One of the laws that's enforced pretty well in the USA is the protection against unreasonable search. Most of the time, a search requires showing a judge evidence that the search is more likely than not to reveal evidence of a crime. Exceptions are narrow and specific; the government's options to punish someone who refuses to decrypt data at the border are limited to brief detention and seizure of the medium.
Not yet tested is the idea that erasing data on the spot satisfies the purpose of the border search exception, which is to prevent importation of things that are illegal to import. This case might address that question.
Edit to add that its also more difficult than it should be to protect and exercise the right against unreasonable search. If a cop knocks on your door its a consent-based interaction. You can simply not respond, but if you do happen to crack the door they can and will look in for any signs to claim as probable cause. Further there are cases where a person stepped out to talk and when they turned around and walked inside the cop slid right in behind them and later claimed in court the open door was implied consent. (I don't have a link to the court docs unfortunately.)
And there are also many instances of the city being sued, those cops being sued, losing qualified immunity, losing their jobs, etc, because we do still have recourse when cops do the wrong thing.
If your rights were violated, you stand to get a big payout, and get the cops fired that violated your rights. We aren't powerless, yet.
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A federal court denies qualified immunity when an officer’s conduct violates a clearly established constitutional right or when material facts remain heavily disputed for a jury. While appellate and district courts routinely evaluate these claims, absolute lists contain thousands of entries because denials typically happen at the lower or circuit court levels rather than as sweeping national precedent.[0]
Notable Federal and Supreme Court Cases Denying Immunity
Taylor v. Riojas (2020): The U.S. Supreme Court summarily reversed a lower court and denied qualified immunity to correctional officers who housed an inmate in shockingly filthy, human-waste-packed cells for days, ruling that the extreme conditions-violating the Eighth Amendment-needed no prior identical precedent.[1]
King v. Brownback (Sixth Circuit): The 6th U.S. Circuit Court of Appeals denied qualified immunity to members of a joint law enforcement task force after they aggressively tackled and beat an innocent man (James King) outside a convenience store when they mistook him for a suspect.[2]
Schroeder v. City of Des Moines (2022): The Eighth Circuit Court of Appeals ruled that three police officers were not entitled to qualified immunity after conducting an unlawful, suspicionless car stop and subsequent arrest based on an unverified temporary license plate.[3]
Glover v. City of Jackson (2024): A federal district court famously rejected a detective’s qualified immunity defense in a major civil rights action involving fabricated evidence and malicious prosecution, highlighting systemic flaws in the doctrine itself.[4]
[0] - https://ij.org/press-release/massive-new-study-reveals-that-...
[1] - https://leb.fbi.gov/articles/featured-articles/qualified-imm...
[2] - https://ij.org/case/king-v-brownback/
[3] - https://iowaappeals.com/uncategorized/three-des-moines-polic...
[4] - https://eji.org/news/federal-court-denies-qualified-immunity...
I am not familiar with the case, but from my reading IJ is still trying to fight the immunity.
> Instead, the high court asked the Sixth Circuit to decide the issue first. Rather than seriously engaging with the issue, as the Supreme Court asked, the Sixth Circuit unthinkingly applied outdated caselaw, becoming the sixth federal appeals court to do so. Now, IJ is asking the Supreme Court to weigh in and deny the government one of its many tools to avoid the Constitution
Not really, the data points the other way. Cops basically never have to actually pay for their wrongdoings. Over 99.98% of money successfully recovered from cases against police is paid out by the cities, not cops personally [1]. A considerable number of cops that are fired are also eventually rehired by the same department [2] or a different one [3]. So I don't think it's that clear that you "have recourse when cops do the wrong thing".
[1] https://nyulawreview.org/wp-content/uploads/2018/08/NYULawRe...
[2] https://scholarship.law.vanderbilt.edu/vlr/vol74/iss4/4/
[3] https://yalelawjournal.org/pdf/GrunwaldRappaportArticle_s6br...
Note I also didn't say the problem is rampant. I take issue that its possible at all, and that it isn't a 100% success rate of holding police to account, especially when most are required to wear body cameras today.
Sure, but there are also many instances today of evidence getting thrown out in court due to cops not getting a warranty and poisoning the tree and all its fruit. Rights don't just enforce themselves, there are and have to be a number of layers to the onion to help reduce the violation numbers at each stage.
Say they search a vehicle without consent or probable cause and find weed. Then they further investigate the person and find additional evidence they otherwise never would have found. That weed find may get thrown out but it doesn't always nullify the rest of the case, and if the DA is clever they simply wouldn't submit the weed as evidence at all.
A cop pulls you over for a brake light. They decide to go fishing, asking where you're coming from or where you're going, looking for any inconsistency to pull on. Maybe they decide they smell something on your breath.
A well informed person would refuse to ask questions and help ensure the traffic stop can move forward with the ticket, the cop isn't allowed to hold you for longer than required for the initial offense.
Most people when asked questions, though, will answer. Most people asked to take a field sobriety test will oblige. None of that is required and all requires consent - the cop knows that and knows that few people will stand up for that.
Such fishing expeditions should be illegal and anything found should be considered inadmissible due to unreasonable search. When the professional trained in law knows that they can game the average person it should be unreasonable practice.
Border patrol doesn't get immunity from the constitution and my need to reenter the country is not probably cause for a Terry stop and search of my phone.
then consider this paired with the implementation of mass data sharing between the alphabet agencies, surveillance data sharing from private companies like Amazon Ring, Flock, Clearview, etc. and NSPM-7 ordering agencies to create JTTFs to target organizations like BLM
then consider the unmitigated use of force by federal law enforcement agencies like ICE
I think if this were 1995 your point might be fair but those days are unfortunately long gone
Iceland still has the best data protection laws in the world, afaik
"In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Generally speaking, searches within 100 miles (160 km) of the border are more permissible without a warrant than those conducted elsewhere in the United States."
https://en.wikipedia.org/wiki/Border_search_exception
213 milion people live in this zone.
> In a full banana republic, technical compliance with the law will not prevent consequences for failing to do what the authorities want. In a jurisdiction with perfect rule of law, it always will.
I think you may be misunderstanding that many laws, even in fair, just societies, are intentionally designed to be flexible. The real world is so variable and messy that in many cases it isn't feasible for a law to be written such it can be unambiguously determined whether or not a specific action violated the law. Laws often rely on humans using context to judge whether something violates the spirit of a law, and in a just society, this is a good thing.
My point is that I don't believe the idea of "perfect rule of law" is sensible. Law is always necessarily a bit fuzzy and nebulous.
The alternative is complying with the spirit of the law, which is an eternal guessing game. Who knows whether it's legal or not, we have to wait for the Supreme Court to decide what Congress _actually_ meant. It implies that the law means something beyond what anybody bothered to actually write down, and nobody has any idea what that is until the Judiciary interprets it into "actual law".
Americans aren't standing up against this, but they might have considerably more interest if the government was instead trying to ban encrypting data in cloud storage for everyone.
There's also just the fact it's ridiculous I can't have a spare phone ready to go in a few minutes and get it back exactly as I left it.
Substitute cloud storage for a USB stick if you do it at your departure hotel.
There are absolutely technical solutions to the implementations of tyranny. Otherwise we wouldn’t bother with encryption. Violence can’t solve math problems.
Like whatever arbitrary thing they decide it should look like that day.
I'm serious, this is the law in Germany. It's also a great demonstration of a shitty law that people prefer to avoid complying with, which surely has something to do with the topic.
Inc. hiding by leaving it your home country?
the government would have no ability to access the data if he didnt bring it on his person here.
hell, he could have just continued to not given his password and left his phone with them, too.