unfortunately, this is hardly new with this administration. Have you not been following what is going on? If anything, there was some hope Trump might mess up the neocon plans, but it sure seems they are back at it. :(

    SpamSandwich said:
    Not me. LOL. I take nothing, so there’s nothing to take or investigate. Why bother?
    When I travel, I still typically have to get stuff done and have responsibilities... let alone people who regularly travel for work.

    But, I guess I don't get the point. Wouldn't anyone with something to hide either use 'burner devices' or encrypt the info such that the CBP wouldn't have access anyway?
    Do terrorists simply have their plot typed out in Notes and their attack date in Calendar?

    My fear, I guess, is that they might be looking for other things... opinions held, political affiliations, etc. And, you don't exactly have to be a terrorist these days to run afoul of that kind of stuff. Most thinking people probably do in one way or another.

    StrangeDays said:
    Bullshit. We are entitled to privacy. It is a born right. Not wanting overzealous government workers to clone all of our data for fishing expeditions doesn’t make one a criminal or a suspect. 
    Yep, that's really the key here. I don't want the gov't building a database of info on me from every angle, such that if they want to get me on something they invent someday, they'll have everything they need. Of course, apparently it is already too late. But, at least we don't need to add more to the pile they ALREADY have.

    DAalseth said:
    When asked about Roe v. Wade, which is grounded in a right to privacy he said no.
    That's kind of a bad example, as right to privacy doesn't (or shouldn't) trump the right to life. Or, I can't kidnap someone and torture them in my basement and invoke 'right to privacy.' Right to privacy is a fundamental right, but it shouldn't be able to be invoked to protect one from known criminal activity. 'Fishing expedition' is a different thing, though.
  • Reply 38 of 40
    davgregdavgreg Posts: 471member
    A great argument for a burner phone and a Chromebook.


    cgWerks
  • Reply 39 of 40
    NotsofastNotsofast Posts: 440member
    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. 
    No, you need to re-read my post.  Of course the ACLU is arguing that digital records are covered under the 4th Amendment.  The point is that they're arguing that digital records should be treated differently and not subject to the "border exception" to the 4th Amendment warrant that currently applies to all searches at the border.
  • Reply 40 of 40
    carnegiecarnegie Posts: 736member
    Notsofast said:
    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. 
    No, you need to re-read my post.  Of course the ACLU is arguing that digital records are covered under the 4th Amendment.  The point is that they're arguing that digital records should be treated differently and not subject to the "border exception" to the 4th Amendment warrant that currently applies to all searches at the border.
    And how do you assess the likelihood of success of that argument, in light of Riley?
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