It seems that customs is a legal twilight zone - I’ve read several reports of costoms agents performing what would clearly be illegal searches in any other circumstance and people seem to have very little recourse.
People could just as easily be harassed or threatened by immigration officers in other countries if they showed up as a “flagged” person of interest. Sounds like the reasons why this employee was targeted are not yet fully fleshed out.
So, if I understood well all various articles I read - if you are a criminal and get arrested, no one can force you to unlock your device. If you are a tourist and want to visit USA, you have to unlock your device... So criminals have more rights that legal tourists/visitors... Congratulations...
That has always been the case IMHO. I was first told that when entering the USA at JFK on a flight from Rio in the mid 1980's. You basically have no rights at all (not even for a lawyer) if you are not a US Citizen. I'd been working in Rio and in the middle of the Amazon for several months and was travelling back to the UK via the US in order to attend a conference that my US based company was putting on.
After 6 hours I was let into the USA. I'd been to the US many times and never had a problem and many times since again without issue. I never received an explanation as to why I was 'selected'. I lost count of the number of times I was told that as an illegal alien I had no rights and no protection under the US Constitution.
That put me off visiting for a number of years even though I was offered a secondment to the US from my Boston based employer.
Not sure that NDAs wash when law enforcement is involved.
At the same time, you're immediately put in a tough spot if you're unsure of what to do which is most likely why he wanted to speak with some at Apple and/or a lawyer. Do I give everything up and risk losing my job, or what?
Also, just because its law enforcement, doesn't give them the right to just search someone's property for very little to no reason. They're not above the law...they're there to enforce the law using legal means (proper policies and procedures).
CBP does have the right to search someone's property if they are entering the country. They don't need a reason. Fourth Amendment protections don't apply at ports of entry. It's like that with pretty much any border services agency in any country. They have the right to search someone's property when you enter a country.
It’s not that simple. Requesting access to people’s passwords and data goes beyond what was intended.
No one has any problem with them searching for drugs or weapons at the border.
How would you like going to China and having all your phone and laptop contents copied and reviewed? Do you have any “personal” photos or videos on there? If it’s a business visit, I hope you don’t have anything confidential...
What happens if you work for a company that has defense contracts? It doesn’t matter if it’s a family vacation, sometimes you need access to your work if something comes up.
People have all kinds of things that should be private unless a crime has been suspected of being committed, and that data should be going (requested) through the courts.
Funny thing that. I have been to China multiple times, and been asked for passwords and social media info exactly ZERO times.
CBP does have the right to search someone's property if they are entering the country. They don't need a reason. Fourth Amendment protections don't apply at ports of entry. It's like that with pretty much any border services agency in any country. They have the right to search someone's property when you enter a country.
And when it happens to you, you'll be screaming four shades of holy hell. So much for the country of "don't tread on me."
And sooo many bureaucratic little Eichmanns in the CBP.
I've had my stuff searched before returning to the USA and while entering other countries. I'm not taking sides, just stating CBP does have the authority to search anyone for no reason.
...but, if you are a US citizen, you do NOT have to give up your passwords to your phone/computer/online accounts... CBP may ask to hold them for awhile to try to break into the device.
However, if you are not a US citizen, then they can/may? seize the device and deny you entry.
Not sure that NDAs wash when law enforcement is involved.
At the same time, you're immediately put in a tough spot if you're unsure of what to do which is most likely why he wanted to speak with some at Apple and/or a lawyer. Do I give everything up and risk losing my job, or what?
Also, just because its law enforcement, doesn't give them the right to just search someone's property for very little to no reason. They're not above the law...they're there to enforce the law using legal means (proper policies and procedures).
CBP does have the right to search someone's property if they are entering the country. They don't need a reason. Fourth Amendment protections don't apply at ports of entry. It's like that with pretty much any border services agency in any country. They have the right to search someone's property when you enter a country.
Fourth Amendment protections do apply at ports of entry. It's just that the rules are somewhat different. Suspicionless routine border searches are allowed. But there's conflicting case law when it comes to forensic (border) searches of electronic devices such as smartphones and computers, with some circuits having held that such searches require some degree of individualized suspicion (which could mean reasonable suspicion or probable cause sufficient to get a warrant). I think the Supreme Court's decision in Riley v California (2014) lends considerable support to the view that individualized suspicion is required for such searches. While that case didn't consider the border search exception in particular, it did consider a different Fourth Amendment exception - that for searches incident to arrest - and how it applied to comprehensive searches of electronic devices.
At any rate, this complaint isn't just about the CBP's right to search the devices in question or Mr. Gal's Fourth Amendment rights against unreasonable searches. The right to search such devices isn't the same as a right to force someone to provide their passcodes or to unlock (i.e. decrypt) such devices or otherwise assist the CBP in its searches of them. Even if the CBP could, based on the border search exception, conduct a suspicionless search of Mr. Gal's electronic devices, it couldn't require him to provide his passcodes or unlock his devices. It likely couldn't do that even with probable cause; it surely couldn't do it without reasonable suspicion.
There's also the issue of continuing to detain and interrogate Mr. Gal, and threatening him with criminal prosecution, in response to his refusal to provide his passcodes without first being allowed to consult with an attorney. A right to conduct a border search of electronic devices, even if it existed under the given circumstances, isn't the same as a right to detain someone. And the CBP officers surely knew - or should have known - that Mr. Gal couldn't be (successfully) prosecuted for refusing to provide his passcodes, let alone for refusing to provide them until he was allowed to speak to an attorney.
The ACLU also raises a First Amendment issue. Even if the CBP has a right to conduct suspicionless searches under certain circumstances, it doesn't have the right to conduct a given suspicionless search on the basis of - or in retaliation for - someone's protected speech. Based on the questions Mr. Gal was asked by CBP officers, he seems to suspect that he might have been targeted because of his publicly-expressed views regarding privacy rights.
The First Amendment issue aside, border searches of electronic devices gets into some interesting legal questions which are far from sorted out. CBP officers have a right to conduct searches, but what are they allowed to do in order to coerce people into assisting those searches? They can't prevent U.S. citizens from reentering the country without sufficient justification. So, e.g., how long can CBP officers detain someone if they refuse to decrypt their electronic devices so that CBP officers can search them?
At any rate, what the CBP officers are alleged to have done in this situation is appalling. They should, if the allegations are true, go to jail. But, of course, they won't.
So, if I understood well all various articles I read - if you are a criminal and get arrested, no one can force you to unlock your device. If you are a tourist and want to visit USA, you have to unlock your device... So criminals have more rights that legal tourists/visitors... Congratulations...
Even though the government can conduct suspicionless searches at borders (or their functional equivalents, e.g. airports) which they couldn't conduct elsewhere, it can't compel someone to provide a passcode or use a passcode to unlock electronic devices in connection with those searches. In this case, and likely in others, CBP officers allegedly tried to make Mr. Gal believe that they could - i.e., they threatened him with criminal prosecution if he didn't do what they asked.
But, no, generally speaking you can't be made to unlock your devices even for (suspicionless) border searches.
Not to detour from the current subject but it is obvious
that most of you have never come into Heathrow from another country. it amazes
me how arrogant most people are to think that it only happens in America. Good and bad things.
It seems that customs is a legal twilight zone - I’ve read several reports of costoms agents performing what would clearly be illegal searches in any other circumstance and people seem to have very little recourse.
Much in the U.S. is becoming a legal twilight zone as "the law" is twisted, distorted and misused in order to advance or protect political agendas. Children were taken from their parents and locked in cages because "it's the law".
So, if I understood well all various articles I read - if you are a criminal and get arrested, no one can force you to unlock your device. If you are a tourist and want to visit USA, you have to unlock your device... So criminals have more rights that legal tourists/visitors... Congratulations...
That has always been the case IMHO. I was first told that when entering the USA at JFK on a flight from Rio in the mid 1980's. You basically have no rights at all (not even for a lawyer) if you are not a US Citizen. I'd been working in Rio and in the middle of the Amazon for several months and was travelling back to the UK via the US in order to attend a conference that my US based company was putting on.
After 6 hours I was let into the USA. I'd been to the US many times and never had a problem and many times since again without issue. I never received an explanation as to why I was 'selected'. I lost count of the number of times I was told that as an illegal alien I had no rights and no protection under the US Constitution.
That put me off visiting for a number of years even though I was offered a secondment to the US from my Boston based employer.
I don't understand how you were an "illegal" alien. What did yo do wrong?
Not sure that NDAs wash when law enforcement is involved.
At the same time, you're immediately put in a tough spot if you're unsure of what to do which is most likely why he wanted to speak with some at Apple and/or a lawyer. Do I give everything up and risk losing my job, or what?
Also, just because its law enforcement, doesn't give them the right to just search someone's property for very little to no reason. They're not above the law...they're there to enforce the law using legal means (proper policies and procedures).
CBP does have the right to search someone's property if they are entering the country. They don't need a reason. Fourth Amendment protections don't apply at ports of entry. It's like that with pretty much any border services agency in any country. They have the right to search someone's property when you enter a country.
No, they do not have the right to search. They have the authority to search. I'm sure someone, believing themselves to be clever, will claim the difference is "just semantics", and while they are right, they aren't right in the way they think they are. "Semantics" is the meaning of words and sentences, and the meanings of "rights" and "authority" are different. In addition, there's a huge philosophical difference between those two concepts. Rights belong to people, and people have those rights because they are human beings, not because they are granted by the government. The government has authority because it was granted by the people with rights, and that authority is limited by the grant. Authority can be taken away, and while our rights can be violated (and frequently are, by the very people who are supposed to be protected them), they cannot be taken away.
"It's just semantics" is a phrase often used by two groups of people, those who don't recognize the meanings of words and use it to cover their lack of knowledge, and those who know the meanings of the words they are using and don't want the rest of use to recognize it.
I've had my stuff searched before returning to the USA and while entering other countries. I'm not taking sides, just stating CBP does have the authority to search anyone for no reason.
Well then that needs to be fixed. Because the Constitution says they do have to have a reason, at least in the case of an American citizen. What's the difference between "the authority to search anyone for no reason" and a police state?
The ACLU is usually on the wrong side of things, so I don't see this as something that concerns me.
If they feel they have a case, then go sue.
Only for those on the wrong side of the law and Constitution.
Anyone can sue for anything. If you look at recent history, both left and right wing groups have used the legal system to advance their cause (or try to stop the other side.)
I wouldn’t say that the ACLU is on the wrong side of things so much as they are more extreme and often seem to lack balance/perspective on issues. I think most people feel citizens are entities to civil liberties like freedom of speech, they just differ on how far those rights go.
So, if I understood well all various articles I read - if you are a criminal and get arrested, no one can force you to unlock your device. If you are a tourist and want to visit USA, you have to unlock your device... So criminals have more rights that legal tourists/visitors... Congratulations...
Yes, see the wiki link above. Border security has more teeth than internal security, but if you think about it that actually makes sense. Once you’ve let someone/something into the country, the cat’s out of the bag. It’s better to catch them at the border than to try and track them down after they’ve entered.
So the main takeaway here is don’t visit the United States unless compelled to do so.
And if you’re a citizen, move out of, or don’t settle down in, a civil rights-free zone around the borders (not relevant to this event in specific, but relevant in that there are insane numbers of regions of the USA where your rights don’t exist because of overreaching “national security”, and by insane I mean any at all).
Comments
Here’s his Wikipedia profile: https://en.m.wikipedia.org/wiki/Andreas_Gal
I’m seeing several things which could cause him to be the subject of scrutiny by overzealous government employees.
At any rate, this complaint isn't just about the CBP's right to search the devices in question or Mr. Gal's Fourth Amendment rights against unreasonable searches. The right to search such devices isn't the same as a right to force someone to provide their passcodes or to unlock (i.e. decrypt) such devices or otherwise assist the CBP in its searches of them. Even if the CBP could, based on the border search exception, conduct a suspicionless search of Mr. Gal's electronic devices, it couldn't require him to provide his passcodes or unlock his devices. It likely couldn't do that even with probable cause; it surely couldn't do it without reasonable suspicion.
There's also the issue of continuing to detain and interrogate Mr. Gal, and threatening him with criminal prosecution, in response to his refusal to provide his passcodes without first being allowed to consult with an attorney. A right to conduct a border search of electronic devices, even if it existed under the given circumstances, isn't the same as a right to detain someone. And the CBP officers surely knew - or should have known - that Mr. Gal couldn't be (successfully) prosecuted for refusing to provide his passcodes, let alone for refusing to provide them until he was allowed to speak to an attorney.
The ACLU also raises a First Amendment issue. Even if the CBP has a right to conduct suspicionless searches under certain circumstances, it doesn't have the right to conduct a given suspicionless search on the basis of - or in retaliation for - someone's protected speech. Based on the questions Mr. Gal was asked by CBP officers, he seems to suspect that he might have been targeted because of his publicly-expressed views regarding privacy rights.
The First Amendment issue aside, border searches of electronic devices gets into some interesting legal questions which are far from sorted out. CBP officers have a right to conduct searches, but what are they allowed to do in order to coerce people into assisting those searches? They can't prevent U.S. citizens from reentering the country without sufficient justification. So, e.g., how long can CBP officers detain someone if they refuse to decrypt their electronic devices so that CBP officers can search them?
At any rate, what the CBP officers are alleged to have done in this situation is appalling. They should, if the allegations are true, go to jail. But, of course, they won't.
Even though the government can conduct suspicionless searches at borders (or their functional equivalents, e.g. airports) which they couldn't conduct elsewhere, it can't compel someone to provide a passcode or use a passcode to unlock electronic devices in connection with those searches. In this case, and likely in others, CBP officers allegedly tried to make Mr. Gal believe that they could - i.e., they threatened him with criminal prosecution if he didn't do what they asked.
But, no, generally speaking you can't be made to unlock your devices even for (suspicionless) border searches.
Not to detour from the current subject but it is obvious that most of you have never come into Heathrow from another country. it amazes me how arrogant most people are to think that it only happens in America. Good and bad things.
"It's just semantics" is a phrase often used by two groups of people, those who don't recognize the meanings of words and use it to cover their lack of knowledge, and those who know the meanings of the words they are using and don't want the rest of use to recognize it.
I wouldn’t say that the ACLU is on the wrong side of things so much as they are more extreme and often seem to lack balance/perspective on issues. I think most people feel citizens are entities to civil liberties like freedom of speech, they just differ on how far those rights go.