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Wyden To Introduce Bill To Prohibit Warrantless Phone Searches At Border (onthewire.io) 193

Trailrunner7 quotes a report from On the Wire: A senator from Oregon who has a long track record of involvement on security and privacy issues says he plans to introduce a bill soon that would prevent border agents from forcing Americans returning to the country to unlock their phones without a warrant. Sen. Ron Wyden said in a letter to the secretary of the Department of Homeland Security that he is concerned about reports that Customs and Border Patrol agents are pressuring returning Americans into handing over their phone PINs or using their fingerprints to unlock their phones. DHS Secretary John Kelly has said that he's considering the idea of asking visitors for the login data for their various social media accounts, information that typically would require a warrant to obtain. "Circumventing the normal protection for such private information is simply unacceptable," Wyden said in the letter, sent Monday. "There are well-established procedures governing how law enforcement agencies may obtain data from social media companies and email providers. The process typically requires that the government obtain a search warrant or other court order, and then ask the service provider to turn over the user's data."
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Wyden To Introduce Bill To Prohibit Warrantless Phone Searches At Border

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  • lack of foresight (Score:5, Insightful)

    by Anonymous Coward on Tuesday February 21, 2017 @07:27PM (#53908341)
    If only our forefathers would have had the foresight to create some sort of document that prevented warrantless searches, then none of this would be necessary.
    • They never would have anticipated the current flow of cross border traffic that might make it an issue. Not to mention the sheer storage capacity and communication ability that modern computing devices give us.

      • Re: (Score:1, Insightful)

        by Anonymous Coward

        The flow of traffic doesn't "make it an issue". It isn't an issue, it's a settled point. Americans should not be subject to unreasonable searches and seizures. They most definitely should not be held captive in a tank until they cough up their passwords.

        • by KiloByte ( 825081 ) on Tuesday February 21, 2017 @07:50PM (#53908459)

          Americans should not be subject to unreasonable searches and seizures.

          Note the wording: The right of the people to be secure in their persons, houses, papers, and effects, [...]. It doesn't say "Americans" anywhere. So while I can't run for US president, if I visit, I am supposed to have thugs keep the [expletive] out of my "papers and effects". Which does include my phone.

          • It doesn't say "Americans" anywhere.

            I think it's clear they didn't intend to include slaves.

            • I think it's clear they didn't intend to include slaves.

              Right. That's why they used the word "people".

              Slaves were not people, they were property.*

              *Note: I completely disagree with this fucked up historical view, but this was the thoughts at the time.

          • by raymorris ( 2726007 ) on Wednesday February 22, 2017 @12:36AM (#53909463) Journal

            I don't think border patrol should be searching phones, we agree on that. We disagree on the reason why.

            > So while I can't run for US president, if I visit

            If you visit, sure, no unreasonable search. Just as I treat visitors in my home respectfully, as I'm sure you do in your home.

            Consider when a couple of thuggish looking guys, strangers, show up at my door one night. Not only am I not required to invite them in, but because my wife and 2 year old daughter are inside, I have a responsibility to my wife and daughter to NOT bring potentially dangerous people in. It is my duty to take some care regarding who I allow inside.

            If you want to, you can throw a nude party in your house, and say "if you want to join the party, you need to be nude". Or you can throw a sober party, and say "if you want to come to my party, don't show up drunk." I can choose whether I want to come in under those conditions or not. You haven't violated my rights by setting ground rules for your party.

            When someone standing at the border requesting entry, a country has no obligation to let them in. They in fact have some degree of responsibility to exercise a degree of care about who comes in and what they bring with them. Perhaps the government has no right to search X, for any X, but they DO have the right to say "no you can't come in", or impose any conditions they feel are proper before granting entry.

            Once you're in the US (and while your outside the US), your rights as a human being should be fully respected.

            On the other hand, it would be wrong for me to block your entry into your *own* house, saying "in order to go home, you have to get nude." That's the case of US citizens. Unlike people who wish to visit, peope have a right to enter their own home.

            That said, I thinking searches the phones of visitors as a general policy is just a bad idea. I think it's inefficient, ineffective, and a bit rude.

            • Once you're in the US (and while your outside the US), your rights as a human being should be fully respected.

              *You're

            • Perhaps the government has no right to search X, for any X, but they DO have the right to say "no you can't come in", or impose any conditions they feel are proper before granting entry.

              The problem is that citizens then become virtual prisoners in their country, because if they leave their basic rights don't have to be respected when they try to cross the border.

              More over, your analogy of inviting people to your home is flawed. Countries are not private homes, they are public spaces and the government has very different responsibilities and power than a homeowner. And in any case, the border is not a special place. You would be outraged if the government wanted to search people in public areas just to check that they don't have anything illegal in their bags or on their phones.

              The border is not special. All rights and protections should apply. That means making a trade-off between safety and freedom, and as ever one is worthless without the other.

              That said, I thinking searches the phones of visitors as a general policy is just a bad idea. I think it's inefficient, ineffective, and a bit rude.

              And a massive security risk. We all know how dumb it is to plug random USB devices into your PC. It's basically giving the world access to US border and immigration data.

              • I'm not sure I understand what you mean here:

                > The problem is that citizens then become virtual prisoners in their country, because if they leave their basic rights don't have to be respected when they try to cross the border.

                Are you talking about when a citizen is coming back home? I did say in my post citizens have a right to come home, in general*, and they don't (shouldn't) have to give up other rights to do so. On the other hand, citizens of Syria don't have a *right* to come to the United States

            • Perhaps the government has no right to search X, for any X, but they DO have the right to say "no you can't come in", or impose any conditions they feel are proper before granting entry.

              False equivalency. You have the right to exclude others from your home because you own your home. Your rights of ownership are founded, ultimately, in the homesteading of previously unowned land though the labor of an original owner, plus an unbroken chain of voluntary contracts passing the rights to that land from its original owner to you. The government, by contrast, has no such legitimate claim to ownership of the entire country, and consequently does not have the right to exclude anyone from entering.

              On the other hand, it would be wrong for me to block your entry into your *own* house... Unlike people who wish to visit, peope have a right to enter their own home.

              A

            • I understand your "block entry to your own home" argument, but:

              Once you're in the US (and while your outside the US), your rights as a human being should be fully respected.

              I think this clearly shows the problem with your argument. People's rights as human beings should be fully respected everywhere, without exceptions.
              To verify people are not "potentially dangerous" there is a visa interview and a background check.
              Maybe the interview and the background check could/should be even more strict (it is already the worst). If they consider necessary to check people's phones, social media stuff, etc, they should request

          • Heh American

            If you travel to another country, you are inferring that they have the right to confiscate and examine the contents of your cellphone. You may not have porne there, but perhaps bank account and credit card info, and some other passwords.

            Do unto others as you would want others to do unto you.

      • by Aighearach ( 97333 ) on Tuesday February 21, 2017 @09:07PM (#53908717) Homepage

        They never would have anticipated the current flow of cross border traffic that might make it an issue. Not to mention the sheer storage capacity and communication ability that modern computing devices give us.

        Most of them personally arrived across the border more times than the average modern American does. And they carried storage devices with their data!

        And nothing in the Constitution was there as a matter of convenience due to limited storage capacity of government warehouses.

    • did our forefathers have cell phones that run our lives.
      • Re: (Score:2, Insightful)

        by Anonymous Coward

        No, but they did have private documents.

        Can you imagine what would have happened if James Madison was crossing the boarder and someone said to him "Pass over all your documents, my scribe is going to take a copy of them"

        There is nothing new here, it is just a document search and seizure.

        • by vux984 ( 928602 ) on Tuesday February 21, 2017 @08:25PM (#53908577)

          No, but they did have private documents.

          But its not the same. In those days, when you travelled and crossed borders you had to more or less consciously give some attention to the documents you brought with you. Reams of paper get pretty heavy; and so it wasn't customary to have every document, photo, and piece of correspondence, you ever produced or received *on your person*.

          Now you cross the border... and your phone or laptop; especially if its also linked to additional cloud storage accounts and social media etc... it literally has the potential to be a every document, photo, and piece of correspondence you have ever received; and we don't give it a 2nd thought ... we need our phones to make a few calls or receive emails and look at maps while travelling, and we don't think about just how much data we're carrying around with us until some belligerent TSA goon is demanding we hand over our phone and laptop passwords.

          We're not deliberately carrying all our photos and email history and bank records and tax documents through customs because we want to transport them to another country... its just incidental to how we use the devices.

          • by Anonymous Coward

            > But its not the same.

            It is the same, private documents are private documents no matter how you store them.

          • No, but they did have private documents.

            Can you imagine what would have happened if James Madison was crossing the boarder and someone said to him "Pass over all your documents, my scribe is going to take a copy of them"

            There is nothing new here, it is just a document search and seizure.

            But its not the same. In those days, when you travelled and crossed borders you had to more or less consciously give some attention to the documents you brought with you. Reams of paper get pretty heavy; and so it wasn't customary to have every document, photo, and piece of correspondence, you ever produced or received *on your person*.

            Now you cross the border... and your phone or laptop; especially if its also linked to additional cloud storage accounts and social media etc... it literally has the potential to be a every document, photo, and piece of correspondence you have ever received; and we don't give it a 2nd thought ... we need our phones to make a few calls or receive emails and look at maps while travelling, and we don't think about just how much data we're carrying around with us until some belligerent TSA goon is demanding we hand over our phone and laptop passwords.

            We're not deliberately carrying all our photos and email history and bank records and tax documents through customs because we want to transport them to another country... its just incidental to how we use the devices.

            If James Madison was reentering the country with a suitcase of documents, it would still be egregious to demand they be turned over for copying before allowing passage. "Ah, but what if it's his entire personal library, packed in boxes. He might be smuggling contraband. Customs should be allowed to inspect!" Too true, but what invasive species, sickened animals, blood diamonds, ivory, or tiger penis might be in the ones and zeroes of James Madison VIII's phone?

      • by Rick Schumann ( 4662797 ) on Tuesday February 21, 2017 @07:59PM (#53908503) Journal
        My cellphone doesn't "run my life", why does yours?
        • by mjwx ( 966435 )

          My cellphone doesn't "run my life", why does yours?

          To be fair, my mobile phone is pretty useful. Far easier than carrying around all the stuff I'd need to do the same thing in paper format.

          But much like paper format, I don't keep anything on my phone that I need to keep private or confidential.

  • by Anonymous Brave Guy ( 457657 ) on Tuesday February 21, 2017 @07:28PM (#53908343)

    It's disappointing how these measures always seem to be about protecting the rights of whichever host country is involved, while completely ignoring any intrusion/violation of the rights of visitors.

    • by ASDFnz ( 472824 ) on Tuesday February 21, 2017 @07:43PM (#53908427)

      while completely ignoring any intrusion/violation of the rights of visitors.

      Speaking as someone from another country (New Zealand) who has visited the US on several occasions (mostly social) I can tell you it has certainly become an issue.

      Recently I was planning to attend an event in Las Vegas (hobby related). My first thought was to the invasive border security that is already in place but I though why not and decided to go anyway.

      Others decided differently, in the end the event in Las Vegas was canceled because of the invasive border protection and we all went to Australia instead.

      • Doesn't anyone see just how bad this has become when a Kiwi would rather go to Aus than America?

    • These regulations will not violate my rights, because I have even stopped considering any travel through the US as a stop-ever.

      If the US wants my tourist dollars, they should stop treating their customers like criminals first.

  • That the traditional function of a Senator for Oregon is to drive the rest of the Senate crazy.

    In this case, more power to him!!!

    • I think every state needs to be issued at least one Ron Wyden. Preferably two.

      • Re: (Score:3, Insightful)

        There's a whole bunch of them running around. You gotta get people to chase them down and vote them in.

        Now, how many people here really believe that this congress and president are going to pass and sign such a bill? Where were the democrats when they had control of congress and the presidency just eight short years ago? This is just more soap opera. Campaign season never ends.

      • How about a Ron Wyden and a Ron Paul.
  • Senator Wyden: (Score:5, Informative)

    by rmdingler ( 1955220 ) on Tuesday February 21, 2017 @07:31PM (#53908363) Journal
    I certainly appreciate the sentiment, and I hope your endeavor is successful. Far too many freedoms are forfeited at the border, and at Customs during TSA "interviews".

    Although it should go without saying, and certainly without legislating, once American citizenship is established at these checkpoints the full protection of the Constitution against unlawful search and seizure immediately kicks in.

    • You would think it would. But they play these games at the border where x amount of distance (something 500 or 1000 feet) on either side of the border is "a no man's land" and same thing at international arrival areas at airports. Its not US territory, nor is it Canadian or Mexican territory for the land borders and as such claim your constitutional rights aren't in effect there. This is why they can ask all the questions they want, search your car, detain you and all that other good stuff and not "violate"
      • Re:Senator Wyden: (Score:4, Insightful)

        by maglor_83 ( 856254 ) on Tuesday February 21, 2017 @08:03PM (#53908515)

        The constitution is a list of things the US government is ALLOWED to do. If it doesn't apply in 'no-man's land', then surely they can't do anything.

      • by mark-t ( 151149 )
        Would *you* risk getting detained for an indefinite period, however illegally, just because you want to assert that your constitutional rights are being violated? Of course I can appreciate the sentiment behind what you are saying, but people are bending over and taking this kind of crap at the borders not because they particularly *want* any appearance of increased security, but because they just want to fucking go home, and cooperating fully with the border agents, even the ones who might abuse their pos
        • Would *you* risk getting detained for an indefinite period, however illegally, just because you want to assert that your constitutional rights are being violated? Of course I can appreciate the sentiment behind what you are saying, but people are bending over and taking this kind of crap at the borders not because they particularly *want* any appearance of increased security, but because they just want to fucking go home, and cooperating fully with the border agents, even the ones who might abuse their position, and even if your rights are being violated, is generally expected to be the most expedient path to that end.

          That's precisely the fucking problem. People are no longer willing to be even inconvenienced to stand up for their civil rights, earned by the very blood of those who came before them.

          • Being detained for an indefinite period is more than a mere "inconvenience".

            That said, as I would do with any law enforcement encounter, I would "comply" and then file suit when I was safely at home.

      • Re:Senator Wyden: (Score:4, Interesting)

        by PinkyGigglebrain ( 730753 ) on Tuesday February 21, 2017 @11:27PM (#53909239)

        I've always found the whole "no mans land" thing amusing in a twisted way since the customs agents claim to have legal authority to ignore the Constitution and yet it is the Constitution that grants them any authority in the first place.

        If the Constitution/Bill of Rights does not apply and they have no authority to do anything. But If they claim that they have any authority then the Constitutional/Bill of Rights protections apply. And as another poster pointed out the Constitution doesn't have a clause "These Rights only apply to American Citizens".

    • Send him snail mail or a phone call.

      • Send him snail mail or a phone call.

        Come on now. He's a member of the Senate, the most exclusive club in the country. You don't think he reads Slashdot?

    • by Anonymous Coward

      The constitution's provisions about search and seizure make no reference to citizenship. If it applies to an American citizen, it applies equally to a Russian or Iranian citizen in the same place and the same circumstances.

    • What about citizens of other nations? Do they actually have fewer rights in the USA? Our own constitution and laws do grant some rights exclusively to citizens, but a lot of other laws, especially the ones having to do with search and seizure, arrest and subsequent processing, warrants, and other basic rights, apply equally to everyone in the country. And our country includes the immigration officers' desks.
      • Very few US laws are based on citizenship, most laws including constitutional rights apply to everybody who is here.
        The colloquial subject language simply focuses incorrectly on citizenship.

        • by Ihlosi ( 895663 )
          Very few US laws are based on citizenship

          Notable exception: Tax laws.

          Actually, they're based on both - residency OR US citizensip makes you liable to pay income taxes.

  • has it come to this (Score:5, Interesting)

    by supernova87a ( 532540 ) <kepler1.hotmail@com> on Tuesday February 21, 2017 @07:37PM (#53908397)
    My first question is why this has to be a bill, when through the normal course of judicial process such evidence would be tossed out by courts for being improperly obtained.

    Then I remembered that in the area of national security and border / immigration enforcement, the executive branch has pushed their own discretion so far that Congress / courts really do have to put protections like this into law for it to be heeded. Basically they have been cut out of the loop of immigration and border enforcement as just bystanders, because the executive branch has all the guns, and it only comes to Congress/courts' attention when someone makes it in (and isn't kicked out immediately) and survives long enough to file a habeus petition.

    The real check and balance needed would be for border agents and officials who abuse their authority to be penalized for it.
    • by Anonymous Coward on Tuesday February 21, 2017 @08:00PM (#53908509)

      How do you prove that a border agent or office has abused their authority? I have personally seen CBP agents going through a person's phone and their private photos. They were sitting in the booth going through them while I waited but they did not realize that I can see what they are doing through the reflection in the glass on the booth.

      They have also attempted to open my devices when I am stopped for a random check. I get the alerts in my e-mails and on my watch.

      The point is with no oversight or prerequisites to make border guards follow, with required outcome, then abuse will be rampant. The guards see a good looking male or female and force them to unlock the phone just to gain access to their most private moments. These are done behind closed doors and can be copied without permission and are nothing more than abuse of power.

      • The guards see a good looking male or female and force them to unlock the phone just to gain access to their most private moments

        To focus on a small part of what you said: if you store it on your phone, it's not one of your private moments. Even if the government wasn't the one looking at your data, it's stored and monetized by, e.g. Google.

        • The difference is.. with groups like google, there are definite terms of service (ie: limitations on what they CAN use and what they CAN do with the data) (and they have a vested interest in keeping the data secure and anonymized because breaches engenders distrust which hurts the profits), and their use of your data can't toss you in jail, or potentially harm your life (assuming you are not doing some clearly illegal). Vs. a CBP officer has the ability to do with your data as they wish without any clear t

          • I'm not disputing government oversight is required. I'm saying I have no reason to trust Google. After all, the US Constitution is more enforceable than Terms of Service, and it is also a limit on what info they can use (e.g. they cannot use your communications with your lawyer or priest) and what they can do to collect the data). Google may value trust now, but it only takes one time when they calculate it's worth the risk x chance of being caught to overstep. And then claim they had to to maximize sha

  • I am in full support of this.
    However, I give it about 5 seconds before some DHS stooge argues that entering the country counts as probable cause and the same judge that allowed Stop and Frisk [wikipedia.org] falls for the same equally bullshit reasoning.
  • by yayoubetcha ( 893774 ) on Tuesday February 21, 2017 @08:47PM (#53908641)

    I cannot stomach such a policy, but I'll turn over my recently wiped phone and my password "4thamendment" to them.

    When I leave the airport, I'll have Google Play reload everything and plug-in my uSD card, and I'll be good to go.

    Yes, it's an inconvenience, but I protect my privacy and the US Security Theater can continue it's performances.

    • This is a phenomenal idea, specifically referring to the password, haha.

    • I cannot stomach such a policy, but I'll turn over my recently wiped phone and my password "4thamendment" to them.

      When I leave the airport, I'll have Google Play reload everything and plug-in my uSD card, and I'll be good to go.

      Yes, it's an inconvenience, but I protect my privacy and the US Security Theater can continue it's performances.

      When they discover that your phone 'has been wiped for the border' you can expect them to become much more interested in you. Because 'obviously you are hiding something'.

  • by seoras ( 147590 ) on Tuesday February 21, 2017 @09:36PM (#53908833)

    This shit can't be good for the US economy. Tourism and airlines will be most affected.
    I live in NZ but I'm from the UK. I used to live in SF Bay and have friends there. So when flying home to the UK for a visit I would fly via SFO.
    Not anymore. Even flying through the US without going into the country is like an Orwellian nightmare.
    So I fly Emirates via Dubai. It's a damn shame as used to think of California as a 2nd home and loved visiting there.
    I can't be alone in my boycotting.
    The saddest thing is that modern America starting to look more and more like the old USSR.

    • by Kabukiwookie ( 2677869 ) on Tuesday February 21, 2017 @11:20PM (#53909221)
      It's funny (in a not so 'haha' way) that the dictatorship that is the UAE (sorry 'monarchy'), is actually less intrusive to travel through than the shining beacon of democracy that the US is supposed to be...
      • by Agripa ( 139780 )

        It's funny (in a not so 'haha' way) that the dictatorship that is the UAE (sorry 'monarchy'), is actually less intrusive to travel through than the shining beacon of democracy that the US is supposed to be...

        The UAE has to actually compete. The US does not have to or so they believe.

  • If you demand people hand over passwords, expect to have yours demanded of you when you cross the border headed somewhere else.

    This is how most biometric collection works - but, fair is fair.

    Sigh.

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