Courts Close the Loophole Letting the Feds Search Your Phone At the Border (reason.com) 46
On Wednesday, Judge Nina Morrison ruled that cellphone searches at the border are "nonroutine" and require probable cause and a warrant, likening them to more invasive searches due to their heavy privacy impact. As reported by Reason, this decision closes the loophole in the Fourth Amendment's protection against unreasonable searches and seizures, which Customs and Border Protection (CBP) agents have exploited. Courts have previously ruled that the government has the right to conduct routine warrantless searches for contraband at the border. From the report: Although the interests of stopping contraband are "undoubtedly served when the government searches the luggage or pockets of a person crossing the border carrying objects that can only be introduced to this country by being physically moved across its borders, the extent to which those interests are served when the government searches data stored on a person's cell phone is far less clear," the judge declared. Morrison noted that "reviewing the information in a person's cell phone is the best approximation government officials have for mindreading," so searching through cellphone data has an even heavier privacy impact than rummaging through physical possessions. Therefore, the court ruled, a cellphone search at the border requires both probable cause and a warrant. Morrison did not distinguish between scanning a phone's contents with special software and manually flipping through it.
And in a victory for journalists, the judge specifically acknowledged the First Amendment implications of cellphone searches too. She cited reporting by The Intercept and VICE about CPB searching journalists' cellphones "based on these journalists' ongoing coverage of politically sensitive issues" and warned that those phone searches could put confidential sources at risk. Wednesday's ruling adds to a stream of cases restricting the feds' ability to search travelers' electronics. The 4th and 9th Circuits, which cover the mid-Atlantic and Western states, have ruled that border police need at least "reasonable suspicion" of a crime to search cellphones. Last year, a judge in the Southern District of New York also ruled (PDF) that the government "may not copy and search an American citizen's cell phone at the border without a warrant absent exigent circumstances."
And in a victory for journalists, the judge specifically acknowledged the First Amendment implications of cellphone searches too. She cited reporting by The Intercept and VICE about CPB searching journalists' cellphones "based on these journalists' ongoing coverage of politically sensitive issues" and warned that those phone searches could put confidential sources at risk. Wednesday's ruling adds to a stream of cases restricting the feds' ability to search travelers' electronics. The 4th and 9th Circuits, which cover the mid-Atlantic and Western states, have ruled that border police need at least "reasonable suspicion" of a crime to search cellphones. Last year, a judge in the Southern District of New York also ruled (PDF) that the government "may not copy and search an American citizen's cell phone at the border without a warrant absent exigent circumstances."
It will be overturned (Score:2, Funny)
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Absolutely. This is a New York Left wing judge.
If there is one thing I have learned is that a court decision on some policy means nothing at all and I'm tired of news reporting that something or other has been ruled as something or other. It means nothing and never has any effect whatsoever on the organizations violating the constitution. Report news when these agencies actually change their polices so I can get my camera to take pictures of the flying pigs.
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Report news when these agencies actually change their polices so I can get my camera to take pictures of the flying pigs.
CBP will just confiscate your pictures of the flying pigs.
Re:It will be overturned (Score:4, Insightful)
Yes, Roberts and Thomas will both continue to expand the power of government over the people. The complete opposite of the original intent of the Constitution.
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Ah yes, the party of small government.
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coming from an anonymous coward, no less. care to put a name against that slur? or are you a snowflake like all the rest?
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Article 1, Section 2, Clause 3.
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we all make mistakes. good thing our founding documents are malleable.
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It wasn't a mistake. It was a compromise.
They were wise enough not to let "perfect" stand in the way of "good enough".
Re: It will be overturned (Score:2)
It is just a ruling at a district court (E.D.N.Y.). The case is almost certainly going to be appealed, since it is the government's case and they don't care about the attorney fees.
Needs to have more case law (Score:5, Informative)
This is a good decision, but being a single district court, it is not yet generally applicable.
The only way this would become a common rule is if this case, or similar, makes its way to the circuit court and then to the Supreme Court, and all decide likewise.
I suspect that the government agencies are not interested in taking this case further up (on an off chance it make be decided not in their favor, though with the current composition of the Supreme Court I think it's a very low risk). So, the case will remain a local oddity, though it likely applies now in principle to anyone entering the US through JFK (or anywhere within that court's jurisdiction, but that's probably only JFK atm).
Re:Needs to have more case law (Score:5, Insightful)
>"the current Supreme Court has shown repeatedly it doesn't let precedent get in the way of a political decision."
A precedent doesn't settle interpretation forever. If that were the case, we would still have some really, really bad interpretations from a long time ago persisting to this day. Precedent is a convenient default starting point and a shortcut to not have to re-examine the same thing over and over again. Without it, courts would be gridlocked beyond imagination. That doesn't mean bad decisions shouldn't be re-examined, which is what has happened.
>"More case law wouldn't help there."
Actually, it probably would. Having different courts examining and hearing different but similar cases, with different evidence, arguments, situations, examples, and presentations helps to flesh-out and fine-tune the overall picture. The SCOTUS regularly refuses to hear things or kicks stuff back down with only partial direction to see how things evolve.
Re:Needs to have more case law: (Score:1)
Here is EFF guide to Border Patrol and electronic devices.
https://www.eff.org/document/e... [eff.org]
Note: the BO can and will clone your device, with the intent of retaining the mirror. If they cant decrypt it today, they can always try again in the future.
We need a LOT more case law to close this down. I guess not as bad as forcibly putting an agent to live in your house w/o consent (Quartering Act) but not what the constitution had in mind, either.
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Precedent is a convenient default starting point
This is a gross understatement, precedent is the foundation for our legal system. It's the only way you have to know whether you're committing a crime.
I know that the constitution thumpers like to think that the constitution, and the rest of the body of our written law, is the real foundation for our legal system. But this always comes with the unstated presumption that their own interpretation of the constitution is the one true incontestable interpretation. In reality, it's precedent which establishes
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There's effectively no difference between making a new law and changing the legal precedent for an existing one, and both things need to be given due consideration with appropriate checks.
The difference is WHO is making the law. Laws should be made by the legislature, not the courts -this is the separation of powers that makes up our system of government.
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>"This is a gross understatement, precedent is the foundation for our legal system. It's the only way you have to know whether you're committing a crime."
I was referring to the starting point for future cases. My response was to "ChatHaunt"'s implying that court's hands are tied by precedent, and I was pointing out that is simply not true. It is a starting point, not an absolute. Obviously prescient is what people count on to know the past/current interpretations. It is very important. But it is not
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Congress should be the ones making most of the Federal laws, not massive, unelected bureaucracies.
Uh huh. Overturning chevron takes regulatory decision making away from unelected regulators, and puts it on to judges. Most of whom are unelected. And the decision to do this was made unilaterally by unelected judges on the supreme court.
And, while we're here, let's be clear about what they did: the supreme court took away power from our elected representatives in congress. Congress previously had the ability to delegate technical decision making to their appointed experts in regulatory agencies. Now con
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>"Congress previously had the ability to delegate technical decision making to their appointed experts in regulatory agencies."
And they still do. But they have to better define the scope and be more involved, not just set up some beast decades ago and then wash their hands of things so they can claim they have "no control" and not make any difficult decisions that might prevent them from being elected/re-elected.
>"Now congress can go through the motions, but the unelected judges have decided that the
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congress can then pass additional laws and direction to better define what wasn't defined or what was poorly defined
Congress has always had the option to do that, and has exercised that option when they feel appropriate. This is why we don't have privacy on the internet, for example. Congress forbade that in 2017.
I'm not clear on how you're double-thinking your way around this. You seem to think that courts are special somehow, immune to bureaucratic overreach, even though that's exactly what you've just seen. Congress appoints regulators. Some of those are legal regulators, we call them judges, and they manage instru
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A precedent doesn't settle interpretation forever. If that were the case, we would still have some really, really bad interpretations from a long time ago persisting to this day.
It is supposed to do just that. Courts do not make law. They rule on interpretations of legal matters under dispute -but once decided, the matter is settled:
The solution to the problem of bad-old laws is to pass new-updated laws
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The real problem is that borders are lawless places. There are laws in theory, but when you have a deadline to get on that plane, when you just landed and are faced with either being sent back and losing your entire trip or just letting the border agent look at your stuff...
If you are coming home you are in a much stronger position, because you have an absolute right to be there as a citizen.
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If you are coming home you are in a much stronger position, because you have an absolute right to be there as a citizen.
I got "caught out" by a fuckwit of a border guard at the channel tunnel on the way home who was convinced he'd caught me in a lie because he was too ignorant to understand that I was telling the truth. It was 4am and he questioned me for ages. I ended up figuring out what his damage was and had to deceive him to be let back into the country. Technically I didn't lie, I took a a piece of tr
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I had to get as far as calling my solicitor once.
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I had to get as far as calling my solicitor once.
I was a postdoc at the time, not a particularly well paid job, so I didn't have a solicitor.
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I'm glad that this worked for you. I'm a big fan of the Father Brown mystery series, and I've noticed that while the constabulary informs you of your right to remain silent, and that if you say anything it can be used against you, that's all they tell you; there's nothing about a right to retain a solicitor. I've often wondered what happens if somebody does try that. Thanx!
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It's worse than that in the UK. They say that if you don't answer questions when asked, the jury can make inferences if you answer them later and want to rely on those answers in court. There is no right to silence.
Of course you can probably argue that you didn't want to say anything without legal representation present, but it's down to the jury if they believe you.
Anyway, it wasn't like that. Just made the call and they suddenly decided that they didn't need to ask more questions before I even got past th
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"You are not obliged to say anything. If you do decided to speak, anything you say will be taken down and can be used against you in court."
And that's all. Nothing is said about a right to counsel, although Father Brown is generally allowed to speak to the suspect in private as a spiritual advisor, and whatever is said is considered to be under the Seal of the Confessional, but that may not hold in Real Life.
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Old TV series maybe. The modern version, which I think it getting on for 20 years old now, is:
"You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
So basically if they ask you where you were at a particular time, and you refuse to answer but later give an alibi, the prosecution can argue that your silence indicates you needed time to fabricate it. They can ask why you d
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Yes but also, the jury can do more or less whatever it wants regardless of what the law says.
What happens in the jury room is never revealed. If the jury did or didn't take into account silence regardless of whether it's protected, one would never know.
In fact there's even a commemoration of a jury refusing to obey a judges instructions to find someone guilty up in the old bailey.
Also for some reason you are presumed an idiot asks unable to make your own decisions so if a solicitor tells you to stay silent,
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My experience of the Channel Tunnel security was a few decades ago. I had been doing a weekly commute (on a normal airline) between the UK and Italy and had noticed that I was getting pulled aside for extra security a little more often than usual.
Then, with my family, we set off to drive from the UK to Italy, using the Channel Tunnel. We were pulled aside for the extra security check and they opened up the boot of the car and wiped over everything for the explosives check. While the explosives check was run
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That's the kind of nonsensical question I'd expect from British security.
Taxi drivers with the knowledge are obviously stand up chaps. Everyone else is suspicious! It's also delightfully ambiguous. What qualifies as near? Got the occasional driver anything over 10 minutes isn't near, for the seasoned road warrior, 2 hours is near.
Also would catch people like my brother who is guilty of an inexplicably bad sense of direction and corresponding geographic knowledge.
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Better her than me.
Won't make a difference... (Score:2)
CBP and the other agencies will just ignore the courts ruling and keep doing what they are doing. And even if you were somehow able to take CBP and the other agencies to court and win, that will have no impact on what they do to everyone else.