carnegie

About

Username
carnegie
Joined
Visits
213
Last Active
Roles
member
Points
3,613
Badges
1
Posts
1,085

Reactions

830Like0Dislike537Informative

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

    carnegiecarnegie
    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

  • Apple once more surpasses $1 trillion market cap, aided by service hopes & successes

    carnegiecarnegie


    Apple on Wednesday once again achieved a $1 trillion market valuation, a milestone supported by investor confidence in new services, better than expected iPhone sales, and hopes for future hardware.

    ...

    The company's market cap hit $1 trillion during the day's NASDAQ trading, thanks to share prices peaking at $213 at 1:00 A.M. Eastern Time. Apple became the first U.S. company to reach the $1 trillion mark in August 2018, riding high on a strong quarterly earnings report, similar to Tuesday's results.

    ...
    A share price of $213 doesn't get Apple back to a market cap of $1 trillion. As of March 30th Apple had about 4.607 billion shares outstanding. That share count would need a share price of about $217 for the market cap to be $1 trillion.

    Later today we'll get a more recent outstanding share count which is likely to be lower and require and even higher share price for a $1 trillion valuation.
    1STnTENDERBITS

  • Class action suit alleges 'misleading' Apple financial statements amount to securities fra...

    carnegiecarnegie

    AppleInsider said:...

    In a class action lodged with the U.S. District Court for the Northern District of California, the City of Roseville Employees' Retirement System, filing on behalf of all Apple stockholders, seeks redress for violation of federal securities laws.

    ...
    To be clear, this action doesn't purport to be brought on behalf of all Apple stockholders. The asserted class includes all buyers of AAPL between November 2, 2018 and January 2, 2019 inclusive.
    gatorguy

  • What to expect from the Apple versus Qualcomm 'no license, no chips' trial

    carnegiecarnegie
    CNBC is reporting that Apple and Qualcomm have settled their royalty dispute.
    gatorguy

  • What to expect from the Apple versus Qualcomm 'no license, no chips' trial

    carnegiecarnegie
    AppleInsider said:...

    To put pressure on Qualcomm, Apple has been directing its manufacturers to withhold royalty payments, potentially in excess of $7 billion.

    ...
    Have you concluded that Apple has been dishonest about this in its court filings? Because, it has expressly denied directing its contract manufacturers to withhold payments from Qualcomm.

    There's a difference between withholding payments from one of your suppliers, even if you tell them you're doing it because of a dispute you have with one of their licensors, and directing them to withhold payments they might owe to that licensor. That's particularly true in the context of a tortious interference claim. Apple has asserted, in no uncertain terms, that it didn't direct its contract manufacturers to withhold payments from Qualcomm. Apple has, however, acknowledged that it has withhold certain payments from its contract manufacturers and told them it was doing so because of a dispute with Qualcomm.
    ronnradarthekatstompy