What I don't understand, and perhaps I'm trying to apply logic to things that are outside of it :
The ostensible reason the border officers have these powers is to protect the country. We don't want undesirable types allowed in (let's defer the fun of defining the undesirable types:).
But... This feels like "real time process". You let somebody in or you don't. How does confiscating the phone and keeping it for five months aid in this? Is the assumption that any evil deed would take 6 months to execute? And that if we discovered something bad on the phone, five months later we'd have an easy time catching the owner?
Basically,in which twilight universe is searching a phone off line for months part of border security prerogatives?? Is it not obvious to everybody involved that this search is for purposes, good bad or ugly, other than border protection? How is this not even addressed in any of these articles or rulings?
It's even sillier than that, because the point of searching something at the border is to identify contraband. Drugs or explosives or invasive plants.
The border is not a chokepoint for information traveling between countries -- anyone who wants to transfer information internationally can just use the internet. So it makes no sense for the border to have any less strict of a warrant requirement for the information content of a device than there is anywhere else.
The legal theory is that the information on the device could be contraband. Indeed, some people have been caught and prosecuted for bringing devices containing child pornography (or adult pornography officials decided must be child pornography[0]) across borders even in the internet era.
I do think the law should be updated, but I imagine it being a non-starter politically right now.
> The legal theory is that the information on the device could be contraband.
If you have a kilo of heroin you want to get from Mexico to Los Angeles, you cannot get it there without physically crossing the US border.
You could be standing in the center of Nebraska, the only triply-landlocked state in the US and not with 100 miles of any border, and directly transfer arbitrary information via an encrypted connection from the International Space Station in orbit over the Indian Ocean on the other side of the planet.
The point is that there is nothing special about physical proximity to the border with respect to information.
Furthermore, the very entrance of physical contraband can be argued to cause damage to the interests of the country or the wellbeing of its citizens. If the contraband is of legal items but evading tax, it is a net financial loss to the state. If the contraband is an illegal substance, it is a net loss of health & safety for its citizens. If the contraband is a lethal weapon, it is a net loss in terms of security.
Subjecting travellers to searches for these items on entry, overriding the need for a warrant or probable cause, is thus defensible as a legitimate reduction of risk. On the contrary, searching an individual who is within the country without a warrant or probable cause cannot be argued to protect the country from any risk, given that if this person has these items then they are already there — the damage has been done.
Now let's compare this argument with child pornography. The reason CP material is illegal is not because the material itself causes damages, but because its very existence requires causing damage to create it. Also, its posession —a proxy for its consumption— causes an incentive for more CP being produced and hence more damage.
To put it bluntly, drugs are illegal because they are (ostensibly) damaging to the person and community that consume them. CP on the other hand is damaging to the victims and communities used to produce it.
With that in mind, what interests of the state or society are being defended by warrantless search for CP on border entry? Without denying that a carrier of CP should hopefully be caught and put to trial, the damage is already done and will not be exacerbated by the entrance of CP into the country, nor will be reduced by stopping it. There is no valid argument for arbitrary spot-checks for CP at border crossings that could not equally be applied for arbitrary spot-checks for CP on citizens at any given moment.
As a corollary though, I have to say that my argument justifying physical contraband border checks on entry due to the legitimate interests of the state does justify warrantless CP checks on the border... but only on leaving a country, not on entry. Making it harder for locally produced CP to leave a country can be argued to reduce the incentive for local production of CP, which would result in damage reduction.
But that fails to the original point -- crossing the border with a physical medium in your possession isn't necessary to export the information out of the country, so you cannot prevent it by conducting searches there.
The state has no legitimate interest in measures that are ineffective.
> The state has no legitimate interest in measures that are ineffective.
This is contestable. I wrote a longer reply above but where I would say this is contestable is in question of what the state's interests actually are. I think you're operating on the assumption that the state's interests are that of efficiently allocating public resources and maximizing the safety and wellness of its citizens. Something most people probably want from their governments. But this is not necessarily the state's own interests. I don't think that many would argue that many members of the state actively encourage inefficiency, especially when they can personally benefit from such inefficiencies, even if at the expense of the citizens they represent. You know, treason. "Just a little treason"
Fwiw, I don't think this distinction takes away from your point, which I agree with. It just adds to potential complexity needed to possibly find a solution.
In all these examples it seems that there are perverse incentives, especially when we consider Goodhart's Law.
For starters: taking foreign travelers' phones or other devices away, temporarily or long term, creates a precedent for other countries to do the same. It is not a "rules for you, but not for me" situation. In that time period, we have no information if the device obtains malware or anything else. Thus the citizen returning home would inadvertently be "smuggling" contraband in the form of cyberweapons. It makes your own citizens more vulnerable to attack since it is much easier to hack a device when given physical access than when the attack has to happen remotely (which the government itself can play a role in since the literal entrances to networks require physical presence. Note that this does not necessitate decryption of data!) You cannot in good faith (or not) put pressure on other countries to not confiscate travelers' phones when you do the same. States that clearly don't have our own interests in mind. This is treacherous territory when you consider there are many states like China where we have contentious relationships with. Where we work with them closely, so foreign travel is not only expected but promoted (comes with an advantage of possible cultural imports, but that's meta), but at the same time there is an adversarial relationship.
When such a relationship exists between any two countries it would behoove the country to install malware on the foreign citizens' phone which can be exploited in numerous ways (both while that person is within the foreign country as well as when they return home). The only solution is to create a strong stance and precedence to prevent your own citizens' devices from ever having exclusive access by a foreign entity. This isn't just for high profile targets, this is for every citizen. We are well aware that mass manipulation works and that you can use ordinary citizens to gain increased sampling fidelity. More than one would be able to do with tools such as TikTok or Facebook.
Second: when looking at the smuggling of literal contraband such as child porn, illegal money (say idk cryptocurrencies), cyber weapons, or other such things, you have now incentivized going after the user rather than the creator. There are plenty of examples of this leading to poor solutions, with many examples of successful models. In the US the war on drugs did not go after the drug lords, dealers, distributors, and manufacturers, they predominantly went after users. The reason being is that these users are both far more common and significantly easier to pursue. When we use metrics such as number of arrests, persecutions, and so on to measure the effectiveness of our methods we align the pursuing agencies against the actual intent. The belief is that by going after users we decrease demand and side channel an attack to the upstream distributors but we literally saw an increase in alcohol usage during prohibition. Instead we can see how such metrics would actively incentivize such increases through the well known Cobra Effect. It isn't hard to find many cases where FBI agents have turned someone who was a little radical or mentally handicapped into an extremist, and then collect their bounty. Where these people would not have had the capacity to perform such an act without the help of federal agents. This isn't entrapment so much as heavy handed persuasion and is not hard to argue that the federal agent is instead the one performing that actions that are being stopped. The person being charged is a proxy or vehicle for such actions.
In classic style, Goodhart's law comes into effect because simplification of problems and a seeking of "good enough" is not necessarily aligned with the actual problem attempting to be solved. Many people forget that first order approximations often run inverse or orthogonal to the function they are approximating. Little do they question how quickly they diverge. Momentum also plays a heavy hand in these situations as we are resistant to change and exclusively operate on the belief that a system must be reconstructed from the group up (and thus stopped) rather than pushed back into alignment.
We have successfully seen models of decriminalization (distinct from legalization! Users can have contraband confiscated and still receive fines) work for drugs but this puts a significant pressure on agencies to shift focus to the true culprits of the material that is causing damage in the first place. When these work it is often because there are structures in the systems to incentivize actions that are more closely aligned with the actual intended goals. But these systems too may not work -- not just in the beginning where momentum is being overcome -- because environments change and the alignment can drift from the solution. An unwillingness to revisit and update policies is harmful in all cases. In essence, we have forgotten the clique "all models are wrong" and forget that metrics are models themselves.
"All laws are meant to be broken" because all laws are not perfectly aligned with the intent of the laws. We see any misalignment as failure in the entire system rather than edge cases or flaws that need to be updated or reiterated upon. But the environment is always evolving so if we don't have explicit mechanisms for continual updating as well as systems that perform quality assurance and account for edge cases (not just black swans) then any such system/policy is doomed. It is simply a matter of time. One needs to specifically account for that the "most optimal" route will be converged upon over time which maximizes the loss function of the policy. Maximizing the policy function is *VERY* different from maximizing the intent of a policy. The problem comes down to hyper-local (including temporal) optimization. If nuance isn't taken into account then ironically we waste far more energy pendulum swinging between solutions than were we to actually have considered the nuance in the first place. It is like waiting for things to break to fix them rather than perform regular maintenance. The latter uses far fewer resources and encourages iteration and re-alignment while the former often results in strong reactions that often result in large losses which are not able to be handled in that moment.
I often wonder if this hyper-focus on simplification is one of the great filters to intelligent creatures. Where a civilization becomes sufficiently advanced that nuanced principles dominate the challenges that such societies face, but due to the (likely) nature of the beings struggling to account for these nuances (evolutionary pressure is to approximate solutions and perform cheapest and most energy efficient computation at the scale of the individual and only within their lifetime) they are unable to solve them and worse, their solutions end up exacerbating such challenges. (Sorry, last part got very meta but I do think this is all connected because the mechanisms at play here are far larger than the specific topic being discussed.)
I'd expect that line of reasoning to get the 100-mile exemption extended from just borders & international airports to anywhere with an internet connection. It certainly won't lead to a reduction in police powers!
That would not be in the interest of a variety of powerful people not interested in being subject to arbitrary search.
Moreover, you're just making the colorless argument that anything will be interpreted to increase rather than constrain police power, despite historical evidence to the contrary. The current composition of the Supreme Court has a tendency to do that, but the two Justices most inclined to do it are also the two oldest.
Data doesn't physically exist. If you're in Mexico (or, for that matter, Africa, or outer space) with a radio transmitter, you can transmit a signal into the US. There is no physical object that crosses the border, not even a wire. There is no practical way to "search" or "detain" such data, because it's not an object, it's information. See also Radio Free Europe etc.
As a practical matter you also can't search data that comes in via terrestrial data networks because the bulk of it is encrypted and the links are too fast for realtime analysis anyway.
And as information, it also has First Amendment protection.
Since excluding information at the border is both un-American and a practical impossibility, there is no valid argument for information crossing the border to have reduced constitutional protection. Any state interest in excluding it cannot be served in that way or at all.
Why does data have to physically exist in order to justify exclusion of its import and export? Within our current understanding of physics, you can’t just transfer data without some kind of physical connection. You can’t just give someone a magic computer so it’s connected to the Internet even if you are in a Faraday cage in North Korea. Radio is an important part of modern wars, so at least in military terms data can certainly be blocked. Encrypted Internet across jurisdictions has certainly made transmission of data easier but it doesn’t mean data can not be meaningfully regulated at the border if the laws wanted it to.
> Within our current understanding of physics, you can’t just transfer data without some kind of physical connection.
Physics theorizes the existence of wormholes that can transfer information point to point. But what physics theorizes is not the point.
Whether or not you could hypothetically construct a Faraday cage around the entire United States to limit international radio communications is not relevant, because it would be prohibitively expensive and blot out the sun.
What matters is what is feasible in practice, taking into account both the physical and economic realities. The internet exists and it will continue to exist as a result of both technical reality and economic necessity. The practical effect is the widespread availability of information teleportation.
Excluding information at the physical border but not over the internet is useless, but excluding it over the internet is both not happening now and infeasible to make happen, so excluding it at the physical border will remain useless and therefore has no justification.
> Data cannot be transmitted or stored but via physical phenomena.
Physical phenomena are not physical objects.
> And such broadcasts are very much not protected from government monitoring.
The government can't monitor their contents when it's encrypted, and in either case can't meaningfully exclude people in the US from receiving the transmissions, which was supposed to be the rationale for the search.
> The government can’t monitor their contents when it’s encrypted
Constitutionally, it can monitor it.
Whether it is able to understand it is a separate question.
Though, yes it can and has accessed the content of encrypted data, whether because the encryption was broken in advance, or later because it recorded the contents and gained the information necessary to penetrate the encryption later, either through cryptanalysis or by other means of gathering intelligence.
> and in either case can’t meaningfully exclude people in the US from receiving the transmissions, which was supposed to be the rationale for the search.
Yes, there are some methods of getting data into the country for which the government’s ability to mitigate the effects of that are more limited, that is neither a legal nor much of a practical argument against mitigations measures where they are practical.
> Whether it is able to understand it is a separate question.
But that question is relevant, because the utility of any monitoring depends on the subject's ability to evade it. There is negligible value in subjecting innocent people to invasive monitoring if actual criminals have an alternate path to unimpeded communications, because the criminals will disproportionately discontinue using the path subject to monitoring, resulting in a disproportionate cost to innocent people without impeding criminal activity.
> Though, yes it can and has accessed the content of encrypted data, whether because the encryption was broken in advance, or later because it recorded the contents and gained the information necessary to penetrate the encryption later, either through cryptanalysis or by other means of gathering intelligence.
No one has ever demonstrated a practical break of AES.
> Yes, there are some methods of getting data into the country for which the government’s ability to mitigate the effects of that are more limited, that is neither a legal nor much of a practical argument against mitigations measures where they are practical.
It implies that other mitigation methods are useless, because anyone transferring contraband can merely switch to the method not subject to monitoring or censorship, if that wasn't where they started because those methods are more efficient than physical transport to begin with. And if something is easily evaded and therefore useless, surely it can justify no exceptional invasion of privacy.
But diverging into a discussion of elemental physics is fundamentally missing the practical difference: Customs and Border Patrol can seize a kilo of heroin. Can they, in actual fact, seize the aether?
> What do you think radio waves transmit through on Earth?
What do you think radio waves transmit through the vacuum of space where there are no electrons? It's energy, not matter.
But that still isn't the point. The point is that the United States does not in fact and could not feasibly in practice block all radio transmissions from outside the United States from reaching people inside it. The First Amendment may prohibit them from doing so even if it was technically feasible, which it also isn't.
The parent comment is clearly referring to a terrestrial border, on Earth.
And in any case humans currently only possess the technology to receive radio waves, even in a hard vacuum, via electrons. So 'Data' that matters to humans is always physical, with tangible non-zero mass, 100% of the time in 100% of all conceivable situations circa 2023.
Radio waves are not made of electrons. They are waves not particles. You cannot put them on a shelf in the evidence room. They do not require matter to transmit through, which is why they still work in the vacuum of space.
But most relevantly, there is no practically feasible barrier you can use to keep them out of your country.
It feels like your not reading my comments thoroughly, or associating non-existant claims to them. No one has said anything about whether radio waves are 'made of electrons' prior to your comment.
Also, what does 'practically feasible' have to do with the parent comment?
A lot of things that are not practically feasible are nonetheless mandated in some form or another, and are still punished for if a transgression is detected via happenstance, there are many examples throughout history.
I hadn't heard this story, but I was impressed that the woman featured in the film actually flew in person to come to court to prove she was 19, not 13.
It’s not just contraband information, but also information that can validate a persons answers when examined for entry into the country.
It’s not rare that someone’s phone is examined entering US/Canada for tourism to see if they are going to work illegally.
But I do agree that carte blanche access to the entire contents of a phone seems overboard. There should be some safe guards that limit access to private information.
I have been held up at the us and ca borders many times in my life for border patrol thinking I was coming there to work. It is all very presumed guilty work. The worst was travelling to aus where they made me prove I had enough money. Since that time I bring a clean phone, a special bank account for crap like this, no laptop and put on nice looking clothes. They just wave me in since that.
It absolutely is one of the purposes of a physical search.
They can search your physical property to see if there is evidence you plan to work in the US or are lying about your intentions for entering the US (all countries do this).
People have been denied entry because they bring work documents while saying they are entering the US for tourist purposes.
I don’t disagree that search of electronic devices should be a higher bar, but physical searches to determine intent to enter has always been in immigrations remit.
> They can search your physical property to see if there is evidence you plan to work in the US or are lying about your intentions for entering the US (all countries do this).
But doing this is useless. It only works once.
People who intend to work on a travel visa bring their work documents across the border, one of them gets caught, they object and take it to court. If the court says the search is allowed then it's henceforth public knowledge that it's allowed so people intending to do this stop physically carrying their documents across the border and instead transfer them over the internet.
Already it's common guidance for anyone to do that even if you're not breaking any laws, because it keeps them from rifling through your life and detaining you while they force you to explain whatever nonsense false positives they may find.
At which point the search is purely an inconvenience to innocent people and a trap for the unwary because anyone actually breaking the law can easily avoid physically transporting any incriminating documents across the border.
That's an argument to be had but is extremely separate from this one.
Each country has the right and privilege to determine who is allowed in and why. I may or may not like their choices but it's their right to make them.
Most countries (this is empathically not some USA specific weirdness) make a significant distinction between those who want to enter temporarily to see the sights, vs those who want to enter more permanently, perform work, and thus engage themselves with the system more broadly (taxes, accident insurance, healthcare, what have you).
While I personally 1. Think there should be more broad immigration into virtually every country but particularly mine and 2. Think border data searches are unreasonable, I think conflating the two detracts from either argument.
> In fact, no citizen of any country can be denied entry to their country of citizenship
Not Australia. During the height of the pandemic, there was a period of time that the government made it illegal for Australian citizens to come here from India.
I actually flew into Australia during the Pandemic.
I think there was a technicality there - the Australian government just cancelled all commercial flights from India. If you wanted to sail your own yacht, I'm sure you could have come int.
Splitting hairs on the hair splitting - a country cannot revoke someone's citizenship if doing so leaves them stateless. At least, this is the UN convention of human rights apparently. Of course, in reality, the country doesn't deny entrance, but could just as easily detain upon entree.
There are plenty of countries who have not signed on to the UN Convention on the Reduction of Statelessness, including the US. So, yes, you can be left stateless by the US revoking your citizenship. However, pretty much only treason or voluntary renouncement could potentially lead to such a situation, and treason hasn't been charged in the US since the immediate aftermath of WWII.
You're right but sometimes they try to argue that they belong to some other state like the UK did in "Begum v Secretary of State for the Home Department [2021]"
"If you’re driving or walking back into the US from Canada or Mexico, and you don’t have your passport with you, be prepared for some hassles. Although you won’t be denied entry to the United States, you will be taken out of line to be interviewed by US Customs and Border Patrol officers. Your return to the US will be delayed until the officials are satisfied that you are a US citizen."
I had confirming experience on Cruise Ship operating in the Gulf of Mexico. Didn't have passport with me as I went through immigrations. I looked at the selection of immigration officials and was of course directed to the most intimidating official. When I told I didn't have passport he threatened to have me beaten. Happily he was joking. I went through with no issues at all. However, I also suspect skin color matters in these outcomes.
> You can clearly be denied boarding a flight by an airline if you don't have the proper documentation.
Yes -- airlines are already fined significantly if they knowingly admit someone undocumented, with wrong documentation, etc by the destination immigration authorities, so it's in their best financial interest to have their own internal strict controls as to who can get on and who can't.
The root problem of this is the same as any oher law enforcement agency (or workplace we might even say) is that their main purpose is not solving or deterring any crime but just to show that they’re trying.
> How is this not even addressed in any of these articles or rulings?
Because people have been taught that they need to be authoritarian or else.
If you question authority you're a conspiracy theorist and we need to investigate you and harm you. Trust the government designated experts. You don't get to decide who are the experts. Experts who don't agree with the government are also conspiracy theorists.
Now it's far too late to have honest conversations, even with very unpopular stuff because people are ready to have a knee jerk reaction to if "forbidden topic/opinion" comes up. Security theater and hygiene theater are great examples.
No, in a functioning democracy, it is the job of the legislature to write laws. However, looks like we can barely pass a budget most years. I saw Jeff Jackson from North Carolina say on tick tock that it is likely that we won’t even be able to do that on time this year.
Warrantless search of a locked phone is one thing (and should be illegal also at borders).
Warrantless search of a lock phone of an immigration attorney (!) who travels under a pre-approved government program is quite another. This creates the suspicion that they perhaps did not honor the "privileged filtering", and wanted information about one of his clients.
Those people should not travel to "such states" (USA, GB, AU, ZH) carrying smartphones, get a pack of Nokia 110 Dual-Sim non-smart phones at $40 a piece, all they can do is make calls [EDIT: and play "Snake"]. Before getting on a place, clear the call log. Don't store client phone number in contacts.
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
Neither does cellphones or GPS, but the court has to keep trying to apply a 250 year old text to modern culture.
When SCOTUS was doing the GPS case they had to try and imagine the 1700s equivalent, which was an officer hiding in the trunk of a horse-drawn carriage and writing down all the places they stopped at. Think about that.
Because convenience, creating a secure cloud backup and restoring it once you passed immigration is a lot of hassle must people would rather skip doing.
What? Change the password on your github account to something you can remember (grand mothers full name) and log out on your phone. Done..
Would work for google docs too.
I get the sense the implication is that the U.S. doesn't have strong protections. That's wrong. Many governments in allegedly civilized Western countries have security services with much more power than in the U.S., permission to seize and search your phone being pone of them (the U.K. and Australia are especially bad). The U.S. actually has unusually strong protections against the police in this regard and in others.
You also might consider that usually these protections don't apply to you if you're a foreigner who's trying to get in to a country not your own. They have no obligation to let you in and they can ask anything they want in exchange for access.
The US also has unusually large differences between the rights of citizens and non-citizens. In the European way of thinking, most rights are human rights. Citizens only enjoy a limited set of additional rights.
In particular, citizens have the right to enter the country, while non-citizens can be turned away. However, border officials do not have substantially wider powers at the border than the police have inside the country. You don't lose your constitutional rights just because you happen to be a non-citizen trying to enter the country illegally with the intention to commit crime.
The US has very few rights that apply only to US citizens. All visitors have 1st amendment rights to free speech, rights to legal council, to a jury, to avoid self-incrimination, etc.
The situation is as you describe if you believe the US Constitution. Unfortunately the Constitution is an obsolete piece of paper that no longer serves as the constitution of the US. The real constitution has long been the set of creative interpretations issued by the Supreme Court. According to those interpretations, non-citizens often have substantially fewer rights than citizens. That was particularly obvious in the aftermath of 9/11.
I'm sure you have some examples as opposed to vague general statements, right? If anything, the fact that noncitizens in the US get constitutional protections was emphasized after 9/11.
Yup. More explicitly: The reactionary majority on the Roberts Court consider themselves above the Constitution. By both word and deed. aka "judicial primacy".
The US Constitution does not authorize delegation or re-delgation of right-granting or selective-right-limiting to law enforcement (or to physicians). The US Constitution serves to specify dates and times, values, and specifically what the government may not do.
Write a function to determine whether a given person has a given right.
What attributes of the person are constitutionally relevant to determining whether a person has a given equal right? Which conditionals are acceptable in a function that equally protects equal rights?
Then, Write a function to determine whether all persons have Equal Protection of Equal Rights.
The government has Unconstitutionally and thus illegally limited the rights of persons where the government has discriminated on the basis of disability and of citizenship.
John Locke and John Stuart Mills wrote about Liberty. If it be unequal, it isn't liberty at all.
“In 2017 both Germany and Denmark expanded laws that enabled immigration officials to extract data from asylum seekers’ phones. Similar legislation has been proposed in Belgium and Austria, while the UK and Norway have been searching asylum seekers’ devices for years.”
Note that the powers were given to immigration officials, not border officials. Those people are bureaucrats working for the local equivalent of USCIS.
Huh? My comment directly disproves this claim I replied to.
“However, border officials (in the EU) do not have substantially wider powers at the border than the police have inside the country. You don't lose your constitutional rights just because you happen to be a non-citizen trying to enter the country illegally with the intention to commit crime.”
Clearly asylum seekers in the EU do not have the same rights as EU citizens.
No, you are conflating the immigration process (which is an attempt by an individual to obtain the same rights that citizens have whilst in the country) with the crossing of a border (which is a much simpler process and is usually handled right at the border). The two are completely disjoint. The article deals with border crossings, not with the immigration process as such, though usually if you want to immigrate you first have to cross a border. This is why the United States is so picky about people that start their immigration process once they are already inside the United States. They would much prefer you to start that process from without so that you can be stopped and refused entry at the border. Doing that later - for instance, through deportation - is much harder.
Asylum seekers anywhere do not have the same rights as the citizens of that particular country or immigration area: if they did we wouldn't call them asylum seekers. Asylum seekers are simply a special class of immigrants for whom special processes and documentation requirements may apply and who may have extra rights based on their asylum seeking status. There are whole bodies of law around this theme.
Finally: the EU doesn't have a constitution. So you can't directly compare the EU situation to the United States one anyway, and from both a border crossing and immigration perspective the two are vastly different.
The thing you are referring to is that specifically undocumented asylum seekers (of which there are many) can have their phones searched to ensure that their story matches. You can agree or not with that policy (personally I'm conflicted about it, I can see both sides here) but that isn't anything at all like the border guards being allowed to search any phone they think is interesting.
My response was not specific to border crossing or the immigration process, it was the broader claim:
"The US also has unusually large differences between the rights of citizens and non-citizens. In the European way of thinking, most rights are human rights. Citizens only enjoy a limited set of additional rights."
So I posted a link to an article showing that, no, the EU is not that different than the US in having a different set of rights for citizens and non-citizen.
Your comment about "Asylum seekers anywhere do not have the same rights as the citizens of that particular country or immigration area", which basically agrees with the point I was trying to make.
The EU doesn't derive most rights from human rights. Every country has its own constitution and the differences between EU countries is vast, as is the relationship of each country in the union (and plenty outside of it) with the EU.
All these generalizations serve no purpose and are strictly speaking off-topic. If you're going to make such comparisons you're going to have to work a lot on clarifying the context within which your comment is made because it is very easy to misconstrue what you write on account of the gap between the situation as it really is and how you present it.
Dragging in asylum seekers serves no purpose, that's not what this is about at all, so you categorically can't illustrate any differences between the US and the EU regarding the rights of people crossing borders by shifting the topic like that.
Even if such a comparison in the abstract might be interesting. We could also start a conversation on emacs vs vi in this thread, it would be about as off-topic.
All these generalizations serve no purpose and are strictly speaking off-topic.
I agree, but I'm responding to a comment that made a generalization, not bringing a generalization into the discussion.
Dragging in asylum seekers serves no purpose
I'm responding to a generalization, so providing a specific example where the generalization is untrue, serves the purpose of proving that the generalization is untrue.
If you have concerns that specific topics shouldn't evolve into broader topics (that seems to happen in the comment of every HN post?), that's fine, but I think your comment would have been better directed at the person I originally replied to that introduced the generalization.
No, you introduced the topic. The parent to your comment did not mention asylum seekers at all. Unless you have some other comment in mind, in that case would you mind pointing it out?
The comment I originally replied to said "The US also has unusually large differences between the rights of citizens and non-citizens. In the European way of thinking, most rights are human rights. Citizens only enjoy a limited set of additional rights."
Which is clearly broadening the conversation beyond just border inspections.
> The U.S. actually has unusually strong protections against the police in this regard and in others.
Uh, what protections exactly? The article explains in detail how nobody has any protection against phone searches at the border, including lawyers with privileged information.
Yeah I did a bad job of explaining myself. I was thinking of border searches as a subset of the protections of privacy (in the U.S., operationalized as protections against unreasonable search and seizure). Overall people tell the police to fuck off all the time when they come asking, and you have strong protections when you're doing that. The police rely heavily on people not knowing their rights.
> I get the sense the implication is that the U.S. doesn't have strong protections. That's wrong. Many governments in allegedly civilized Western countries have security services with much more power than in the U.S., permission to seize and search your phone being pone of them (the U.K. and Australia are especially bad). The U.S. actually has unusually strong protections against the police in this regard and in others.
But I'm confused. How does this apply to people who would use burner phones in the US? Presumably US citizens who live in the US won't use a burner phone in the US and keep their real phone in a stash in Mexico/Canada.
> You also might consider that usually these protections don't apply to you if you're a foreigner who's trying to get in to a country not your own. They have no obligation to let you in and they can ask anything they want in exchange for access.
Oh right, so this doesn't apply to people who the advice was addressed to. You were just having a nationalistic knee-jerk reaction. Good to know.
Yeah I didn't do a great job of expressing myself. Here's another try: the list [U.S., China] implies the U.S. does a really profoundly terrible job of protecting your rights to privacy (in the U.S., a prohibition of unreasonable search and seizure) because China is dystopian-abysmal on this scale. When, in fact, the U.S. does a pretty good job especially in comparison to other developed Western nations: you can absolutely refuse a search when the police show up, and indeed you should unless YOU called them. Their tactics include trying to make it seem like you don't have a choice, but you do. Many other developed nations are much worse in this regard (the U.K. and Australia are particularly bad). But I was thinking of France, personally. It's hard to imagine French people refusing to help the police because, as far as I know, you really can't and you have to answer their questions.
This ruling in the 5th Circuit (so it only applies to the 5th Circuit?) is bad and reduces the U.S.'s standing with regard to how strongly it protects you against unreasonable search and seizure, but the U.S. still does a pretty good job overall. The 100-mile thing is, in practice, not a thing for U.S. citizens in the U.S. It's still very bad. But the border police aren't the people seizing and searching your phone if you're already in the U.S., it's the local police or the FBI and they have to get a warrant.
It's a similar situation with strong protections of other rights, like the right to free speech. Denmark is considering making public Koran burning illegal, for instance, or the right to peaceably assemble / protest, which the U.K. just got rid of. Part of it is the very concept of "rights" as instantiated in the U.S. Constitution.
>Oh right, so this doesn't apply to people who the advice was addressed to. You were just having a nationalistic knee-jerk reaction. Good to know.
The notable part of the article to ME was that the border police can search returning Americans' phones without a warrant. I think the default situation in developed countries is that if you're a foreigner trying to get in the police can search you without a warrant, and maybe that includes phones? It's a shitty situation, but that's how it is.
As it turns out, I have a passport from somewhere other than the U.S. :-)
Seems all we need now is one law officer with enough backbone to dump smartphone contents of Supreme Court judge in 100 air mile range of the border, or as federal gov would say "at the border" https://www.aclu.org/know-your-rights/border-zone
It was explained to me that they can also search without warrant within a large swath of the border, inside the country. I want to say I was told 50 miles, which covers an absurd portion of the citizenry. Can anyone confirm my understanding?
It's important to realize this 100 mile zone only covers entering a public transport vessel (bus, train), and immigration checkpoints (only along N/S border). Within 25 miles, they can enter private property without a warrant (excepting dwellings). So it's a lot more limited in scope than it first seems.
Source: "Customs and Border Protection's (CBP's) 100-Mile Rule" - ACLU Washington office.
It would be more privacy preserving and just as effective to have a policy of bulk erasing devices when they cross a border. The e-waste version of being forced to buy bottled water in the airport.
Either that or set up a kiosk 10 metres before the gate where you could backup your smartphone to a usb stick and do a factory reset. And another kiosk at the destination airport, for reversing the process. Data 100% encrypted.
Bonus, collect payment upon decryption, a la ransomware. Maybe start a chain and call it "runsomewhere".
While I'm mostly joking here, things like this are already happening; the mechanism of 1Password's "Travel Mode"[1] is pretty similar to the above idea.
What happens when the courts are packed with political appointees working on behalf of those free trips from the billionaires. Oh and those judges think so much of their prestige and absolute power that they don't both disclosing their perks.
> In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.
That's the part I was curious about. For a while now, the suggestion shared by bar associations [on both sides of the border] has been that assertions of privileged should always, always, always be accompanied by disconnecting the device from the internet.
Here is a letter [1] from 2017 sent by [President of] the ABA to policymakers on changes that should be made to the process; but I'll just summarize the relevant part:
[Linda Klein, ABA President] suggested that, if and when a lawyer travels across the border with any electronic device that could contain privileged or otherwise confidential client information, officers should only be allowed to conduct a standardized, cursory physical inspection - AND - unless the officials obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause, border agents should absolutely not be allowed to read, copy over, seize or share any privileged or confidential documents and or files stored on those devices.
For an attorney, the professional obligation to do everything you possibly can to disallow unauthorized access to privileged materials is essentially the golden rule of the profession; NY/Michigan has, for a while now, strongly suggested to members that, in the event of a border agent getting dangerously close to accessing information they shouldn't - the attorney should escalate to a superior officer to find a solution where the privileged information remains confidential - but - this decision seems to renders escalating as a waste of time which really isn't great.
Best thing to do is disconnect and power electronic devices off prior to presenting yourself at the border. That should be safest for the foreseeable future and I'm not aware of any specific challenges on whether LE should be allowed to power on/reconnect a device during an investigation - that would be an incredibly concerning development and thankfully we aren't there.
At the end of the day, there are tons arguments for how these interactions should be conducted presented by both sides. The whole 'security' thing does have some merit - but allowing increasingly infringing behavior in the spirit of 'security' isn't something that should go unchallenged.
>Best thing to do is disconnect and power electronic devices off prior to presenting yourself at the border.
I might argue that unpowered mobile devices, including laptops, bring attention to the devices.
Border inspection types are certainly inclined to ask that you power your devices if they are off - at least they often do with foreigners entering Germany.
> Border inspection types are certainly inclined to ask that you power your devices if they are off - at least they often do with foreigners entering Germany.
The reason for that is that you could disguise a bomb as a laptop where the battery would be the explosive.
That device would never been able to be powered on though, hence the check.
I've been required to power on devices (even RPis) when traversing through Spain. Some places do require seeing devices power on (even if it's some blinking lights).
Interesting. I was wondering why the 100 mile border zone extends acoss California almost all the way to Reno, Nevada, and I found this (https://law.stackexchange.com/a/43233):
> The immediate explanation is the substantial eastward jog created by Suisun and Grizzly Bay. This would follow from 33 CFR 2.20, defining the territorial sea baseline, following the Convention on the Territorial Sea and the Contiguous Zone. The zone would fall just short of Lake Tahoe. It's based on tidal waters, see 33 CFR 329.12 for similar definition of the US baseline in terms of waterbodies subject to tidal action.
> (b) Bays and estuaries. Regulatory jurisdiction extends to the entire surface and bed of all waterbodies subject to tidal action. Jurisdiction thus extends to the edge (as determined by paragraph (a)(2) of this section) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation, or other barriers. Marshlands and similar areas are thus considered “navigable in law,” but only so far as the area is subject to inundation by the mean high waters.
I think there are a lot of issues with law enforcement in the US but using Uvalde to generalize to all police is a bit unfair.
There are plenty of counter examples where police responded rapidly. For example the Nashville school shooting[1] or Allen, Texas mall shooting[2] (there's footage where an officer chatting with a mom and her kids immediately ran towards the shots).
Unfortunately people would never read in the news that a potential or active terrorist courier was deterred from transferring sensitive information to local cell by this policy.
Joke aside, efficiency of this policy would be very hard to prove, that would be akin to attempting to prove efficiency of a fire department, or teaching curriculum.
Also don't get me wrong, I would really hate to be at the receiving end of this policy that has "abuse of power" written all over it. And like to know where would the search impede onto the privacy to the individual, and protect our dignity as human.
How? Keep your resume on google docs (something that's perfectly reasonable), and you can walk into any copy store and poof you have a hard copy.
I've kept my resume on google for over 15 years. Same with tax papers and references too.
My work product docs are stored in the cloud, and when I'm logged out of said cloud, I have no access.
I can buy a new mac, and have a working system in under an hour.
They get questioned about their "vacation" in the US and don't have great answers. The CBP asks to see their phone, and in less than a minute asks "Why did you send this text that you'll be starting a new job on Monday?"
But the amount of information on you they can get from your phone expands significantly every year. The founding fathers defined search and seizure as your house, which had your papers, banking documents, money, now all that is online and viewable with a fingerprint anywhere you are.
Me personally, 100 miles, probably not - most of the time.
In Criminal Procedure, many law professors skip this section of the book (a bunch of drug cases) and summarize the caselaw with “you have no rights at the border.”
Where do you live in the US? If you are within 100 miles of a coast or border, you're "at the border" and these rulings apply.
2/3rds of the US is at such a border, and thus any CBP officer can perform a warrantless search of anyone without even the suggestion of any kind of probable cause. I'm honestly surprised we haven't seen police report anyone suspicious to the CBP in the knowledge that that gives them a direct bypass for any illegal search they want.
And the general thrust of pointing out things like this is to discuss whether or not the law is wrong. As laws are made and enforced by societies, it is entirely possible that they might need to be changed by those same societies as their needs and ethical standards change.
The ostensible reason the border officers have these powers is to protect the country. We don't want undesirable types allowed in (let's defer the fun of defining the undesirable types:).
But... This feels like "real time process". You let somebody in or you don't. How does confiscating the phone and keeping it for five months aid in this? Is the assumption that any evil deed would take 6 months to execute? And that if we discovered something bad on the phone, five months later we'd have an easy time catching the owner?
Basically,in which twilight universe is searching a phone off line for months part of border security prerogatives?? Is it not obvious to everybody involved that this search is for purposes, good bad or ugly, other than border protection? How is this not even addressed in any of these articles or rulings?