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Government Privacy Security United States

Bill Would Stop Warrantless Border Device Searches of US Citizens (cnn.com) 128

Senators Ron Wyden and Rand Paul as well as Reps. Jared Polis and Blake Farenthold have introduced legislation that would require law enforcement to first obtain a warrant before they can search our electronic devices when we enter the United States. From a report: A new bipartisan bill would prevent Americans' electronic devices from being searched at the border without a warrant, a response to an increase in such electronic searches. The bill would require a warrant before agents could search Americans' phones, laptops and other devices at entries to the US, including airports and border crossings. "Americans' constitutional rights shouldn't disappear at the border," Wyden said in a statement. "By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data."
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Bill Would Stop Warrantless Border Device Searches of US Citizens

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  • by Anonymous Coward on Tuesday April 04, 2017 @02:02PM (#54171903)

    Sounds like a guy I'd like to drink beer with!

  • by rogoshen1 ( 2922505 ) on Tuesday April 04, 2017 @02:09PM (#54171941)

    i thought there was a much, much older 'bill' that already covered this?

    • That one apparently didn't work.
    • by harl ( 84412 )
      Judicial says no. Legislative says fine we make one that does. That's how the system is set up.
    • No. Historically, the Constitution does not apply outside U.S. territory [constitutioncenter.org]. That's why Bush put a prison on Guantanamo Bay - it wasn't U.S. soil, it was Cuban soil being leased to the U.S. (though eventually Boumediene v Bush [wikipedia.org] found that due to the U.S. having complete control of the area, the U.S. had de facto soverignty as if it were U.S. soil). So when you're at a U.S. border checkpoint awaiting entry into the U.S., the Constitution does not apply, at least not to non-citzens.

      While it has generally been

      • And yet the border 'territory' includes 100 miles INSIDE the US.

        https://www.aclu.org/other/con... [aclu.org]

        Which includes something like 1/3 of all Americans.

      • okay well this is one of those situations where the letter and spirit of the law differ drastically. The bill of rights was created specifically to curtail this kind of bullshit (and what the TSA and similar agencies are now doing)

        The fact that we'd need a bolted on bill to reinforce the fucking constitution is just absurd. the founding fathers would be spinning in their graves over how far the government's overreach has gotten.

      • by bigpat ( 158134 ) on Tuesday April 04, 2017 @05:12PM (#54173423)

        So we can dispense with constitutional rights as long as we declare US soil not to be US soil for the purposes of that particular constitutional right?...

        The rule of law is untenable when so easily tossed aside when inconvenient to the government.

      • I believe the original purpose of the Constitution was to spell out what the Federal government can and can't do, which contradicts this. Either the Feds are permitted to run Gitmo under Constitutional principles, or they aren't permitted to run it at all.

        Congress has the responsibility for making laws about border control, and the President has the responsibility of carrying them out. That doesn't mean border control can legally violate the Constitution.

    • by edjs ( 1043612 )

      i thought there was a much, much older 'bill' that already covered this?

      You do have that phrase "against unreasonable searches and seizures" in there - and the court has affirmed that there is a much lower bar for what's considered reasonable at a border crossing.

  • by cdrudge ( 68377 ) on Tuesday April 04, 2017 @02:10PM (#54171943) Homepage

    "Americans' constitutional rights shouldn't disappear at the border,"

    One of two things will happen:

    1. Customs inspection will be moved from US soil to foreign soil if it wasn't already there. There. Problem solved. Your constitutional right never disappeared at the border because you never crossed it.

    2. You'll be asked to consent to search your device/property. Those that consent will be searched and allowed to go on their merry way if nothing is found. Those that don't consent will be redirected to holding pen where at minimum a lengthy process will commence to obtain a warrant. Best case, you lose a few hours, miss your connecting flight, and are now on a watch list for suspected activity which will increasingly delay future entrances. Worst case, you're never heard from again.

    • Are those the only 2 things you can think of? I can think of something that you didn't expect:

      1. Border agents abide by the law, and no longer search your phone.

      2. Border agents act as you describe in #2 of your post, which would lead travelers to wipe their phone before crossing, and restore the data later. But, the border agents could set up a free wifi hotspot and advertise "free internet access" so travelers could quickly re-sync the data from their phones. Of course, since the hotspot is controlled
      • Of course, since the hotspot is controlled by customs, they can sift through your data.

        Wouldn't you have to go out of your way these days to find a service that doesn't at least use HTTPS?

        • by tepples ( 727027 )

          HTTPS is an improvement but still leaves the hostname and response length visible to a passive eavesdropper, who can use that to determine which sites you visit and which apps you use.

          • Restoring data would simply be a binary blob downloaded from AWS/Google/Apple's CMS servers. The server connection URL would indicate what manufacturer made the phone, however that is pretty obvious from just looking at it.

            It would be quite difficult to gain real intel based only on the size of the data blob.

            You could probably figure out which apps are installed based on re-downloading the app binary, but again, that does not tell you very much.

      • by cdrudge ( 68377 )

        Are those the only 2 things you can think of?...

        1. Border agents abide by the law, and no longer search your phone.

        Why would I bother to list all the things that won't happen?

      • 3: Leave phone at home and claim you're on a "Digital Detox", then buy burner phone once at destination. Dump before returning home.
    • by El Cubano ( 631386 ) on Tuesday April 04, 2017 @02:39PM (#54172119)

      Customs inspection will be moved from US soil to foreign soil if it wasn't already there. There. Problem solved. Your constitutional right never disappeared at the border because you never crossed it.

      I don't think that this would hold up. There are US laws which apply to US citizens overseas. For example, if you live and work abroad as a US citizen, you still owe taxes to the federal government (usually offset by some amount of taxes you have paid to the foreign country in which you live work, subject to any tax treaties that are in effect). Also, if you travel overseas, for example, to engage in prostitution with minors the US government can prosecute you on your return. If the government exerts the force of law in such manner over its citizens for things they do outside the country, then they would have to likewise respect their rights as citizens even when they are outside the country. Of course, I wouldn't put it past the government to try something like what you are suggesting. But I would also expect the ensuing court challenges to be successful.

      • by Anonymous Coward

        Ah, but you wouldn't impose it as a requirement on passengers. You'd impose it as a requirement on the airline. "Can't fly into a US airport without certifying that every passenger has been through these checks".

        That aside, I'm surprised no-one has mentioned the 14th amendment yet. The government may not "deny to any person within its jurisdiction the equal protection of the laws".

        That means, if it's illegal to do it to an American citizen, it's also illegal to do it to a British or Saudi or Russian citizen

    • Unfortunately that cannot happen. If it's foreign soil, they have no mandate to operate outside the US, and would need to also abide by the laws of the host country. Should host country declare that the soil those agents are on is sovereign, such as an embassy, then that land would be considered US soil and thus the border crossing applies as if those agents were back on "normal" US soil. That's how I understand it, however the usual IANAL disclaimer applies here.
    • Having US customs on foreign soil gives you another avenue of legal appeal against customs overreach. You violated Canadian law when you demanded my Uporn password!
    • by Zemran ( 3101 )
      "Customs inspection will be moved from US soil to foreign soil if it wasn't already there. There. Problem solved. Your constitutional right never disappeared at the border because you never crossed it." Given that this process discriminates against said foreigners this would never happen. The EU is already considering ending the visa waiver agreement as the US is not abiding by it. You cannot continue to trample on the rights of guests for as long as you can trample on the rights of your own citizens.
    • by Daerath ( 625570 )

      1. How exactly would they move customs inspection from an airport firmly inside the U.S. to a spot outside of the U.S. without moving the entire airport? Sure, fly in to Washington Dulles, but first we stop in Bermuda? Hardly.

      2. The bill explicitly forbids that, so like, unless they have a reason to detain you other than, "I want to check your stuff", they wouldn't be able to do it.

      • by cdrudge ( 68377 )

        How exactly would they move customs inspection from an airport firmly inside the U.S. to a spot outside of the U.S. without moving the entire airport?

        Some locations in other countries already have customs prelcearance [cbp.gov] facilities.

  • by reginaldo ( 1412879 ) on Tuesday April 04, 2017 @02:10PM (#54171949)
    I don't understand how this isn't currently the law. By seizing and searching my cellphone and social media accounts, law enforcement officers are basically searching my property on a server somewhere in the world, and using that to determine whether I have or will commit a crime. Can law enforcement agents go through my home without a warrant if I am trying to pass the borders? What is the difference between my digital and physical property? Regardless, it is doubtful that this bill will pass any time soon given the current state of congress.
    • I agree probable cause should be needed. And a warrant to prove it. The difference with your home is that it is clearly US citizen property because it's on that side of the border. It's similar to them wanting to check your car when you drive back in from Mexico. Who knows what nefarious things you're bringing back on your devices!?
    • Also, what about non-Americans? Citizens and aliens don't have the same rights, privileges or obligations by law, but in most normal countries, foreigners enjoy the same protection as citizens when it comes to law enforcement. Foreigners might receive a bit more scrutiny, but the same rules apply. Or should, at least.
      • by tindur ( 658483 )
        You can avoid this by travelling to some other country.
        • You can avoid this by travelling to some other country.

          That goes without saying.

          However, it is a shame that it's necessary. America has a lot to offer the world - beautiful geography, interesting history and people, and some of the most exciting cities.

          It seems to me that treating foreigners equally and respectfully should be a priority.

      • by mrchaotica ( 681592 ) * on Tuesday April 04, 2017 @03:15PM (#54172435)

        Also, what about non-Americans? Citizens and aliens don't have the same rights, privileges or obligations by law...

        This is a common misconception, at least when it comes to the Bill of Rights. Most of the amendments in it are not written to declare that "citizens shall have X right;" instead, they are written that "the US Government shall not infringe upon X right that the people have." In other words, the Bill of Rights presumes that the rights in question a priori exist as natural rights and prohibits the government from doing anything that violates them. Since non-citizens are a subgroup of "all people," and since non-US territory is a subgroup of "everywhere," the government is just as much prohibited from infringing the rights of foreigners or committing extraterritorial acts of infringement as it is for infringing the rights of US citizens on US soil.

        That's the theory, anyway. Unfortunately, the CBP, TSA, and other TLAs are doing all sorts of unconstitutional shit and the Supreme Court apparently can't be bothered to stop them.

        • Good points. Perhaps ceding that non-citizens have no rights is not the right starting point.

          Government should get a warrant.

          Government should also respect people's right to privacy and end all drug prohibition so most searches are not needed in the first place and won't find any "contraband" being smuggled. But that is another discussion.

      • Nowhere in the Bill of Rights does it say that it applies only to citizens, e.g.
        ... the People...
        ... no person...
        ... the accused...

        It has always been my understanding that it applies to everyone that is here. If you come here from Canada and do something illegal, you still get a speedy trial (by jury) and a court appointed lawyer if you need one. If you're Swiss, the police don't get to search your house without a warrant. If you're Japanese, the government can't insist that you go to church on Sunday or

      • All of the US Constitution applies to citizens, resident non-citizens, and visiting non-resident non-citizens - except being able to vote or to become President. Those are the only parts of the Constitution (as amended) that limit to whom they apply based on citizenship. The rights, for example, of freedom from unreasonable search and seizure, of freedom from lengthy detention or cruel and unusual punishment, of trial by jury only after indictment, protecting free speech, strictly defining treason, and so

        • by AHuxley ( 892839 )
          Re "All of the US Constitution applies to citizens, resident non-citizens, and visiting non-resident non-citizens"
          Once in the USA.
          At a crossing a person can still be searched and asked a lot of questions. About what is found during a search. Support for or funding of groups of interest to the USA?
      • by AHuxley ( 892839 )
        Non non-Americans do not have a US "right" to enter the USA. They can present the correct paper work, get searched, get asked questions. On the first lie, its back to their own nation.
    • by Luthair ( 847766 )
      I saw some BS reasoning like only looking at 'read' messages because they would be cached. If they take the device into another room you can guarantee that they are connecting it to a machine to copy the phone's data (you might want to consider logging into Google, Apple, etc. and removing the devices then re-authenticating to expire old tokens which may have been copied).
    • Google 4th amendment free zones
    • What, you mean now that the fascist progressives are in the minority across the federal government? Note that this bill didn't get passed in 8 years under Obama, 2 years where the Dims had the house, senate and presidency, 4 years where they had the majority in the senate.

      Pull your head out of wherever and realize that this bill is being sponsored and actually has a shot at passing because the Republicans are now running the show. They want smaller, less intrusive government for as many people as possible

      • by lgw ( 121541 )

        ull your head out of wherever and realize that this bill is being sponsored and actually has a shot at passing because the Republicans are now running the show. They want smaller, less intrusive government for as many people as possible.

        A few Republicans do. But mostly they're seen as a bit nuts by the Republican establishment - heck, Rand Paul sponsored this. I'd be surprised if it passes.

        I'm all for a Republican party that actually wants smaller government, but clearly the majority of the current crowd doesn't - they want to run on the issue, but not actually change anything ever.

        • As opposed to Democrats who literally want to control when and how you take a shit (via pollution and water use laws). Trump is reducing the size of the executive branch departments across the board and in some departments gutting them. Trumps budget cuts ~$1T/year in government spending. You need to watch less MSNBC... http://thehill.com/policy/fina... [thehill.com]

          • by lgw ( 121541 )

            Trump is obviously not an establishment Republican. I've seen no evidence that his budget will go anywhere - the first response from the establishment was "we write the budget, Trump doesn't". Not a promising sign.

            • Trump can cut the size of the federal government all by himself. He controls the executive branch which is most of the jobs in government, and he can place hiring freezes at will or cut headcount at will. The money will just sit there unallocated until the next budget is passed. Congress controls the purse strings, the president controls how big of a hole is draining money out of the purse though.

    • by Anonymous Coward

      The current state of affairs with LEO is that unless they are explicitly prohibited from an activity then it is lawful. Yes this is in direct conflict with our constitutional rights, but they have the guns and border barriers. Same attitude we see in "police states"

    • by rastos1 ( 601318 )

      I don't understand how this isn't currently the law.

      That one is easy. It's all about one word: "unreasonable".

      I find unreasonable that SCOTUS does not see border searches as unreasonable. And SCOTUS finds unreasonable my opinion that border searches are unreasonable.

    • by AHuxley ( 892839 )
      A US citizen gets to be asked questions and searched. That is part of moving out of the USA and returning to the USA.
      If every US person then gets to lawyer up for every simple bag search, the flow of people into the USA would stop working.
      So it is legal to ask for a search and the person does not have the "right" to say stop that search or demand a lawyer.
      When something is found they face a normal US court with all the lawyers as normal.
      A few people have tried the lawyer issue or demand "rights" on ent
      • More to the point, the Supreme Court considers border searches to be much more reasonable than other searches. What we have here is members of Congress attempting to add to what is considered unreasonable at a border search (and I already consider such searches of data unreasonable, FWIW).

        • by AHuxley ( 892839 )
          The data part is often to look at the digital images. Did the person go to a different nation but claim (lie) about any other nation (locations seen in image and any gps data kept in file).
          Faces get run past recognition software and public/private/mil/police/public-private partnership/international/US state databases. Are people in an image, are any of interest to the USA or any other nation that requests the US look for a person of interest?
          Do the images show support for or funding of groups of interes
  • by Anonymous Coward

    They'll just station a judge at the border and continue as usual.

    • by tepples ( 727027 )

      How will officials show probable cause to said judge, as required by the Fourth Amendment?

  • by zerofoo ( 262795 ) on Tuesday April 04, 2017 @02:15PM (#54171973)

    If the government isn't willing to recognize the protections of the 4th amendment, why would the government recognize the protections of this new law?

    • by Gilgaron ( 575091 ) on Tuesday April 04, 2017 @02:27PM (#54172039)
      My understanding is that the current precedent is that the fourth amendment doesn't apply at the border. With a new law explicitly dealing with this border situation, any precedential mushy interpretation of the fourth is irrelevant. If they write it tightly, the justices won't have a way to creatively interpret it, either. We'll see how it goes...
      • It applies anywhere withing 100 miles of a US border
      • > the current precedent is that the fourth amendment doesn't apply at the border.

        It applies to US citizens at the boarder. EFF is a bit tongue in cheek when they call it a constitution free zone. The current ruling (as I understand) is that crossing the boarder is probable cause and because it is needed to perform the governments constitutional right to secure our boarders inspecting possessions is allowed.

        That they extended that to searching records, held in devices. And that they can hold even citi

        • The current ruling ... is that crossing the boarder is probable cause

          Nonsense. That would mean that these searches are more likely than not to turn up evidence of illegal behavior sufficient to justify the search. Since there are far more people crossing the border than instances where they actually find something worth prosecuting, the mere fact that one is crossing the border cannot be probable cause.

          In any case, having probable cause is only the first step in the process. After determining that probable cause exists, and supporting that cause by oath or affirmation, they

          • I didn't do a good explanation of the exception: https://en.wikipedia.org/wiki/... [wikipedia.org] does it better. Basically what I was trying to say (copied from the wikipedia article)

            "the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border"

            This is part of the justification for why a warrent is not required and that the probable cause standard is lowered.
            I do see some need for this, but applying thi

          • Back up a bit and read the Fourth carefully. It prohibits unreasonable search and seizure, and provides requirements for warrants. It doesn't say that searches need warrants, as long as they're reasonable. Police can search a person for weapons when taking that person into custody, and almost everyone agrees that that's reasonable. If I'm crossing a border, the country I'm entering has a strong interest in what I'm carrying, so searching becomes reasonable. If I'm out with my suitcase inside the US, i

      • The Constitution is very clearly written in this regard, and the Judicial and Executive branches routinely ignore it or hand-wave it away. Americans have the full protection of the Constitution while within the borders of the U.S. U.S. law enforcement officials have no authority outside of its borders.

        Therefore, U.S. law enforcement has no legal right to do most of the things they are doing at the border, and belong in prison for violating our highest law of the land; as do many judges and Justices.

      • In regards to the US citizen and any action by the US government -- the Constitution applies everywhere.

        But when the Bush administration came up with the weasel word; "Enemy non-combatant" to get around military code and Geneva Conventions by placing rights in a no-man's land.

        So that's not to say that rights will stop it, just to point out that they will re-interpet the rules and ignore the spirit of it. Fourth amendment DOES apply at the border. Unless the Mexican government is doing it to you, in which ca

    • If the government isn't willing to recognize the protections of the 4th amendment, why would the government recognize the protections of this new law?

      Because the 4th amendment, intended to be a general overall statement, has subjective language that allows many things. I.e., "unreasonable" search and seizure depends on the definition of "reasonable", and your definition can and will differ from that of the government. This law would be explicit, and thus more focused.

    • "It lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it." - Learned Hand

  • by Trailer Trash ( 60756 ) on Tuesday April 04, 2017 @02:32PM (#54172077) Homepage

    Unlikely. If you want to actually stop it, the behavior has to be criminalized - you know, like they do for any law that doesn't involve government workers.

    It needs to simply be "Searching an electronic device at the border or anywhere within the US without a warrant shall be a class ___ misdemeanor punishable by a fine of up to $____ and/or up to 1 year in jail. It shall also create a civil cause of action with damages of at least $10,000 per incident, with each device being a separate incident. No government entity shall indemnify against any such liability."

    That's how you actually stop it. It's really not difficult, although I'm sure the border patrol would have a cow. Not that I care what they think.

    • Your wish is granted! [cornell.edu]

      Quoting 18 U.S. Code  242:

      Whoever, under color of any law, ... willfully subjects any person ... to the deprivation of any rights ... protected by the Constitution or laws of the United States ... shall be fined under this title or imprisoned not more than one year, or both....

  • I cross the border several times a year, I've never been asked if I'm even carrying electronic devices, let alone inspect them. I've only been asked about alcohol, weapons, drugs...and fruits & vegetables. I had to pop my trunk once, and they were inspecting everyone's trunks that day.
    • My relatives and I have been randomly selected for having beards. No joke.

      If you're a white clean-shaven affluent-appearing gender-conforming middle-of-life kind of person, then maybe you will never experience this.

    • You are white.

    • They broke the factory seal on the motherboard box in my bag.
      Took the board out of the antistatic bag and pulled on components and inspected the heat sinks..
      Then chucked it onto a table (it bounced)...

      Then they arranged plugs and dildos on the table (Hey, I was visiting a partner :p) and I had the joyful experience of explaining to the young guy doing this what a strap-on harness is for.

      Oh did I not mention that this was don in full view of about 500 passengers waiting in line? :p

  • I once crossed into the US in a tiny crossing, way out in the woods.

    As we were 4 hours into a 12 hours drive, we stepped out of the car. Since we were the only car, all the officers were out, one for each occupant of the car.

    I was wearing a fanny pack, and “my” officer asked me what’s in there. “My money and papers and keys” (back then, we did not need passports to go in the US). But I handed him the pack, and he looks at the wallet, then hits the small change compartment. While he was running his finger through the coin, he made the face that you expect from an old pervert would do while sniffing out used japanese schoolgirl panties. The only thing that wasn’t there were the drooling sounds, but maybe I didn’t hear them because I wasn’t really paying attention for that kind of thing

    These creeps are seriously fucked-up in the head.

  • and the others? rights are rights for everybody... there's a definite smell of fascism and racism coming from the other side of the atlantic ocean
  • Protecting our rights when other Senators don't give a damn.

    I'm sure some slashdotters didn't agree with him on some positions in the past, but I doubt any slashdotters would be upset by this bill, or at least the intentions behind it
  • By requiring a warrant to search Americans' devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans' personal photos and other data.

    Because Americans are of course always innocent. All criminals are dirty furriners.

  • "Bill Would Stop Warrantless Border Device Searches of US Citizens"

    Thanks, Bill! I owe ya one!

  • Also, will this stop them asking for Facebook (etc) credentials, regardless of whether or not you have a Facebook-enabled device on you at the time?

  • I personally sympathize with these arguments, but what do they mean in an era where every "normal" person broadcasts typically private information and video documentation on twitbook and pinface and snapclone, and is streaming photos of their junk to iCloud seconds after taking them? Legal privacy has lost tons of ground in recent decades, but is still somehow so out of step with the cultural rejection of privacy that simply asserting the few remaining rights you have left makes you look like a tinfoil hat

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