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United States Privacy News

Senators Propose Bill Requiring Warrants To Search Devices at the Border (cnet.com) 179

An anonymous reader shares a report: If you're taking a trip in to or out of the US, border agents currently have free rein to search through your digital devices. Unlike police, agents don't need a warrant to look through your phones, laptops and other electronics. Two US senators are hoping to change that with a bipartisan bill. Sen. Ron Wyden, a Democrat from Oregon, and Sen. Rand Paul, a Republican from Kentucky, on Wednesday introduced the Protecting Data at the Border Act, which would require agents to obtain a warrant before they can search Americans' devices at the border.

The number of electronic searches at the border has spiked in the last four years. In 2018, the Department of Homeland Security conducted more than 33,000 searches on devices, compared with 4,764 searches in 2015. Customs and Border Protection declined to comment. "The border is quickly becoming a rights-free zone for Americans who travel. The government shouldn't be able to review your whole digital life simply because you went on vacation, or had to travel for work," Wyden said in a statement.

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Senators Propose Bill Requiring Warrants To Search Devices at the Border

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  • by JaredOfEuropa ( 526365 ) on Thursday May 23, 2019 @09:58AM (#58641756) Journal

    The border is quickly becoming a rights-free zone for Americans who travel

    What about non-Americans? Should they just suffer any indignity at the hands of the border officers? In most civilized countries, there may be some extra requirements you have to comply with when entering the country, but when it comes to civil rights and due process, both residents and guests are afforded the same protection here.

    • by Anonymous Coward on Thursday May 23, 2019 @10:16AM (#58641852)

      What about non-Americans? Should they just suffer any indignity at the hands of the border officers?

      At present, that seems to be the direction we're heading ... and it's why a lot of non-Americans are simply refusing to travel to the USA.

      The numbers are starting to show it [forbes.com].

      The reality is, given the current state of America, non-Americans are starting to decide not to deal with the whole thing.

      • by rsilvergun ( 571051 ) on Thursday May 23, 2019 @01:31PM (#58643154)
        don't really care. I saw an interview with a pensioner about Brexit where he acknowledged that it would wreck their economy but it was worth it. Of course being a pensioner he was set for the rest of his life...

        Young folk need to get out and vote. I'm not calling them out for not voting (the old folk make it hard, at least in the United States, by keeping polling places as far from University as possible and writing laws to require a drivers license to vote). But the old folk are going to wreck shit if you don't because, well, they're old and they're set economically so they don't care if the world burns.

        My step-mom said it best when she was weaving in and out of traffic and I commented she was gonna get hit: "Let 'em hit me, I'm older and I'm better insured".
        • I wonder if you step-mom got it from the movie, I forgot it's name, or if both got it from the same place.

    • by Anonymous Coward

      Non-Americans are a Constitution-free zone, as are any Americans declared 'enemy combatants' usually via excuses of 'terrorism'. I mean after all, why live like a bad 1980s TV show where you have to nab the villain even after he killed dozens of people to 'bring him to justice' when you can just use your overwatch capabilities and one hit kill him with a hellfire missile along with acceptable civilian casualties (that also exceed the number killed before you made him a priority to 'bring to justice'.)

      But re

    • Re: (Score:2, Informative)

      by jellomizer ( 103300 )

      Have you been paying attention. The Trump Administration uses their executive rights to enforce the laws, to be extremely tough to a point of cruelty to make sure immigration laws is enforced as hard as possible.

      It would be like a traffic cop stopping and arresting you over going 0.01mph past the speed limit for speeding, or doing the same for going 0.01mph below the speed limit for driving too slow. The laws allow such action, however the executive branches in government normally allow leeway to make sur

      • Re: (Score:1, Troll)

        You do realize that this process started under the Obama admin right? If so then I also hope you realize that while the president can and does at time issue direct orders to various executive agencies, they usually don't and most of the operations are handled by the department directory or secretary. Most things only get to the executive's desk if it becomes a major problem. That's true not just in government but also in private industry.

        • by Anonymous Coward

          List of executive orders signed ed by each president

          George Bush 291
          Barack Obama 276
          Donald Trump 110

          https://en.m.wikipedia.org/wiki/List_of_United_States_federal_executive_orders#Consolidated_list_by_President

          • Re: (Score:2, Insightful)

            by Anonymous Coward

            An Anonymous Coward misleadingly stated:

            List of executive orders signed ed by each president

            George Bush 291
            Barack Obama 276
            Donald Trump 110

            Oh, please.

            Bush and Obama both served two full terms. Trump has, thus far, served less than 2.5 years of his first term.

            That puts him on track to substantially exceed the total number of EO's Bush issued, should he somehow win re-election ...

            (Posting as AC only so as not to undo prior upmods in this thread.)

            --

            Check out my novel [amazon.com] ...

        • by Geoffrey.landis ( 926948 ) on Thursday May 23, 2019 @11:47AM (#58642424) Homepage

          You do realize that this process started under the Obama admin right?

          No, it started before that, but it did increase during the Obama administration.

          The relevant court decision is United States v. Arnold (2008): “We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage device at the border.” (There were previous decisions saying that searches were acceptable with probable cause, but I think that's the first one saying reasonable suspicion is NOT needed.)

          Good history here: https://fas.org/sgp/crs/homese... [fas.org]

          If so then I also hope you realize that while the president can and does at time issue direct orders to various executive agencies, they usually don't and most of the operations are handled by the department directory or secretary. Most things only get to the executive's desk if it becomes a major problem. That's true not just in government but also in private industry.

          • Thanks for the context. So technically it started under Bush but we didn't really hear about it until years later.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Have you been paying attention. The Trump Administration uses their executive rights to enforce the laws, to be extremely tough to a point of cruelty to make sure immigration laws is enforced as hard as possible.

        Overrunning the borders of any country is a crime. Liberals seem to like turning a blind eye to those that commit crime (i.e. See Massachusetts DA Rachael Rollins and her refusal to prosecute shoplifters) Presenting yourself at a border crossing and requesting asylum does not get you thrown into what you fuckwits call cages. Sneaking across the border does. Just because you can't find a good paying job in your native land does not automatically burden this country with a requirement to take you in and f

        • The highway I take to work has a 55 MPH speed limit. If you're doing less than 60, you're probably obstructing traffic.

    • by PPH ( 736903 )

      What about non-Americans? Should they just suffer any indignity at the hands of the border officers?

      Consider yourself to be at an advantage. US law does not apply to you unless you attempt to enter the USA*. US law applies to its citizens anywhere in the world.

      *Or do business with a US citizen. Or buy/sell petroleum anywhere in the world.

      • Consider yourself to be at an advantage. US law does not apply to you unless you attempt to enter the USA*.

        Obvious counter-example: Julian Assange.

        Many US laws have extra-territorial reach and apply to non-citizens.

      • What about non-Americans? Should they just suffer any indignity at the hands of the border officers?

        Consider yourself to be at an advantage. US law does not apply to you unless you attempt to enter the USA*. US law applies to its citizens anywhere in the world.

        *Or do business with a US citizen. Or buy/sell petroleum anywhere in the world.

        Americans like to think their laws apply to everyone in the world. It's why so many people even in "allied" western countries are starting to really dislike America.

    • The entire point of having a border checkpoint is so you can question and search people attempting to enter. All this bill is doing is forcing CBP to just let people who can prove they're allowed to enter to enter, without subjecting them to those questions and searches.
      • by dgatwood ( 11270 )

        The entire point of having a border checkpoint is so you can question and search people attempting to enter. All this bill is doing is forcing CBP to just let people who can prove they're allowed to enter to enter, without subjecting them to those questions and searches.

        Nonsense. You can still question them, and you can still physically search them, but under the proposed law, you wouldn't be able to treat them like a suspected terrorist and go through their phone, laptop, etc. without probable cause and due process — you know, like the founding fathers actually intended.

        Besides, I can pretty much guarantee that if a law like this ever gets passed, there will be a FISA-like court that springs up overnight to get quickie warrants for those rare cases where there is p

    • The USA can't force Canada, UK, NZ, Australia, & Israel to change their digital search laws. You realize in those countries all can require you to provide the unlock password for no reason, right? If you refuse, go to jail. Israel will hold you overnight before deporting you, plus they like to check social networking accounts.

      The USA will just keep your stuff for 30-180 days, clone it, and eventually return it, if you don't provide the requested access. I've been tempted to refuse. As a US citizen, I

    • by AHuxley ( 892839 )
      What about non-Americans?

      US courts have long been asked that question. The result is the same. The US gov can ask questions of anyone and look at anything.
      No warrant needed as that would slow down the searches. People have to get to the next flight/their ship/bus/the train has to keep to a "time table"
      Re "Should they just suffer any indignity at the hands of the border officers?"

      Entering another nation is not a given.
      That nation has a duty to protect its own citizens first and enforce its own law
  • Otherwise it will be "you can give us your password now and be on your way, or wait a day or two in the secure zone as we go through the process of asking for a warrant and getting it declined."

    • by TFlan91 ( 2615727 ) on Thursday May 23, 2019 @10:13AM (#58641842)

      The bill already addresses this:

      SEC. 4. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL
      DATA AT THE BORDER.
      (a) STANDARD.—Subject to subsection (b), a Govern
      mental entity may not—
      (1) access the digital contents of any electronic
      equipment belonging to or in the possession of a
      United States person at the border without a valid
      warrant supported by probable cause issued using
      the procedures described in the Federal Rules of
      Criminal Procedure by a court of competent jurisdic
      tion;
      (2) deny entry into or exit from the United
      States by a United States person based on a refusal
      by the United States person to—
      (A) disclose an access credential that
      would enable access to the digital contents of
      electronic equipment or the digital contents of
      an online account;
      (B) provide access to the digital contents
      of electronic equipment or the digital contents
      of an online account; or
      (C) provide online account information; or
      (3) delay entry into or exit from the United
      States by a United States person for longer than the
      period of time, which may not exceed 4 hours, nec
      essary to determine whether the United States per
      son will, in a manner in accordance with subsection
      (c), consensually provide an access credential, ac
      cess, or online account information, as described in
      subparagraphs (A), (B), and (C) of paragraph (2).

      Source: https://www.wyden.senate.gov/i... [senate.gov]

      • (2) deny entry into or exit from the United States by a United States person

        The loophole by which CBP violates the Fourth Amendment is that a 'US Person' is one who has entered the USA and is subject to its laws. People detained at the border pending entry are not yet 'US Persons'. This may vary for US Citizens, as US law applies to them worldwide.

        Also, they may not detain you. But your stuff may have to be impounded, pending that warrant.

        • by Anonymous Coward

          Absolutely false and not a loophole.

          The power to indefinitely detain and search people and properties crossing the border arises from Article I, of the Constitution which gives Congress the authority to both regulate foreign commerce and "lay and collect Taxes, Duties, Imposts and Excises."

          From the very first Congress in 1789, it has been unquestioned that without the border search exception (i.e. border agents can detain and search individuals and cargo without suspicion or deny entry in order to enforce c

      • by eth1 ( 94901 )

        The bill already addresses this:

        SEC. 4. PROCEDURES FOR LAWFUL ACCESS TO DIGITAL
        DATA AT THE BORDER.
        (a) STANDARD.—Subject to subsection (b), a Govern
        mental entity may not— ...
        blah blah ...
        (3) delay entry into or exit from the United
        States by a United States person for longer than the
        period of time, which may not exceed 4 hours, nec
        essary to determine whether the United States per
        son will, in a manner in accordance with subsection
        (c), consensually provide an access credential, ac
        cess, or online account information, as described in
        subparagraphs (A), (B), and (C) of paragraph (2).

        So basically they can still hold you up to get "consent" long enough to ensure you'll miss any connecting flights if you don't "voluntarily" give them what they want...

      • The bill does not 'address this'. You are not being prevented from entering the US because you didn't give permission for the search, you are being denied entry for the same reason they want to do the search. The bill certainly allows the CBP to tell people it will save them a lot of time if they agree, because that is a fact. It will. And the "4 hour" time limit is still about 3 hours and 30 minutes longer than the longest time I've had to wait to get through immigration coming into the US, and about two h
    • Otherwise it will be "you can give us your password now and be on your way, or wait a day or two in the secure zone as we go through the process of asking for a warrant and getting it declined."

      Even under current law, they can not detain a US citizen for refusing to provide a password. They may seize the device, but they can not detain the person just for refusing.

  • by Anonymous Coward

    I read this summary and thought, introduced in the Senate? Bipartisan? Horray! Then I read Wyden and Rand Paul, and my hopes of it passing were crushed.

  • Where and how? (Score:4, Interesting)

    by damn_registrars ( 1103043 ) <damn.registrars@gmail.com> on Thursday May 23, 2019 @10:15AM (#58641850) Homepage Journal
    Not that it is less wrong in certain places, but where does this occur most often, and how? It would be easy to assume it is happening mostly at the southern border, but I can't find information to say if that is the case. Or does it happen more often at airports? Or somewhere else? I've crossed the northern border (on land) a few times over the past several years and they have generally not cared at all about my digital devices.
    • by hjf ( 703092 )

      It happens whenever someone brown-ish tries to enter the country.

      Tall, white people from Holland get free pases for suitcases full of MDMA.

    • I lived in Washington but worked in British Columbia for a couple years, and crossed the border every day. Most of the time they just ask why you're entering and wave you through after seeing your passport or Nexus card. Some of the time they ask you a few more questions. Twice in two years, I was flagged for a more thorough search (once by the Canadian side, once by the U.S. side). They said the computer made these selections at random. I was directed to wait in the customs office while they searched m
    • Not that it is less wrong in certain places, but where does this occur most often, and how? It would be easy to assume it is happening mostly at the southern border, but I can't find information to say if that is the case.

      Michigan: https://www.courthousenews.com... [courthousenews.com]

      Tampa: https://www.courthousenews.com... [courthousenews.com]

      Toronto, JFK Airport, Miami, Los Angeles, and O'Hare airports: https://cpj.org/reports/2018/1... [cpj.org]

      Houston airport: https://www.propublica.org/art... [propublica.org]

  • by Anonymous Coward on Thursday May 23, 2019 @10:16AM (#58641854)

    The fact that this bill is necesary proves the constitution is dead.

    To be clear, the constitution defines the powers and limitations of the federal government and says nothing in regards to alterring those terms based upon where the federal agent is located. The fourth amendment protections should already apply everywhere, yet they don't, and this bill is thus necesary.

    What constitutes the current federal government's organization if not the constitution we are all lead to believe is its foundation?

    • by raymorris ( 2726007 ) on Thursday May 23, 2019 @10:28AM (#58641936) Journal

      > To be clear, the constitution defines the powers and limitations of the federal government

      If Constitution lists the powers of the federal government. Included in that short list are:

      Import and export duties
      Immigration
      Foreign commerce

      Given the powers granted the federal government, looking at the contents of a vehicle someone wants to bring into the country is reasonable. The fourth amendment guards against unreasonable searches. Searching a truck at the border is a reasonable search for the purpose of import and export taxes, immigration enforcement, and regulating foreign commerce.

      From that, we get the general rule that border searches are a reasonable exercise of the federal powers. That actually makes sense, or did make sense. Smartphones are a new technology which requires taking another look at the general rule. The government probably doesn't need to search your phone in order to exercise the powers listed above, so clarification is needed regarding the new technology.

      • This is the first level-headed and well reasoned post I've seen in this thread. If it wasn't for the fact I've already replied elsewhere I'd mod you up.

  • by rea1l1 ( 903073 ) on Thursday May 23, 2019 @10:18AM (#58641874) Journal

    Why do we need this legislation? Is it not redundant?

    The fact that this bill is necesary proves the constitution is dead.

    To be clear, the constitution defines the powers and limitations of the federal government and says nothing in regards to alterring those terms based upon where the federal agent is located. The fourth amendment protections should already apply everywhere, yet they don't, and this bill is thus necesary.

    What constitutes the current federal government's organization if not the constitution we are all lead to believe is its foundation?

    • by iggymanz ( 596061 ) on Thursday May 23, 2019 @10:22AM (#58641888)

      learn a little about the law before shooting off your virtual mouth.

      searches at the border are constitutional and have been ruled such because they are "reasonable". In line with the Fourth Amendment.

      • Re: (Score:3, Interesting)

        by WindBourne ( 631190 )
        in what fashion are searches of a computer reasonable? Once they have turned it on, they know that it does not contain drugs, bombs, etc. They have absolutely ZERO rights or needs to search the data. This is really where a warrant is needed.
      • by mrlinux11 ( 3713713 ) on Thursday May 23, 2019 @10:58AM (#58642146)
        Do a google search for 4th Amendment free zones and you will find they can stop an search anyone within 100 miles of US Border. https : // www.aclu.org/other/constitution-100-mile-border-zone
      • learn a little about the law before shooting off your virtual mouth.
        searches at the border are constitutional and have been ruled such because they are "reasonable". In line with the Fourth Amendment.

        Parent is entitled to his interpretations. If you have a problem with it then address it on merits don't hide behind appeals to authority.

        There is no shortage of legal wizardry nobody except lawyers view as legitimate. For example: civil asset forfeiture, 100 mile constitution free zones from borders. Both completely indefensible concepts and unsurprisingly both have resulted in widespread abuse of power.

        Ultimately legitimacy not laws underwrite government. It's nice to see work to close the gap but as

        • hardly "hiding behind authority" when the Supreme Court rules border searches constitutional. That's how it's done here, there is nothing to argue then.

          • hardly "hiding behind authority" when the Supreme Court rules border searches constitutional.

              That's how it's done here, there is nothing to argue then.

            In the country I live people argue over and disagree with supreme court decisions all the time.

            • sure, you can hate their decisions or disagree... but doesn't change fact that they are the ones that decide what is constitutional or not, so that border searches are by definition constitutional and lawful and legal. that's how it works, what goes on between your ears is irrelevant.

    • The Supreme Court has repeatedly ruled that U.S. Constitutional protections only apply to U.S. soil [wikipedia.org], and that even being in U.S. territories confers fewer rights than being in the U.S. proper. That was the entire reason Bush put a prison camp in Guantanamo Bay. Because it wasn't U.S. soil, it was Cuban soil leased by the U.S. (The SCotUS eventually decided that although it wasn't U.S. soil, the U.S. had functional control over it as if it were U.S. soil, and so the prisoners had Constitutional protection
  • What's the point in searching devices at the border anyway? Noone is going to physically smuggle data across a border, anyone doing anything remotely illegal is just going to cross the border with a blank/innocuous device and then download their data once they've passed the border.

    • by Zmobie ( 2478450 ) on Thursday May 23, 2019 @10:48AM (#58642072)

      They are just using it as an excuse anyway. I've posted about this subject before. Someone high enough at CBP realized that there is no distinction between data searches and physical searches in the current laws governing their powers. As we have seen, most government agencies are perfectly content with going on fishing expeditions into private citizens lives under the guise of 'security and law enforcement.'

      It honestly wouldn't surprise me to see them attempt to argue/implement some type of 'border data search' on anything traversing the network at the border too. They probably haven't thought of it yet and Congress is such a mess they likely won't pass any law stopping it soon. The truly alarming part of a lot of these acts is the fact that clearly enough of certain types of people have reached positions of power/influence within these organizations that have no actual respect for the founding principles of the country. The famous Ben Franklin quote, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety," is quite applicable and just shows that the people in power don't seem to have any respect for those principles.

    • by anegg ( 1390659 )

      What's the point in searching devices at the border anyway? Noone is going to physically smuggle data across a border, anyone doing anything remotely illegal is just going to cross the border with a blank/innocuous device and then download their data once they've passed the border.

      I think that the culture of US law enforcement organizations is to use any/all laws that they can to accomplish what they view as their mission. If current statutes don't distinguish between physical property and goods and virtual/electronic property and goods with respect to searches during border crossings, then border agents will probably tend to include virtual/electronic property and goods as being within their purview. For example, at the fringes of this kind of property/goods there ARE items that ar

    • The point is usually making sure that hispanic and middle-eastern looking people don't feel welcome here. It can also apply to annoying journalists and activists.

    • What's the point in searching devices at the border anyway? Noone is going to physically smuggle data across a border, anyone doing anything remotely illegal is just going to cross the border with a blank/innocuous device and then download their data once they've passed the border.

      Most people aren't as paranoid about data as the average /. reader. In one of the cases mentioned, the Customs Agent looked at the browser history, found a site that he thought might be pr0n, the computer was confiscated, the hard disk removed and subjected to forensic analysis to recover deleted files, and some of the deleted files were determined to be kiddie porn, and the guy arrested.

      Wired has a guide: https://www.wired.com/2017/02/... [wired.com] but I will guarantee that 99.9% of the people taking phones and lap

    • by AHuxley ( 892839 )
      Re "What's the point in searching devices at the border anyway?"
      Many attempts get made to bring back images and movies, support for banned groups, contacts with people in banned groups.
      People travel to nations they say they never did to support banned groups.
      Funds given to banned groups.
      Re " blank/innocuous device"
      People often "always" have their full devices with them. Re "download their data once they've passed the border."
      A generation of very average people always want to be online with the smartph
  • Comment removed based on user account deletion
    • by Zmobie ( 2478450 ) on Thursday May 23, 2019 @10:57AM (#58642134)

      The biggest enemy to the bill is the same as always. The 'tough on crime' and 'we must stop all terrorism' crowd will deride it as neutering law enforcement and opening out borders up (even though these are US citizens...). Rand Paul is never a good barometer for how wide Republican support for a bill will range anyway. He is a bit of a fanatic, though to his credit a consistent fanatic, about a number of principles and the GOP as a whole waxes and wanes on support for certain things much more fluidly. Not to mention he is a bit of an outcast because he actually has enough backbone to buck party leadership regularly. I may not agree with his views, but I can respect certain attributes about him.

      Wyden isn't much better on the democratic side given his penchant for grand standing gestures in legislation. He is constantly creating and introducing idealist bills that he knows will never have a chance. I actually personally like this bill and hope it does pass, but know better than to expect that it has wide bipartisan support on either side based on the sponsors.

      • >"Rand Paul is never a good barometer for how wide Republican support for a bill will range anyway."

        Right you are on this. That is because he is not really a Republican, he is more of a Libertarian running as a Republican.

        >"He is a bit of a fanatic, though to his credit a consistent fanatic, about a number of principles"

        He is not a fanatic, he is just principled and uncorrupted. Something very hard to find in politicians.

        >"Not to mention he is a bit of an outcast because he actually has enough ba

  • Anyone who even remotely has anything to hide comes to the country with a clean system and transports any required data via an encrypted line in should the need arise.

    If my computers contain anything when I travel, it's usually gifts for the hard working security personnel. I feel they're entitled to get to see some of my work. Hopefully on an airgapped system, but hey...

    • by AHuxley ( 892839 )
      Re "Anyone who even remotely has anything to hide comes to the country with a clean system and transports any required data via an encrypted line in should the need arise."
      Many average and below average people always have they smart phone with them.
      With a full list of people they communicate with and their support for banned groups.
      Their funding of banned groups.
      Images of them at cult/faith/political/funding events supporting banned groups.
      Why? They are part of that way of life and its on their smart
  • by WindBourne ( 631190 ) on Thursday May 23, 2019 @10:44AM (#58642038) Journal
    I have no issues with ICE doing a turn-on of the equipment to make sure that it is what they claim, but, WTF is ICE doing SEARCHING in our stuff?

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