Federal Judge Makes History In Holding That Border Searches of Cell Phones Require a Warrant

In a groundbreaking ruling, a district court judge in New York, United States v. Smith (S.D.N.Y. May 11, 2023), declared that a warrant is necessary for cell phone searches at the border, unless there are urgent circumstances. The Electronic Frontier Foundation (EFF) reports: The Ninth Circuit in United States v. Cano (2019) held that a warrant is required for a device search at the border that seeks data other than "digital contraband" such as child pornography. Similarly, the Fourth Circuit in United States v. Aigbekaen (2019) held that a warrant is required for a forensic device search at the border in support of a domestic criminal investigation. These courts and the Smith court were informed by Riley v. California (2014). In that watershed case, the Supreme Court held that the police must get a warrant to search an arrestee's cell phone. [...]

The Smith court's application of Riley's balancing test is nearly identical to the arguments we've made time and time again. The Smith court also cited Cano, in which the Ninth Circuit engaged extensively with EFF's amicus brief even though it didn't go as far as requiring a warrant in all cases. The Smith court acknowledged that no federal appellate court "has gone quite this far (although the Ninth Circuit has come close)."

We're pleased that our arguments are moving through the federal judiciary and finally being embraced. We hope that the Second Circuit affirms this decision and that other courts -- including the Supreme Court -- are courageous enough to follow suit and protect personal privacy.

So they just search for CP

[Pinky's Brain]

They can just search for CP, dump everything they find for a fishing expedition and then do parallel construction to find a kosher way to get evidence.

Nothing burger ruling, if they can force you to unlock the rest hardly matters any more.

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[quonset]

They can just search for CP, dump everything they find for a fishing expedition and then do parallel construction to find a kosher way to get evidence.

Nothing burger ruling, if they can force you to unlock the rest hardly matters any more.

All they need to do is search all [imgur.com] those [imgur.com] priests [imgur.com] who go back and forth across the border if they're looking for CP.

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[sinij]

Exactly. "Reasonable" suspicion is making too little or too much eye contact or some such.

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[gweihir]

That is why, when going over the border of (proto) totalitarian states, you always only carry clean devices. In such countries, the rule of law is not there to protect anybody except the rich and powerful, the occasional case of the judiciary doing some virtue signalling to pretend otherwise (as here) notwithstanding.

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[blitzd]

That is why, when going over the border of (proto) totalitarian states, you always only carry clean devices.

And then you get detained on suspicion of hiding something... because nobody's device can be that clean.

"Something is really wrong here, everyone has a Facebook."

/s

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[Darinbob]

Already, today in the US they can't search your device for child porn if you're not in the "border zone". Ie, in Nebraska that can't stop you and forcibly check your mobile phone. However there's been the looser guideline that the border zone doesn't count, and thatr border zone was NOT just the border crossing and customs, but extended many many miles inland, and it's good for a court to finally push back on this abuse. So rights that exist in Omaha should also exist in San Diego or El Paso.

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[torkus]

They have x miles from the border...10 or 20 maybe? Then they said any international airport or port counts as a border point.

Suddenly most of the population is living "within the border zone"

Yeah...fuck that.

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[JackieBrown]

That is why, when going over the border of (proto) totalitarian states, you always only carry clean devices.

Better yet - just avoid going to these "horrible" countries. They don't want you and you won't get the freedom's you think you deserve.

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[evil_aaronm]

Easy: I don't leave, if I can avoid it. For example, there's a Chinese restaurant just across the border near Buffalo, and we've been going there for decades. Since it's become such a pita to get back into my own country, we don't go anymore. The fascists won that one.

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[CohibaVancouver]

The 4th Amendment generally doesn't apply at a US Customs and Border Protection checkpoint.

If a CBP officer says "unlock and open your suitcase so I can search it" you are required to do so. If you say "no" they can take it from you and force it open.

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[Darinbob]

Yes but that's in custom's office. However there's been a "border zone" concept that this was true even once you're outside the actual border crossing. Ie, this border zone extends north of San Diego. A lot of people pushed for this and defended it in the attempt to push back against illegal immigration even though the constitution affirms the basic rights of everyone on its soil. (Sad that some of these people keep proclaiming the constitution as their holy document despite having never read it.)

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[jonadab]

Right, that's not new either. The fourth amendment has never been interpreted as applying when you are entering the country. There have been searches at entry points into the country, since the late eighteenth century at least, if not longer. Originally they were mainly concerned with smuggling and specifically with tarrif enforcement, since back then there was no Federal income tax, so tarrifs were a critical source of revenue for the Federal government. More recently, drug searches at the border are e

Re:So they just search for CP

[buss_error]

A former employer simply had a phone for you at your destination and advised to NOT travel with a cell (or laptop) at all. The advice was to purchase a "burner" phone if you wanted one during the travel, and to destroy and discard the phone before re-entering the US (and return the laptop to the foreign office after a DBAN wipe). We were told it was because several times it was found that when planting contrived false information on cell phones resulted in federal action sans warrant or cause. Same happened with USPS documents. It was said that internal information wound up in the hands of competitors resulting in loss of opportunity.

I thought at one point they needed to wear the tinfoil shiny side in. Now, I'm not so sure they didn't have the situation nailed. It's one of those situation where, you think "Naw, they're just being stupidly paranoid!" and later, turns up, maybe not.

Re: So they just search for CP

[Plugh]

This is my theory for how so many previously normal people became COVIDiots. Yes the government lied to you about Iraqi WMDs and about spying on you and so on. Then when grifters started saying the government is lying to you about COVID it was easy to believe.

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[pete6677]

Well it was proven a number of times that the government did lie to us about many aspects of Covid, both understating and overstating the dangers of Covid depending on what was convenient at the moment. Although much of it was malicious and had ulterior motives, some of it was just plain old incompetence.

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[AutodidactLabrat]

No. It was shown that many exaggerations by antimaskers antivaxxers turned overwhelmingly safe, reliable recommendations into false persuasion.
100% of the ignorance turned America into the champion per capita death rate nation.

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[pete6677]

LOL compare areas with high rates of masking and vaccinating to places where they didn't really do much of that at all. Overall outcomes were not much different.

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[AutodidactLabrat]

WRONG! Red = dead WORSE per capita (historical) [cdc.gov]

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[AutodidactLabrat]

Even more wrong.Unvaccinated dominate new infections and deaths [cdc.gov]

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[pete6677]

CDC has lied too many times to be considered a credible source. They are for sale to the highest bidder, which happens to be Pfizer.

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[AutodidactLabrat]

Wrong on every single claim. CDC has never lied about Covid. Not once.

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[AutodidactLabrat]

The poison is sold by Faux Noise, who just paid 787 million for similar politically motivated lie.

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[AmiMoJo]

It's kinda funny that "Dirk's Boot And Nuke" has become the gold standard date erasing tool.

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[BobCov]

Can you please go into more detail about what happened involving planting information? Are you saying your company was victimized by American agents planting material on company devices at the border and then using that info for criminal investigation? And what about the USPS documents? What happened there?

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[superwiz]

No, CP was the old standard. The new one is "urgent circumstances." There has to be a hot pursuit or something that they can blame it on. Which means they can't just do it to everyone.

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[dirk]

While this is true, if this holds it at least gives you a path to follow for challenging the search and results. Before this, there was really no way to even challenge the search even after the fact it was completely allowed. At least now, people can challenge and they have to prove at least some suspicion they can prove of CP. Will the judges give them plenty of leeway? Of course they will. But this at least gives some path forward as where before there was none.

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[blahabl]

They can just search for CP, dump everything they find for a fishing expedition and then do parallel construction to find a kosher way to get evidence.

Nothing burger ruling, if they can force you to unlock the rest hardly matters any more.

Just be glad you live in a free country where they even have to bother. In fascist European Union "fruit of the poisonous tree" is not even a topic (except for very very extreme cases, like "admissions" during torture), everything they get on you is fair game.

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[AutodidactLabrat]

That's a lie.

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[Darinbob]

Still need probable cause, they can't just search everything with a lame excuse. Judges already slap wrists for this.
It's more of the same tug of war between law enforcement (we want to do everything) and the courts (you can only do so much).

It is good though that it affirms (if SCOTUS upholds it) that rights apply even at the border. Meaning, rights apply even for people who are foreigners, or in undesirable classes, as long as they're on US soil or territories. I see some who really want a big crackdow

EFF actions

[BrainCoel]

And in addition EFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade. If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision.

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[Anonymous Coward]

Yeah, The EFF seriously lost its way when Mitch Kapor resigned, and Jerry Berman led them astray years ago, turning them into a funded mouthpiece for the telcos. It's nice to see they're recovering.

Is Mike Godwin, the EFF's first lawyer, still spending all his spare time on bondage chat groups, and hiring really busty submissives? I remember the EFF's first few paid employees, it was fun delivering packages there.

"urgent circumstances"

[John Smith 2318]

So, just about anything they care to dream up. The only solution here is simple: do not carry a spyphone. The world works just fine without them.

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[AmiMoJo]

Phones are very useful when travelling, especially if you don't speak the local language. Even in the US, navigating around cities is much easier when you have a mapping application to help you, for example.

Ideally, you should try to make sure your country isn't oppressive and doesn't regularly invade the privacy of tourists and business visitors.

Suspect a device

[NotEmmanuelGoldstein]

... United States v. Cano (2019) held that a warrant is required for a device search ...

That's a long way from United States v. Cotterman (2013), where "the Ninth Circuit [...] held that a manual search of a laptop is “routine” and so the border search exception applies:" This United States v. Smith (2023) case is a district ruling and will be ignored everywhere else. At a federal level, I suspect law-enforcement will argue repeatedly that searching computing devices is "routine".

Law enforcement will 'suspect' a device of holding child pornography, the same as suspecting a car of holding marijuana.

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[dgatwood]

Law enforcement will 'suspect' a device of holding child pornography, the same as suspecting a car of holding marijuana.

The whole concept of searching for child porn at the border is a giant joke. What idiot would smuggle child porn on a laptop when it is so easy to just upload an encrypted disk image to any number of file storage sites and download it when you get home? Nobody in their right minds should carry "digital contraband" across the border unless they have no computer savvy whatsoever, which in this day and age, is likely to be rare. The Internet made the entire concept of carrying data in physical form entirely

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[LazarusQLong]

let's be real here for a moment. I used to have a job that had me traveling across the borders at least 3 times a year for 10 years. In all those border crossings, I was pulled aside for 'extra scrutiny' several times, but in no instance was I separated from my laptop/ipad/smartphone. In none of those instances was any of those devices searched, though in a couple of instances I did have to prove that they would turn on and not just be a case full of explosives. Now, about invasive searches, some TSA ass d

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[Local ID10T]

Manual search vs forensic search.

A manual search is inspecting the device physically -ensuring that it is not concealing drugs/bombs.

A forensic search is inspecting the data.

The case you cited held that a manual search is routine wheras a forensic search is not.

individuals rights...

[dowhileor]

to me the obvious is that individuals, states, cannot be completely trusted to be on their best intentions. both the searchers and searched need to be protected by more than good faith. which is why the federal is so powerful in the us. they knew from the beginning that states (executive?) rights will have to be scaled back and made it easy to do since people if given a choice will likely choose the sate of selfish idiot.....

Revenge

[Opportunist]

Load it with the nastiest furry and hentai porn you could find.

If I suffer, you suffer.

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[gweihir]

So you want to get charged with possession of "obscene" porn and drawn CP? Good luck with that. You may even get aquitted eventually, but after a year or two in an US prison waiting for trial, that hardly matters.

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[Opportunist]

CP? Where? It's a very obviously adult raccoon pissing that deer in the mouth.

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[sinij]

IANAL, but my understanding that even (,)(,) can be declared CP and grounds for pressing charges.

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[gweihir]

That Hentai? Obviously the girls are all underage. At least the border guard sees them in that way and that already is enough.

Never try to provoke authoritarians unless you have enough might to crush them as they universally deserve.

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[JackieBrown]

Never try to provoke authoritarians unless you have enough might to crush them as they universally deserve.

Exactly. Most of us learn this lesson at a young age.
I shit-talked a cop once and now it's "yes sir".
Unless you have some true moral stand to make (and decide whatever abuse of power that is thrown your way is worth that stand), it's best to just be respectful and move one.

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[jonadab]

So, badly drawn, badly-dubbed, low-framerate cartoons of teddy bears being abducted and examined by squid-like space aliens in white labcoats, with the actual points of contact badly pixilated, and the background music is a thirty-second loop of badly played faux-German beer-festival polka, over a constant 2250 Hz drone?

Zero chance this will hold

[hdyoung]

Our current Supreme Court wont even give a US citizen any rights over their own body. You think theyre gonna uphold any rights for a non citizen? From their perspective, non citizens are basically potted plants

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[JackieBrown]

Please bring up abortion on every topic. It's very conductive to every single topic discussed.

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[hdyoung]

I use it as a single example of the current state of the Supreme Court because I don’t want to write a long post every time. A lot of people historically expected the Supreme Court to uphold certain things our society has come to value. Things like “bodily autonomy”, “voting rights”, “civil rights” etc. You know, small unimportant, obscure concepts like that. The problem is, those are basically liberal concepts and our court is now actively hostile to them. So, they

US Citizens only

[ixus2600]

The other question I have. Does this only apply to US citizens, or does it also apply to foreign nationals (visitors to the US)?

Precedent used to mean something

[mark-t]

Since the overturn of Roe V Wade, I honestly couldn't give two shits what any court decides anymore with regards to freedom or liberty anymore.

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[bill_mcgonigle]

The anarchists have been telling us that for two hundred years. Early Spooner almost exactly.

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[gweihir]

Thanks to the moderators for proving my point. The down-mod makes it abysmally clear I am right.

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[buss_error]

Since the overturn of Roe V Wade

I gently point out that the individual right to own weapons is a Scalia decision, and can be wiped out as easily as Dobbs wiped out Roe.
I have to admit to a guilty pleasure in the howls of outrage that causes from the simple optics of "I got my rights, Fuck You!" factor from the right wing. I really shouldn't do it, I know, but while they feel free to dictate medial care to others, but not allow it for themselves, it's a fair enough tool to point out that by claiming power over others, you invariably have t

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[mark-t]

The point of court decisions as precedent is not to create a scenario where prior court decisions are irrevocable, the point of precedent is to make future court decisions predictable.

However, the Roe v Wave overturn, despite not being in the best interests of most Americans today, shows that court decisions are ultimately decided not by what what is necessarily thought of as just at the time, but rather by which political interests have more control over the final decision. Political interests which ar

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[jbmartin6]

Unclear why you say this, there is a long history of the Supreme Court overturning precedent, most famously in Brown v. Board of Education.

No real surprise

[Inglix the Mad]

Someone with money must've complained.

This is why my employer gives us a "blank" (secure erased then newly imaged) laptop and (secure erased) cell phone when we travel internationally. We aren't allowed to save things locally on the laptop or phone, and only use VDI's when traveling internationally. The USA isn't the only country that will try to make you unlock your electronic devices.

Law Enforcement, and their bootlickers, L-O-V-E talking about CP. Why? Because who can argue against searching for that kind of material, even without a warrant? They also know they aren't going to find it in 99.999% of the time they have someone unlock an electronic device. Nope they're just fishing, hoping they find a crime or something else compromising. Heck more than a few times it will be: "Wow, she's hawt. Wonder if there are any nudes on the computers or phones?"

Yes, oftentimes it's that simple. Like all those times you hear about computer techs "accidentally finding" stuff like CP on a computer? Well finding the CP was accidental... but almost every single time they were scouring the device for porn.

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[Inglix the Mad]

For us it's because of contractual requirements to keep client data secure. Take the phone and laptop, won't find anything on it that can compromise a client's trade secrets.

It's about fukkin time.

[Black Parrot]

\subject

Need help to understand

[sentiblue]

Hey guys... I'm quite clueless in this. When a district court judge in NY makes such ruling, does it have effect only in NY or nation wide? If nation wide, can you help me understand the jurisdiction of a district court judge?

Disclaim: I'm only interested in educating myself, not in political aspect. If you're going to reply with political opinion, DON'T!

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[jonadab]

That probably depends whether it's a state court or a Federal court. There are Federal court districts in all fifty states, but there are also state courts in all fifty states. Federal court rulings can be and are cited as precedent nationwide, though of course a Supreme Court ruling is stronger. However, I would imagine that state court rulings would typically only be directly applicable within the state in question, since they would typically be based on state law. Common law being what it is, even ru

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[sentiblue]

Thanks! This helps me tremendously. I have always been well verse only in high tech fields and quite clueless when it comes to laws. I appreciate your spending the time to help me understand more. Have a great day!

digital contraband

[groobly]

Soon enough "disinformation" will be declared to be "digital contraband."

Weird

[zkiwi34]

As in, as immigration is federal, this bloke's saying âoeGo find a federal judge and right quick.â And then thereâ(TM)s the issue of, if a search is thought to be necessary, then detaining the person is required. And from that point it gets⦠funner.

Pepperidge Farms Remembers...

[Locke2005]

I used to have phones with removably SDHC memory! Seems like just swapping memory cards would have been the best way to evade illegal phone searches... I can think of plenty of places to hide an SDHC card.

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[twosat]

That might not work nowadays https://www.indystar.com/story... [indystar.com]

Making history

[BrainCoel]

That's a good idea to make a history on it. I think the judge can become very popular thanks to it. I'm curious if he writes content on his own as I feel always a struggle with content writing. Therefore I use custom papers https://essaylab.com/custom_pa... [essaylab.com] to help me with my writing tasks. Fortunately, I have had only a positive experience, so I can rely on them any time. By the way, I found out that many people use them.