Courts Close the Loophole Letting the Feds Search Your Phone at the Border
reason.com
reason.com
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
(Credit for case law information to: https://www.wilmerhale.com/insights/client-alerts/20231115-o...)
When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.
I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.
If I had to wager, SCOTUS will uphold warrantless border searches.
I would say the court is generally less defendant-friendly and less government-friendly.
Maybe in the narrow case where government = armed law enforcement, more government- friendly.
That said, my own take has been for a while, that if I travel across borders that I'd specifically buy a burner phone and something cheap like a chromebook, possibly in the country being travelled to and expressly wiped clean before travel if taking said device across the border. Keeping some printed/written notes with contacts that I can establish on the other side.
It's kind of weird in that I don't think the above is excessively paranoid given how intrusive state actors can be, not just the US.
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
https://supreme.justia.com/cases/federal/us/573/373/
The opinion was written by Roberts with a concurrence by Alito.
Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
https://www.historyoasis.com/post/benjamin-franklin-the-woma...
Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)
Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.
Originalism is funny, by the way. By its tenets, if you don't like what the Constitution says, you can pass an Amendment with the exact same words as the Constitution but those words would have new, different meaning.
Sure. As I said, "Scalia was textualist." All dachshunde are dogs. Not all dogs are dachshunde.
IIRC pretty much 99% of state and fed courts had ruled against the warrant requirement for GPS tracking until it hit SCOTUS and they went the opposite direction (just): https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)
Gorsuch, Neil M. April 10, 2017
Kavanaugh, Brett M. October 6, 2018
Barrett, Amy Coney October 27, 2020
Jackson, Ketanji Brown June 30, 2022If the exact same case came before the Court today, would it rule differently? I doubt. One must assume Roberts, Thomas and Alito would rule the same way. Ideologically, Gorsuch, Kavanaugh and Barrett are all less conservative than Thomas and Alito, more conservative than Roberts – which suggests if Roberts, Thomas and Alito are all ruling the same way, probably Gorsuch, Kavanaugh and Barrett would too. And Jackson is both a liberal, and has been seen to be defendant-friendly even when the other liberals wouldn't be (see when she joined all but of the conservatives in the recent J6 case, while Barrett joined the remaining liberals). So probably, that case would go the same way today as it did in 2012.
Now, this is a separate issue, so the outcome of that 2012 case isn't decisive in how this case would be decided (if it ever reaches SCOTUS). But it would be wrong to assume that SCOTUS becoming significantly more conservative is necessarily going to change the outcome.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
I was strip searched
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.
Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
They essentially told me they'd given up.
I also reported a nurse who acted without consent to the nursing board. The board covered for her. And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented.
The ACLU occasionally picks up cases but rarely and even rarer for an unsympathetic white guy.
It feels pretty hopeless honestly. They have QI,the courts, and every institution covers for them. At the border, CBP is god, even immune from 1A right to record them.
Step-daughter was involved in a car accident at a lighted intersection. No cameras, no witnesses, nothing, just her in her car, and the other driver in his.
Police officer: "Did you have a green light?"
Step-daughter: "Yes, I had a green light."
He goes over to the other driver, and is back within two minutes. "The other driver said he definitely had a green light, so I'm issuing you a citation for failure to obey a traffic signal."
Indeed, this same federal court has already ruled against warrantless phone searches in US v Smith (SDNY 2023).
As it is I wouldn’t be surprised if the government doesn’t appeal to avoid setting a wider precedent.
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
Or does it apply to everybody?
And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
I've been asked for my phone at customs, and I just hand over the "nokia". They can play snake all the like.
You, too. This is not helping you get your point across, which I'm assuming was the reason you wrote your comment.
However, I would question whether denying historical facts is an opinion. There seem to be fewer cases of people demanding that the holocaust should be resumed. That I would call an opinion. I assume that it would lead to prison if repeated often enough, albeit based on a different law. Still, I am more willing to travel to such country than to a country requesting my passwords at the border. Call it illogical or not, it's my preference.
Historical facs have a tendency to change based on the current political climate. Which is to say, they are always more like opinions.
Although a better example would be insulting a police officer or politician, which can include as bening things as making fun of them on twitter. Granted, this is more a concern for citizens than it is for tourists so I agree with your assessment that the US border controls are a bigger threat to you as a traveller.
https://freedomhouse.org/countries/freedom-world/scores?sort...
In general I am very skeptical about the concept of citizenship. It's an instrument of discrimination.
For travelling I am much more free to set my preferences. And the US has happened to end up on my personal shit list because of their border procedures. I know them since the 1980s and they have always been some kind of unpleasant, although nothing bad has ever happened to me. I have no criminal intent, you just need to learn to play the game to get through. But in the digital age I don't want to play their game anymore.
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.)
The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel.
Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement.
Here are two examples of how foreigners have more (and approximately full) rights while inside the US:
Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind.
If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved.
And so on.
Doesn't seem to protect you if the government doesn't like your political opinions.
That said, as far as I’m aware based on publicly available evidence (not simply speculation), in that situation the government was motivated more by the significant extended disruption from the protest than by the particular political views involved.
What are you referring to?
Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
These people didn't swear an oath to the constitution, the people who wrote the unconstitutional laws they are enforcing did.
You seem to be implying a different model under which unconstitutional legislative laws would remain in effect, but the people who passed them would be personally responsible for having gone against the constitution.
I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?
There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.
E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:
<https://www.npr.org/2023/12/22/1221230390/biden-pardons-clem...>
This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.
But your damage control is within reach.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
Passwords are personal data, faces and fingerprints are not, apparently.
The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.
You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
(One might argue that breaking your door without due process of law would be a Fifth Amendment violation. I have no idea what existing precedent says about that.)
Depending on your version and flavour of Android you may need to enable this "Show Lockdown Option" in your settings.
[1] Opening this varies - my pixel is power + vol up, some phones are hold power, etc.
What's the alternative? The guy paid $1000+ just to get there and spent 3+ hours at customs. Refusing is basically saying "ok I fly back home"
The US is known for giving a fuck about privacy and personal borders. That's literally the one thing they are known for
Why Android? Try GNU/Linux with SXMo instead: https://news.ycombinator.com/item?id=39155103
"Why do you use this OS"
"I like the OS"
"Why do you use this language"
"I like the language"
"Why did you buy GME shares"
"I like the stock"
https://cellebrite.com/en/advanced-services/
The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").
And with GrapheneOS you can relock the bootloader, once you've installed it.
Source:
https://news.ycombinator.com/item?id=41072905
https://discuss.grapheneos.org/d/14344-cellebrite-premium-ju...
Does a strip search also require a warrant though?
https://en.wikipedia.org/wiki/Border_search_exception#Search...
So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.
Source? If so, that's a privacy boon for CarPlay and Android Auto.
Then why does iOS warn me that my car will receive data from my phone when enabling car play? Does this just mean the screen, or does it get the texts/calls too?
Several of those can be limited to specific applications, e.g., by setting the $DISPLAY value (X11). For remote desktop that's a bit more challenging but can be managed to an extent using Group Policy settings under MS Windows:
In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.
In what part of the article or thread to which you commented asserted a "necessary" anal cavity search?
Edit: add source 1. https://www.cbp.gov/travel/international-visitors/visa-waive...
The government has a 100% absolute right and responsibility to control what's coming across the border. That's been the common law since King Narmer.
In law school, it's common to skip these cases for time and have the professor summarize the caselaw as "you have no rights at border."