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The Courts Privacy United States

Woman Sues US Border Agents Over Seized iPhone (bbc.com) 277

An American woman who had her phone seized by border agents as she returned home to the United States is suing the country's border protection agency. Bob the Super Hamste shares a report: Rejhane Lazoja was stopped at Newark airport, New Jersey, after returning from a trip to Switzerland in February. Her iPhone was seized by agents after she refused to unlock it for them. The lawsuit alleges that border agents took a copy of the data on her smartphone and failed to say whether it had been deleted. According to legal documents, US Customs and Border Protection (CBP) kept the phone for more than 120 days before returning it to Ms Lazoja, who is a Muslim woman and wears a hijab. [...] "Neither was there probable cause, nor a warrant [to search the phone]. Therefore, the search and seizure of Ms Lazoja's property violated her rights under the Fourth Amendment," the filing says.
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Woman Sues US Border Agents Over Seized iPhone

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  • meh (Score:5, Insightful)

    by zlives ( 2009072 ) on Friday August 24, 2018 @12:34PM (#57187356)

    her lawyer should have told her that the border agents have that authority... as bad as it sounds...
    probably should wipe phone before travel as a privacy measure. delete pics and texts... probably better to use a travel phone with nothing on it.
    its retarded... but we live in retarded times.

    • Re: meh (Score:5, Interesting)

      by duvel ( 173522 ) on Friday August 24, 2018 @12:42PM (#57187416) Homepage

      That's actually company policy where I work. When traveling to the US, we keep our normal phones at home and we get a sort of burner phone from our company to take on the trip. It's basically empty except for a few emergency phone contact numbers.

    • Re:meh (Score:4, Interesting)

      by bobbied ( 2522392 ) on Friday August 24, 2018 @12:45PM (#57187434)

      her lawyer should have told her that the border agents have that authority... as bad as it sounds... probably should wipe phone before travel as a privacy measure. delete pics and texts... probably better to use a travel phone with nothing on it. its retarded... but we live in retarded times.

      Yup.... Don't bring anything in to the country if you don't want to risk it getting inspected. I'd take a burner cell anyway, something prepaid and cheap, overseas. Just forward your local calls to the burner and leave your normal phone safely at home. Same with laptops and such. Don't take them, or wipe them clean before you do.

    • Re:meh (Score:5, Informative)

      by GrumpySteen ( 1250194 ) on Friday August 24, 2018 @12:56PM (#57187568)

      her lawyer should have told her that the border agents have that authority... as bad as it sounds...

      That's debatable. Customs and Border Protection decided for themselves that they had the authority to search cell phones without a warrant, but that's being challenged in court [reuters.com].

      The judge brought up the the similarity to a 2014 case where the Supreme Court held that police have to obtain a warrant to search a cellphone and refused to dismiss the case, so there's a reasonable chance of justice prevailing.

      • Exactly. You have the right to be secure in your person and papers against warrantless search. Now that more and more of your papers are on your cell phone, which you being with you, doesn't mean you give up that at the border.

        Searching stuff for contraband at the border does not imply searching your papers. If The People move their papers into their personal electronics they carry everywhere, that drags 4th Amendment protection with it.

        This lawsuit isn't about what is. It is about what should be, in th

        • by anegg ( 1390659 )
          Contraband could be present in your papers... for example, if you are importing child pornography a search of your papers would be required to find that pornography. I'm just playing devil's advocate here; I'm personally of the opinion that searching mobile phones or laptops belonging to citizens at the border should be off-limits to the border guards (without a warrant), and extending a search of such devices at the border to remote electronic services made accessible by the device search should be right
          • by sjames ( 1099 )

            Sure, if the authorities had the unlimited right to search anything at any time, they'd probably catch people sooner if they break the law. Of course, if everyone was locked up at night and wore an ankle bracelet when they were let out to go to work in the morning, we could also cut crime way down.

            But that's not the way the U.S. is supposed to work.

    • If a border agent said he wants unlimited access to my phone, I'd tell him to fuck off.

      Why?

      For example, let's say my phone contains the data I need to access and move my bank account. What would prevent the border agent from using this data to access my account and steal my money? Nothing.

      Or imagine that I'm carrying important documents for my company that although they are perfectly harmless to national security, my competitors would love to get their hands on them. What would prevent the border gua
      • by zlives ( 2009072 )

        i will address the second question as i am not sure what you could have to access your bank that you cannot without the phone.

        "carrying important documents for my company"..
        remove the encrypted repository of your company data and then re-provision your device after crossing the border. that is if you carry information that can be a target of nationstate level scrutiny.

        • I'ts just a example, duh... If you and the others who also commented have such difficulty in separating example from the literal, let's say that even if you do not have "national secrets" on your cell phone or "information about terrorist cells", you will still have a lot of information that a rogue cop can use to hurt and rob you. And do not be fooled by the arrogant comments that say "so do not just put data on the cell phone" because the usefulness of a modern cell phone is exactly that you can carry thi
    • Back before phones, this is like carrying a stack of self nudy picks and possibly all your financial info in your luggage. Smart people would think twice about that. Phones have made people dumb.
    • her lawyer should have told her that the border agents have that authority... as bad as it sounds...

      Are you talking about seizing her phone? Or about keeping a copy of her phone data indefinitely?

      • by zlives ( 2009072 )

        does she actually know they kept a copy (they probably did) and they can justify it any which way they want. at the border before you cross/are permitted by border security... technically you are not in US and do not have the full citizen rights.
        what is even more interesting that in a foreign country this same government will fight for your rights from this same persecution by foreign powers.

        • by Uberbah ( 647458 )

          technically you are not in US and do not have the full citizen rights

          So the government is free to arrest you without probable cause, hold you without an attorney, and beat a confession out of you if they feel like it? As long as you are in this supposed Constitution-free zone that isn't actually mentioned in the Constitution....

        • technically you are not in US and do not have the full citizen rights.

          You may be right, in which case, as a US citizen, I would want an actual US citizen who's had their phone confiscated to sue the US to find out how far the rabbit hole goes.

          what is even more interesting that in a foreign country this same government will fight for your rights from this same persecution by foreign powers.

          This remains to be seen and entirely depends on the foreign government in question.

          If we're talking Iran, sure, but Saudi Arabia, certainly not.

    • by imidan ( 559239 )

      her lawyer should have told her that the border agents have that authority...

      Why? Who gave them that authority? Regardless of what border agents say, I don't believe they should be able to inspect my phone when I cross the border. I don't believe they should be able to operate in a 100-mile 'border zone' that they apparently invented themselves. We should challenge them on these things. We shouldn't just sit by while the creeping authoritarian police state takes over.

  • by mejustme ( 900516 ) on Friday August 24, 2018 @12:35PM (#57187370)

    The land of the free!

    (Some restrictions apply. See insert for details.)

    • I wonder how many pages of restriction I must read to be in the land of the free?
      • It used to only be a few lines, starting with:

        "Not like the brazen giant of Greek fame,
        With conquering limbs astride from land to land;"

    • by hey! ( 33014 )

      Discontinue use if you experience an erection lasting than four hours...

  • by bobbied ( 2522392 ) on Friday August 24, 2018 @12:39PM (#57187404)

    So the question boils down to this. Can Border Agents search you as you enter the USA or not? Does that include your phone and other personal effects?

    On one hand, we have the 4th amendment which prohibits warrantless searches without legal review. On the other hand, we have the clear need to secure the border, which requires some level of inspection of persons and the things they are carrying.

    The whole argument about the content that might or might not have been on the phone is moot regardless of her religious views. If the data from the phone has been deleted or not is also moot. I also doesn't matter how she was dressed. That stuff is just thrown in for PR purposes, as she's trying to claim she was profiled.

    My guess is the courts will hold it was legal to inspect the phone, demanding she unlock it and confiscate it when she refused. But that begs the question about it this is really how we want to do things.... I'm not so sure.

    • by vux984 ( 928602 ) on Friday August 24, 2018 @01:21PM (#57187736)

      " On the other hand, we have the clear need to secure the border, which requires some level of inspection of persons and the things they are carrying. "

      There is simply nothing on the phone that could be illegal enough to warrant seizure like this though; in the sense that border control should be concerned about it.

      It's ones and zeroes. It's not produce or livestock that might need to be quarantined, its not radioactive or a bomb. Its not goods which need customs, duties or tarrifs levied.

      Yes, it might contain terrorist plots, or child porn, or something bad; but that's true of every single phone in the country -- if there is a legitimate suspicion of that, just like for everyone else -- get a damned warrant, and by all means arrest and search. They've got all the airline reservation data so there are hours of lead time before any actual suspect arrives at the airport.

      Beyond that, it's simply not something that really needs to be the concern of customs and border patrol, with carte blanche authority to confiscate, copy, or rummage through. Especially given that ANYTHING that can be smuggled in as a data on a smart phone can be trivially transmitted accross the border completely encrypted via the internet, terrestrial radio, satellite, flashes of light from a boat in international waters, stenography in cat videos on youtube.

      • by Zmobie ( 2478450 )

        Beyond that, it's simply not something that really needs to be the concern of customs and border patrol, with carte blanche authority to confiscate, copy, or rummage through. Especially given that ANYTHING that can be smuggled in as a data on a smart phone can be trivially transmitted accross the border completely encrypted via the internet, terrestrial radio, satellite, flashes of light from a boat in international waters, stenography in cat videos on youtube.

        I think this is the crux of it all. They are basically trying to apply the logic, "we search other stuff at the border so here is an opportunity to search data too!" When this shit could be EASILY circumvented by anyone trying to do anything nefarious. It then becomes just a blatant invasion of privacy on US citizens. They are not transmitting physical fucking goods that could do any damage or be subject to certain restrictions. This is nothing but data that is legally allowed to freely pass via electro

        • by laird ( 2705 )

          Exactly. Anyone who wants to hide criminal activity can easily do so by keeping it on an internet service instead of on a phone, and there's nothing that border patrol can do to prevent that. Searching phones for (for example) social media posts disagreeing with the government isn't about security, it's about intimidation, trying to scare people into giving up their civil rights because they're inconvenient to people in power. That's not how the US is supposed to work.

    • by anegg ( 1390659 )
      I believe the right to search people, including citizens, at the border is fairly well-established. But as you mention and some others have pointed out in more detail, whether or not that extends to information on a phone, and beyond that to information services that may be made accessible by the search of the phone, is a debatable question currently being worked out through the court system.
    • On the other hand, we have the clear need to secure the border, which requires some level of inspection of persons and the things they are carrying.

      Searching for illegal and/or dangerous objects, yes. Searching someone's private data? I don't think so.

    • by sjames ( 1099 )

      Here's a serious question. If we grant for the sake of argument an absolute right to search to make sure no contraband is brought in, wouldn't that be satisfied completely (with respect to the phone) if you perform a factory wipe? Poof, if there was any contraband, it's gone now, definitely no contraband entering the country there.

  • by Solandri ( 704621 ) on Friday August 24, 2018 @12:45PM (#57187428)

    "Neither was there probable cause, nor a warrant [to search the phone]. Therefore, the search and seizure of Ms Lazoja's property violated her rights under the Fourth Amendment,"

    CBP does these seizures under the legal rationale that when you are entering the U.S., you are initially outside U.S. soil, and thus Constitutional protections do not apply. The Supreme Court has repeatedly ruled that U.S. law does not apply outside U.S. soil (nor should you want it to - that would give the CIA free reign to enforce U.S. law in other countries). That's the whole reason Bush put a prison in Guantanamo Bay. Because while it's a U.S. base, it's not on U.S. soil. It's on Cuban soil. And by holding prisoners there, he hoped to deny them protections provided by the U.S. Constitution (which the Supreme Court has ruled applies even to illegal aliens if they're on U.S. soil).

    Unless/until the Supreme Court rules that U.S. law applies to people at U.S. border checkpoints but have not yet been admitted to the U.S., this stuff will continue. Business travelers ferrying sensitive information in/out of the U.S. that they wish to keep out of the hands of the government typically wipe their devices clean. Then once they're out of the U.S., connect to their company's network via a VPN and restore backups of their devices. Repeat the process in reverse when entering the U.S. Connect to to their company via VPN, create a backup of their devices, then wipe their devices before going through customs. Restore from the backup once they're in the U.S. Any smart terrorist is going to use the same procedure, so I don't know what's really gained by all these searches and seizures. I guess they keep the dumb terrorists in check, but at the cost of inconveniencing hundreds of millions of travelers and leaving them feeling their privacy has been violated.

    • by chill ( 34294 ) on Friday August 24, 2018 @12:54PM (#57187546) Journal

      You're missing one critical element -- and so is the damn story -- whether or not she is a U.S. citizen. The protections of the Constitution *do* apply to U.S. citizens even when outside the country, when applied to actions of the U.S. government. Gitmo's logic only works because the prisoners are "enemy combatants" and not U.S. citizens.

      • As other stories [theregister.co.uk] point out, she is an American citizen. And as an American citizen, she cannot be denied entry to the United States. Border patrol's role in searching a citizen when crossing the border is only to determine if you are carrying contraband or illegal goods. As a citizen you have an inherent right to enter the country. Given that the iPhone seized is legally sold in the US, the only reason to seize it is if they had reason to suspect that the data in it was illegal in some form, and for that th
      • by nnet ( 20306 )
        Where does the Constitution state it applies outside the US, not on US soil?
        • by chill ( 34294 )

          It is implied, and the SCOTUS has ruled on it definitively in Reid v Covert (1956).

          Justice Hugo Black, author of the majority opinion, sums it up by saying

          At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.

          https://www.law.cornell.edu/supremecourt/text/354/1 [cornell.edu]

      • by laird ( 2705 )

        Gitmo is even more insidious. US citizens have legal rights, and so do prisoners. In Gitmo they pretend that prisoners aren't prisoners, but are an invented new label 'enemy combatants' , so that they can pretend that these prisoners don't have the legal protections by the Geneva Conventions, so no laws at all constrain their behavior. This is moronic, because it legitimizes other countries using the same dodge to illegally torture captured Americans. And, of course, US law still applies to the people doing

    • by jythie ( 914043 )
      Unfortunately courts have increasingly been oking this stuff even within the US as long as you are within 100 miles of the border and traveling with the state.
    • The Supreme Court has repeatedly ruled that U.S. law does not apply outside U.S. soil

      Not so fast there, Sparky.

      Try telling US citizens residing overseas that US law does not apply and they no longer have to pay taxes to the US government (hint: it does and they do, subject to customary offsets for taxes paid in the nation where the income was earned)

      Also try telling that to US citizens abroad who engage in what is considered human trafficking by US standards:

      From Wikipedia [wikipedia.org]:

      The original TVPA of 2000 has been reauthorized three times, the most recent being the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. These reauthorizations have clarified definitions of trafficking and forced labor in order both to aid in prosecution of traffickers and to aid the victims of trafficking. The reauthorization versions have also required the federal government to terminate all contracts with overseas contractors involved in human trafficking or forced labor. Extraterritoriality jurisdiction was also extended to cover all U.S. nationals and permanent residents who are living overseas.[75]

      • by PPH ( 736903 )

        Try telling US citizens residing overseas that US law does not apply

        Try telling foreign financial institutions that US Law [wikipedia.org] does not apply to them.

        You might think that Lincoln freed the slaves. But you still belong to this country. And in much the same way that your predecessors were returned [wikipedia.org] to their masters regardless of their resident states laws, we still can't outrun our masters.

    • The Supreme Court has repeatedly ruled that U.S. law does not apply outside U.S. soil (nor should you want it to - that would give the CIA free reign to enforce U.S. law in other countries).

      There are many problems with that position, but I'll covert just one:

      U.S. law does not apply outside of the U.S. borders, but neither does U.S. jurisdiction (and U.S. law only applies where the U.S. has jurisdiction). The U.S. does not have any legal authority outside of its jurisdiction. And inside U.S. jurisdiction, all Constitutional protections apply.

    • "CBP does these seizures under the legal rationale that when you are entering the U.S., you are initially outside U.S. soil, and thus Constitutional protections do not apply."

      That is an argument that could backfire. For example, if they are outside the U.S. then under what law are they operating? Do the U.S. courts have jurisdiction? It is more likely that it hinges on the word unreasonable. It is totally reasonable to search and seize on the border. Bloody silly not too.

      • by Cederic ( 9623 )

        For example, if they are outside the U.S. then under what law are they operating?

        They're not outside the US. The person they're violating is.

        Whether the finger they just inserted leaves the US when it enters the body of the person being searched might be an interesting court case.

  • She's not suing CBP. That's pretty stupid since case law says she'd lose under all sorts of "protecting America" style laws.

    She's filed a Rule 41(g) Motion instead, or "Motion to Return Property".

    In other words, she's basically seeking to have CBP tu "return" all the data they collected from her phone - to not only destroy the images that were created, but any portions thereof, plus to have 3rd parties who many have accessed said image for any reason to again delete that data they may have collected.

    Even more, she wants information on what happened to the data, including information on who it may have been provided to for what purposes and such (presumably also to verify that they too have destroyed/returned the data)/

    If anything, it's probably a more unique case to go through the courts with and one where she may succeed - it wasn't necessarily wrong to collect the data, but now she's ordering its return and justification for keeping that data. And by "return", legally it means "full deletion" (remember the Waymo vs. Uber? Waymo wanted the "return" of the data which really meant the data was given back and destroyed).

    More Details: https://arstechnica.com/tech-p... [arstechnica.com]

    • by Dan667 ( 564390 )
      I disagree. It was wrong to collect the data. An American should not be treated like a criminal when they come back home.
  • 1) Encrypt your notebook / computers with something like VeraCrypt and ALWAYS make a hidden partition.
    2) Make sure to leave the visible OS squeaky clean and sanitized.
    3) Backup your phone to the hidden partition.
    4) Wipe your phone.
    5) Keep your phone unlocked and open.
    6) Gladly pass it over for cloning as it will be empty.
    7) IF they ask to search your notebook, don't worry you have a hidden encrypted partition.
    8) Once they let you pass, restore your phone.
    9) Laugh about how this will work every singl
  • Allow multiple unlock passwords / patterns. Each one would do something different. Of course there's still the one to unlock the phone. The others would do one of the following:

    * Unlock the phone and start in a sandboxed environment that looked like the real one but contained fake user data. Maybe show initial screen like "Congratulations on the purchase of your new XXXX phone! Let's get started personalizing it!!"
    * Display a message like "Internal battery short detected. This device is being hal

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