Border agents can search cellphones without a warrant or reasonable suspicion

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mmmh0000 about 3 hours ago 72 commentsRead Article on lawandcrime.com

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mmh0000•about 2 hours ago

It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.

The 4th Amendment says, exactly:

   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.

I do not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].

[1] https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...

rtkwe•about 1 hour ago

So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?

hdgvhicv•about 1 hour ago

The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.

The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.

The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.

bluecalm•39 minutes ago

>>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.

The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.

>>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today

It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.

alistairSH•about 1 hour ago

But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?

rtkwe•42 minutes ago

That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?

SoftTalker•about 1 hour ago

It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.

EGreg•about 1 hour ago

Yeah, where does this come from? Who keeps defending this, has it been challenged?

About 213 million people live in this zone, so 2/3 of people in the USA. So I guess the 4th amendment doesn't actually apply to most US citizens?

flerchin•about 1 hour ago

Yeah the plain language is unambiguous. That there is an historical border search exception simply doesn't matter to me. We fought a war for this, and it's bullshit.

dmoy•27 minutes ago

I mean... yea we also have some shaky interpretations of the 1st amendment (see especially, assembly), 2nd, 5th (e.g. the incredible pressure for plea bargaining), 6th (which, paradoxically, is a major reason for aforementioned pressure on plea bargaining, so I kinda get it), 8th given how bad some prisons are, arguably 10th (even if I am personally not a fan of the 10th amendment so much), and arguably still the 15th (though it's obviously orders of magnitude better than the first 100 years of its existence).

And also various other parts of the construction, like the interstate commerce clause does some comically heavy lifting.

ReptileMan•20 minutes ago

If you torture the US constitution enough it will eventually confess.

There are a lot of issues that fail the constitutional grep test yet somehow they are deemed (un)constitutional. The constitution was written to protect the people and states from the overly zealous congress. Not to fix the situation in which the congress is so dysfunctional that the judiciary has to replace it.

esafak•about 2 hours ago

https://en.wikipedia.org/wiki/Border_search_exception apparently

fsiefken•about 1 hour ago

This happened to me last month in Halifax Canada, I wanted to board a transfer flight to Amsterdam, going through Boston. I was stopped as I had salts with me from a buddhist relic I couldn't exactly identify. The machine said it contained a primary explosive (silver azide). I was ordered to give my access code to my iphone and 3 suspicious screenshots were found I made 2 years ago about the Iran/Israel war. I said I'm interested in geo-politics and watched the news. I was barred from the US for life - it was said that it could have been much worse. When I wanted to go to the main airport hall a number of canadian police officers arrested me and drove me handcuffed to a cell. I was asked if I wanted a lawyer and they arranged a phone call. The lawyer said I would spend to nights in a cell and then she would come to prepare my case and was strongly advised not to talk to people before that. I was released from my cell 7 hours later that evening after a thorough and friendly conversation with the canadian special police. I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job. That day there was a threat alert I heard later. A week later I heard from the person who gave me the relic (I was on retreat) that the border guard contacted them and said it was a false positive (what I suspected at the time, but I didn't dare argue against the machine results).

causal•30 minutes ago

> I was barred from the US for life

I'm a little confused. Canadian police barred you from the US for life?

Also sounds like you did not take your lawyer's advice not to talk. Regardless, sorry you went through such a stressful ordeal over a false positive.

mixdup•13 minutes ago

You can pre-clear US customs and immigration in a number of Canadian airports, including Halifax

jm4•30 minutes ago

You were barred for life over a false positive? That's crazy.

teachrdan•29 minutes ago

They were barred for life for having screenshots the current administration considers anti-American.

dmos62•40 minutes ago

I commend your understanding. I would have been losing my mind with rage.

ramesh31•about 2 hours ago

The best time to delete all social media accounts and never post anything online with your name attached ever again was 10 years ago. The second best time is right now. This stuff can and will be used against you out of context 10, 20, 30 years into the future.

derwiki•43 minutes ago

Completely agree.

Does HN comply with CCPA requests?

petcat•about 3 hours ago

Customs has always been able to search everything without a warrant or suspicion when crossing the border. I guess this is saying that they can search the digital contents of physical devices/media as well?

otterley•29 minutes ago

Not everything. From the case itself:

"To be sure, nonroutine searches, which are “more invasive searches, like strip searches, require reasonable suspicion.” Id. But we have held that “the label ‘non-routine’ should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings.” United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added)."

wrs•about 2 hours ago

It says they can manually search them. According to this, the ruling explicitly doesn’t say if they can digitally search them.

inopinatus•about 2 hours ago

digitally also means “using the fingers”, so never consent to a digital search without prior clarification

esafak•about 1 hour ago

You using the whole fist, doc?

0xbadcafebee•about 2 hours ago

The problem with these laws isn't that they can search you at the border. It's that they can search you within 100 miles of the border (https://en.wikipedia.org/wiki/Border_search_exception). The total number of people who live within that zone is 213 Million people, or 2/3 of the total population (https://www.aclu.org/know-your-rights/border-zone).

ArcHound•30 minutes ago

Seems like a generally terrible idea. Why this cannot be one day changed to 200 miles on a whim?

mixdup•12 minutes ago

It will, one day, be changed to 200 miles (or more) on a whim

ErroneousBosh•4 minutes ago

Given that the US's economy is utterly dependent on tourism, do they just not want to have money any more or something?

Because who in their right mind is ever going to travel there at the moment?

righthand•about 2 hours ago

So carry a separate device while traveling. Or wipe your phone, then restore after the border. This is just going to lead to a service that does this for you and the overreaching feds won’t be able to do anything about it.

And as far as I can tell you still don’t have to give them your pin code.

peezd•about 2 hours ago

It's been somewhat established that having a wiped or basic phone is in itself sus and reason for them to investigate you further.

iamnothere•about 1 hour ago

They can investigate all they want, they can even detain you briefly, but if you are a citizen and there’s no evidence of a crime then they have to let you in.

CamperBob2•about 1 hour ago

They have more guns than you do, and these days, most of the judges are blindly and shamelessly on their side. They don't "have" to do jack.

otterley•27 minutes ago

Do you have any references to this?

puppycodes•about 1 hour ago

Have not heard this, whats your source? I don't see how they could determine that because "its a new phone" is hard to dispute.

best case scenario is that a higher court overturns this but not holding my breath.

autoexec•about 2 hours ago

They don't need your pin, they can just hack the phone take all your data anyway. ICE has a contract with Cellebrite

puppycodes•about 2 hours ago

Not really. Cellebrite isn't magic. If you have an up to date OS and a strong password not pin, encryption functions as it should. The best thing to do is simply have a travel phone.

prettyblocks•about 2 hours ago

the worry is that this will be interpreted as tampering and cary consequences.

iamnothere•about 1 hour ago

This would not be tampering, because you haven’t tampered with anything. The “evidence” is simply at home.

SoftTalker•about 1 hour ago

The law isn't a computer program. Intent matters.

ChrisArchitect•about 1 hour ago

[dupe] https://news.ycombinator.com/item?id=49754687

andix•about 2 hours ago

Anyone still crossing US borders with electronic devices that aren't fully wiped? This is company policy for some European companies for a long time. Even during the Biden administration.

Most employees just receive a wiped phone/laptop for the duration of the trip. Depending on the country its either a device that only has access to the bare minimum of Services, or for countries like Russia they issue a dumb phone that can only call and text.

iamnothere•about 1 hour ago

Half of the commenters here seem to believe that nobody has ever done this successfully because it must be “suspicious”. Despite it being a common practice for many organizations.

andix•about 1 hour ago

It might be suspicious, but they don't get any incriminating evidence that way. It's also much easier for people visiting. Most of the time entry is denied and you can take the next plane back home. I'm fine with that, don't care. I only care if I would get taken into ICE detention. This risk grew significantly, so I simply won't go.

SoftTalker•about 1 hour ago

Yes, the vast majority of US citizens returning from international travel cross the border with their regular personal, unwiped phones every day.

flerchin•about 1 hour ago

It's frankly insane that y'all have to do that, and yes Americans cross the border, perhaps haplessly.

andix•about 1 hour ago

Is there any difference between US citizens and visitors? It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal. Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.

Ps: we also don't have some special paramilitary border police. Just regular police stationed at the border.

mixdup•9 minutes ago

all of our police are essentially paramilitary now. There's nothing special about ICE or CBP other than they're federal rather than local. Even local cops have become hyper-militarized and think they're patrolling the streets of Fallujah

SoftTalker•about 1 hour ago

It's not routine. Most tourist visitors don't have any trouble. I'm a US citizen, but I've never had my phone searched at an airport or border crossing, not that I cross the border all that often.

gigel82•about 2 hours ago

This is confusing; what happens to you if you refuse a warantless search of your property?

I'm a US citizen returning home. Do they just... send me back out of the country? :) I don't suppose they'd have the grounds to arrest me since there is no law that I can see being broken. I suppose they could keep the device until such time that a warrant could be obtained to digitally search / break into the device (but that requires some reasonable suspicion - simply refusing a warantless search isn't it).

boldlybold•about 1 hour ago

They let you in and keep your property. I've never had an issue at a border, but I still keep my devices encrypted and powered off when crossing.

rtkwe•about 1 hour ago

As a citizen they cannot block you from returning to the country. What they can do however is seize your devices (and briefly your person) and other property.

aDyslecticCrow•about 1 hour ago

They can put you in custody.

mixdup•11 minutes ago

Not for this they can't. They can seize your belongings but they can't detain you for something that isn't a crime and they cannot prevent you from entering the country if you're a citizen. You have an absolute right per Supreme Court rulings to enter the country unconditionally as a citizen

crooked-v•about 1 hour ago

They detain you, probably take and keep your stuff, and within a relatively short amount of time release you.

Well, they probably release you. If you're brown or just dealing with the wrong people they may unlawfully beat, kidnap, and exile you anyway (https://en.wikipedia.org/wiki/Deportations_of_U.S._citizens_...).

0xy•about 1 hour ago

It's a massive swing and a miss that GrapheneOS has a religious opposition to a VeraCrypt-style hidden volume arrangement that allows different passwords to unlock different OS volumes.

It would be vastly superior to their current solution, which basically guarantees contempt charges.

I hope they change their mind soon!

PaulKeeble•about 1 hour ago

The problem is it will be detectable and detected and then the password demanded and a failure to provide it will result in charges. I think unfortunately the answer is the phone has to be plausibly empty when crossing the US border, they should focus their efforts on being able to store the full state of the phone remotely and encrypted and being able to restore it easily.

mixdup•7 minutes ago

Would it be detectable to some goon at the border? Probably not. They'd put in the sanitized password, see nothing, and let the person go. If it gets seized and an FBI or CIA analyst gets ahold of it, then yeah the smart guys are going to see it but you'd be in that situation anyway, so why not have an out that may avoid it?

UncleOxidant•about 1 hour ago

This. There should be a password that unlocks to a fairly minimal, but not too minimal configuration that wouldn't have anything of interest on it.

SoftTalker•about 1 hour ago

What do you imagine being on your phone that is "of interest" to CBP at a border crossing?

tencentshill•about 3 hours ago

And now you're extra suspicious if you don't have one at all