I know people who have two factor codes and password vaults on their phone's that if compromised by a competent attacker could compromise nearly every major corporation in America.
Imagine if a foreign intelligence agency managed to get a border guard asset.
Even from a reciprocity point of view, if we search other people's phones, that sets expectations that ours can get searched too. It's dangerous precedent all around.
> I know people who have two factor codes and password vaults on their phone’s that if compromised by a competent attacker could compromise nearly every major corporation in America.
That is a national security concern.
And, no, I don’t mean “warrantless searches of those devices raise national security concerns”, I mean, that state of affairs irrespective of US government search policies is a national security concern.
I've worked at a security software engineer at multiple FAANG where I've held the proverbial "keys to the kingdom." It was a strange feeling knowing that my compromise could lead to the complete and total takeover of the companies I worked at. Realistically, these companies are already compromised by multiple nation-state actors; regardless, I'm glad to not have that responsibility hanging over my head anymore.
The dichotomy between your comment and the sneering of Xooglers in the recent "RCEs on Google engineer workstations is not a security issue" is interesting.
Put more simply/directly: if these people put those credentials on their phones in the first place, they should be embarrassed by their security hygiene. More than embarrassed: possibly fired, or at least have that access taken away until they take a basic infosec awareness course.
OP stated that getting access to the phone would have allowed a hacker to compromise the protected systems. A 2FA credential alone shouldn't allow that, so my assumption was that they were storing a full authenticator on the phone.
What kind of kompromat could I read on one of these phones during a border search and compromise a big company? Are you talking about a draft press release or dirty secrets about large scale crimes?
Before Snowden everyone was like, who cares if the government sees my encrypted traffic, they don't know what is inside; or location info. And then people found out that metadata can be more powerful than the actual unencrypted information and can tie a person to a lot of things. So yeah, how about they don't search the phone without probable cause?
I find it astonishing, and horribly upsetting, that people think needing a warrant is horrible.
Needing a warrant, means you have to articulate why you want to invade someone's private life, and it further provides a chain of accountability.
It prevents rogue employees(peace officer, border patrol) from doing whatever they want, it provides oversight, it provides a second set of eyes, it provides for adherence to legislation and court decisions!
Yet I see people thinking it's some sort of horrible requirement. So bizarre.
Snowden showed they absolutely spied on each other and shared documents, though the legality question is still not exactly set. From the wikipedia on Five Eyes:
> Documents leaked by Snowden in 2013 revealed that the FVEY has been spying on one another's citizens and sharing the collected information with each other, although the FVEY nations maintain that this was done legally. It has been claimed that FVEY nations have been sharing intelligence in order to circumvent domestic laws, but only one court case in Canada has found any FVEY nation breaking domestic laws when sharing intelligence with a FVEYs partner.[11][12][13][14]
> Snowden showed they absolutely spied on each other and shared documents
[citation needed]
The very first sentence you quoted doesn't cite any of Snowden's docs that says that. The very next sentence you quoted has a bunch of citations that say the opposite. In fact, conspiracy theorists speculated what you claim after Snowden dumped his documents, but none of Snowden's documents corroborated that claim.
Funny enough, I started reading Butler to the World. First chapter retells an ancedote from NSA General Michael Hayden. In 2003 he called up his GCHQ counterpart and told him that in the event of catastrophic failure at the NSA, GCHQ would "run the show". Hayden's words.
So much trust involved in a possibly nuclear-level scenario, and you're not curious at all how that trust was built up? Such as by sharing intelligence?
> So much trust involved in a possibly nuclear-level scenario, and you're not curious at all how that trust was built up? Such as by sharing intelligence?
Because they don't spy on each other and they share intelligence gathered elsewhere, as the agreement says. Why would you jump to the conclusion that this quote means they help each other break their respective countries' laws despite complete lack of evidence?
You should probably tell the person who keeps information on their phone that could compromise most US major corporations to stop having that on their phone, or at least to stop traveling internationally with that phone.
> In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by CBP and the U.S. Department of Homeland Security, and the consistent failure of CBP to hold agents accountable for abuse. No matter what CBP officers and Border Patrol agents think, our Constitution applies throughout the United States, including within this “100-mile border zone.”
You're right. I meant to say that international airports don't yield a 100 mile radius for the CBP to perform arbitrary stops. Shorelines count; the whole situation is ridiculous.
The customs bubble extends beyond the desk. For example, bonded warehouses.
What 4th amendment rights have you been stripped of in every coastal area? Show me how the 4th amendment isn’t a thing in Delaware. Don’t spend too much time though - it’s nonsense.
I said the Fourth Amendment issue is "on one side of the Customs desk at said ports of entry", not "in every coastal area". The idea that you are subject to warrantless seizure of intensely private data on American soil just because you haven't cleared customs yet is a travesty, and I'm glad this ruling has started to address that.
As for coastal areas, though, If CBP can stop me away from the border without a warrant and without reasonable suspicion of a crime, that IMO is a Fourth Amendment violation. The ACLU cites specific cases of this happening: https://www.aclu.org/sites/default/files/field_document/14_9...
> Between 2006 and 2010 in the Rochester, NY, area, approximately 300 immigrants with legal status were arrested by Border Patrol agents, then released
They also cite the regulations establishing the 100 mile rule: https://www.law.cornell.edu/cfr/text/8/287.1 defines "reasonable distance" and "external boundary", and https://www.law.cornell.edu/uscode/text/8/1357 utilizes those definitions to do things like "without warrant... interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States" and "to board and search for aliens... any railway car, aircraft, conveyance, or vehicle".
It's quite clear that significant parts (all?) of Delaware fall within that claimed jurisdiction.
That's nothing. Check out what the U.S. has done for centuries to misinform us all about the treaties it signed with indigenous tribes, technically binding under the Constitutional
> The United States Supreme Court ruled that Border Patrol agents may stop a vehicle at fixed checkpoints for brief questioning of its occupants even if there is no reason to believe that the particular vehicle contains illegal people. The Court further held that Border Patrol agents "have wide discretion" to refer motorists selectively to a secondary inspection area for additional brief questioning.
I think SCOTUS was wrong to permit those, too, but they're significantly different. Registration and DWI checkpoints rely on something outwardly visible/demonstrable; a sticker or signs of intoxication.
There's no outward sign of citizenship, nor are citizens required to carry proof of it.
Not sure how I'm contradictory. If you're a permanent resident, therefore you have a green card. That is a form of documentation you have to show at the CBP counter before they determine if you're lawful alien or U.S citizen. The line for U.S Citizens and permanent residence is the same. Every port of entry in the U.S has a sign that literally says - "U.S Citizens Or Permanent Residence". All other visa holders have a separate queue and detention usually starts after they've determined if a person has a valid visa or not or is a U.S citizen/permanent resident (green card)
We're not discussing ports, we're discussing so-called "interior checkpoints." The comment you're responding to said:
"Odd because I have been detained at CBP checkpoints inside the US"
You cannot stop a person inside the US and request they produce any kind of identification without first detaining them. The CBP detains everyone. If you prove you're a citizen, you can leave after being detained.
This is different than everywhere else in the country. It is the fundamental civil rights violation which is being objected to above.
How does that even work? I don't know anyone who regularly carries around their passport, or some other proof of citizenship. A driver's license or state ID isn't enough to establish citizenship, or even legal immigration status. (Though I suppose they could cross-reference your identity, based on the state-issued ID, with whatever databases have that information.)
They just ask most people if they are a citizen and if they look white enough CBP waives them past. If they don't CBP pulls them into secondary where they have a sniffer dog that alerts on their car allowing them to search the car and it's occupants at which point they will check their ID and run it through their system.
Personally I refused to answer, set the parking brake, turned the car off, and removed the key. They told me to go to secondary and I just didn't say anything and kept looking forward. Eventually enough traffic backed up behind me on the freeway they just waived me through to get traffic moving again. I know the courts have found it to be legal, but I don't care. I'm not going to comply. If no one complied they wouldn't be able to get away with this shit. Unfortunately most people don't care.
Lying to a federal investigator is an offense. It's usually how the feds get you if they can't make anything else stick (see Martha Stewart).
Usually with the border patrol stops a vehicle they ask if there are any non-citizens in the vehicle. If you lie at this point and they don't believe you it would likely give cause to investigate further. So either tell the truth or shut up.
Given that any documented not-citizens are supposed to carry their permanent resident card or passport with them at all times then the assumption is that any not-citizens are doing just that so can easily prove their status. Not everyone does and in recent years they've been policing this a lot harder than they used to and you can find yourself in hot water if you encounter the wrong officer (most cases you will get a very stern talking to).
So if you aren't carrying a permanent resident card or passport then the assumption is that you are either a citizen or undocumented. How hard they push to find out which depends on the bias of the officer making the stop.
Look up "stop and identify." You don't have to present any kind of documents if you're a citizen. You do have to identify yourself, and yes it's vaguely defined. Generally this means name and address. An ID will also provide this info.
The officers will call in your information, check warrants and resident status, etc.
I lived in Arizona, they have these checkpoints everywhere, many miles from the border. They just stop everyone and harass whomever they want. This is not "at the border", this is 30 miles up the freeway. They questioned my friend from India once, insisting he was pretending to be from that country, he was really from Mexico they said.
Stop traveling internationally with that phone: yes, very possible.
Stop keeping that information on their phone: not always possible. Many highly-secure places require you to coordinate with an application on your phone when authenticating. In my experience, there is rarely a non-mobile option presented to users.
I have seen in more than one remote first org handbook instructions to wipe your corp devices prior to border transit, and restore upon arriving at your destination.
Honestly this is where the current phone industry is letting us down with soldered on memory though.
This whole strategy depends on the fact that by the time you realize you might not want to have your "real" phone on you, you can't do anything about it.
From a technical perspective we need a phone where you can dump out the main memory chips and swap in a blank firmware image quickly.
It's worth noting that eMMC, which is the used as the "hard drive" of most smartphones, evolved from what was originally a removable media format: https://en.wikipedia.org/wiki/MultiMediaCard
I suspect it's possible to design a phone which entirely uses removable storage, but beyond devboard-like systems, I'm not aware of any.
In what world is it faster to tear apart your phone swap in random spare blank chips and turn it back on then to ask your phone to wipe its security key and mark all space as free?
True: a decent chunk of my annoyance is Android still doesn't have an "exact restore" function for it. A wiped android doesn't get all it's apps and my home screen organization back.
> by a competent attacker could compromise nearly every major corporation in America.
> Imagine if a foreign intelligence agency managed to get a border guard asset.
Sounds like a great reason for Corp IT to not allow anything too important to go on mobile devices.
(Which is already how Corp IT in most well-ran firms operates, not because they are afraid of compromised border assets, but because they are afraid of a million other, mundane reasons for why corp access on a phone can turn into a security and compliance problem.)
Direct corp net access from the phone isn't generally the risk here - typical BigTech corp employees carry a 2fac generator on their work phone, and that is supposed to secure access to both the corp net and the 3rd party password manager in which the corp net passwords are stored
I don't follow. This decision doesn't stop the Mexican or Canadian governments from searching the phones of people going from the US to Mexico or Canada. It stops US CBP agents from searching the phones of people entering the US. Are you saying the national security issue is that CBP might get hacked by an entity that then gets access to the phone scans? Or that Mexico and Canada will just reciprocate the practice?
If we search foreigners phones, that means we are OK with our own phones getting searched too. If our foreign policy is creating a "rules based international order" which Blinken certainly seems to say a lot, then rules for thee but not for me is a clear violation of that principle. I don't want my phone searched at borders which means I don't want to search other peoples phones at the border, particularly without a warrant.
Border agents with unchecked discretionary power is also a slight against rule of law and I think warrants are a check on that power. Maybe they are more checked than I believe them to be or have less discretionary power than I believe them to have. I am open to the idea that I am wrong.
Entering a country as a foreigner is a privilege and not a right, but you neglect the fact that entering a country as a citizen of that country is a right and not a privilege.
There is absolutely a distinction to be made between a foreigner and a citizen and their respective personal properties.
> There is absolutely a distinction to be made between a foreigner and a citizen and their respective personal properties.
But that distinction is not relevant in this case. Case in point: your luggage.
Try using your status as a citizen to refuse your luggage to be inspected for contraband or taxable imports when returning to your home country from one with which it does not share a tax and customs union, and see how that goes.
US agents not having access to travel devices means US international travelers can reduce their risk exposure. Travelers can chose not to visit countries that will search their devices. If the US searches phones, it is is much harder for a US traveler to manage the risk.
The US is in an extremely lucky geographical position; we're protected on the east and west by oceans, we only have one neighbor each to the north and south, and both of those neighbors are friendly. But as a result, we don't really know the languages or customs of other nations around the world well enough to do espionage; we're really not great at Human Intelligence (or HumInt). But we are the more technologically advanced nation, and our Signals Intelligence (or SigInt) capabilities are the best on earth by a wide margin.
(Interesting tangent: Russia is the opposite, and it's mainly geography and demographics that ingrained a KGB, HumInt tradition so deeply in their culture. The Russian state kept conquering different groups as it expanded across Asia and has had to manage a massive number cultures, many with their own languages, in order to avoid revolts).
So, as much as I like the idea of being free to take my phone to another nation without my rigorous digital hygiene routine, I know that the US is never going to cast off its great defensive and offensive SigInt advantages. And I doubt this kind of case could ever make it past an appellate court, because every appellate judge knows that limiting Presidential power in any way immediately dashes any hopes of making it the running for a Supreme Court appointment.
> But as a result, we don't really know the languages or customs of other nations around the world well enough to do espionage
Where do you get that idea? Pretty sure there are several three-letter agencies in the US that would disagree with that statement.
Learning the language and customs of a foreign country to a deep enough level to fool even people looking for you into believing that you're a native doesn't seem like a remotely intractable problem.
Looking back on my statement in your quote, I concede; it is literally incorrect. We are absolutely willing to spend the cost to make programs that generate skilled HumInt operators, attract or ensnare local sources, and maintain intel alliances that enable us to do HumInt espionage. Our military doctrine essentially requires that we develop pipelines that can enable us to churn out competent linguists in any language [0].
My point was more that this isn't a deep part of our culture (the way it is in Russia), rather I think we spun up a lot of these programs after the national security apparatus failed to stop 9/11 or divert us away from a pointless war in Iraq. Based on the instant collapse of the Afghan government without US troop support, I can only conclude that we lacked sufficient HumInt capacity to understand that context well enough to form an enduring strategy.
So my point there is more that HumInt isn't one of our natural strengths, the way SigInt is.
Small c compromise, not big C. These are invented toy examples, but when I say compromise I mean things like chat logs, public transportation/taxi ride history, supply chain attacks, etc.
If you want to think about the attack surface, look at companies that serve other companies and ask "what can someone with root on all of this companies machines do?" and more importantly "How mature are these companies security teams?" Imagine compromising a law firm, a public relation agency, or a newspaper. A VPN provider, a corpnet provider, or a cloud provider.
My password vault doesn't have my ssh keys, but it does have my no 2fac required github recovery tokens. Phones have a lot more than just security tokens. They could provide information useful for phishing or extortion, too.
I think you asked this because I used a rather grand example and that's fair. If I were to look at my post critically I think I under-stated both the potential security mitigations in place by competent security teams and the difficulty of really compromising someone's phone, and therefore somewhat overstated the problem.
When playing war games, you give your opponent every conceivable advantage somewhat grounded in reality, and I have given this idealized attacker the advantage of an incompetent security team, easy compromise of phone, and lack of political consequences for taking a phone out of someone's sight and/or compelling them to enter passwords by threat of force.
If you had an intelligence agency with a significant amount of APT penetration, you might look up every person who requests a visa on LinkedIn and determine if they can amplify the position of your APTs. Maybe you have compromised a taxi app or and and know what hotel they are going to and you can steal a notebook when they leave the room.
I think phone out of your possession is a credible attack, maybe less so today, absolutely 10 years ago it was. Pegasus is a thing, and there were definitely rumors that Chinese police had a little USB stick they could put into peoples phones that would install an app that then disappears from the home screen.
For as long as I can remember, it is hammered into every person who works around security that "no physical security means no security." Losing possession of your phone is the loss of physical security.
Right, I'm with you. I can totally appreciate what even small compromises can open up.
My wife's laptop just got compromised a couple of weeks ago, and I've been diving down the security rabbit hole of figuring out how it happened, what's going on on my network and my computer and phones etc. It has been a rude awakening as to the sheer amount of blind trust I've been placing in all my devices. After watching what network traffic comes and goes on my laptop and how much info gets recorded by the system I've come to the conclusion that modern OSes and browsers that aren't explicitly privacy focuses are basically spyware. My new mindset is 'assume everything is compromised at all times and treat it accordingly'.
I ran OSForensics on the machine last night. It was my first time running a tool like this, and I while I didn't manage to find a smoking gun, I did find some questionable files masquerading as an installer where there were all kinds of different files and file types but they were actually all executables. I wound up deleting those.
What I did discover is that by default Chrome captures and stores every field you submit to every form in a SQLite database. The amount of PII that turned up was absolutely staggering. If I could only exfiltrate one file from a machine, it would be that.
It sort of boggles the mind that that's a thing at all. I don't ever want to touch a browser ever again.
Most people need access to their password manager through their smartphone. Having an external TOTP generator do not help much if said system also allow fallback to calling or sending an SMS, which most do in case TOTP generator is lost.
So in many case 2FA is broken unless you decorelate access to app/password and sim card, which mean accessing your apps/systems through a second device instead of your main phone such as another simless phone, laptop, ipod touch, or tablet. Most people would never do that for conveniency reason...But in that case the same search rules/laws apply to second device anyway so it doesn't change anything to the core issue.
As someone far from any border, let me join in you a hearty "thank fuck" as well. This always seemed like a terrible and deeply unAmerican thing for the government to engage in. I'm all for oversight, including some that many find overbearing, but warrantless searches of your devices just for crossing a border is some post-9/11 hysterical nonsense.
You don't even have to be crossing a border. There's an area some 100 mile distance from the border that the CBP operates. It just so happens that a large percentage of the population resides in that area, so it can affect more people than immediately realized.
There's ones on either end of El Paso that always seem weird to me. They're clearly inside US territory on the highway and they're performing analysis on occupants of the vehicle as well as registration and citizenship. I've never heard of one 100 miles inland, not to say it doesn't exist but a maps link might be helpful. For example: https://www.google.com/maps/d/viewer?mid=1L872WkbWL11Zob-E9O...
> The federal government defines a “reasonable distance” as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Two-thirds of the U.S. population, or about 200 million people, reside within this expanded border region, according to the 2010 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.
Ah, I was thinking the land borders, which LA and NY are most certainly not 100 miles from. Didn’t realize they were including coastline too. But there aren’t any CBP officers or offices I’ve ever seen outside of the 100 mile land border range, so that’s something.
And I think you mean LA County, The city is around 120 miles. Regarding the county, Long Beach isn’t really LA - nobody from Long Beach would say they’re from LA.
The page you linked says that they need probable cause to search any property within the zone. That's different from when actually crossing a border, in which case property is generally subject to search without suspicion.
probable cause is whatever they say it is, so that's really not much of a show stopper. the only way you can prove it is not proper probable cause is through a lengthy (aka expensive) court battle after the fact.
This is no worse (or better) than any other law enforcement agency. What was being suggested is that there's a 100 mile border zone in which CBP may legally conduct searches without probable cause like they can at a border crossing; that's not the case.
The thing they can do that I find problematic is stop all traffic at a checkpoint and ask immigration-related questions without any suspicion whatsoever. This is conceptually similar to a DUI checkpoint, and I think the courts are wrong to allow either in the USA because they constitute a detention not based on reasonable, individualized suspicion of a crime.
Except 'probable cause' means that the search was in 'good faith' which is my understanding basically makes the officers involved practically immune, (even if you're awarded damages say), and at the very least makes it more likely to happen by them knowing they're off the hook either way.
sure, but leaning on probable cause to prevent the LEOs from doing something to you in the moment is not a sound practice. it will always be retrospective, and not everyone can afford to avail themselves of the legal remedy. the LEOs know this and behave accordingly
Sure, and I bet "probable cause" can boil down to nothing more than "I thought I smelled marijuana" if the particular CBP officer decides that's what they want to do. And from what I've read elsewhere, CBP leadership seems entirely uninterested in retraining or disciplining agents who go too far.
In theory, yes. But in reality, a non-citizen has much more to lose (being denied entry, which is a stain that remains on your record for quite some time) from arguing with a CBP officer about their rights than a citizen does.
The law is irrelevant when LEOs can side-step it whenever they want.
This goes for any law, citizen or not. Equal protection does not mean equality of costs. Some people will have more to lose by fighting a traffic ticket in court. It doesn’t mean they have less rights to do so. Saying the system is structured to be unfair is a different argument than saying the system doesn’t afford the same rights.
I'm American. I've always liked this way of describing things that we don't like. It somehow (to me) implies something. Maybe I don't know what that is, but it seems mostly anti-bad.
If anyone wants to hate on me, I think that HuAC was tragically misrepresented to the public, and the Hollywood blacklists should have been longer and wider. Sorry, but that's how I feel about it. Many of the jokers that ended up there were acting very irresponsibly and as if there were no consequences for their actions. The actions being a hidden alignment with an internationalist organization actively seeking to undermine the USA from within. (Something we can accomplish without any outside help.)
Because all international airports are "borders", and previously the warranty-less searches were permitted with something like "within 50 miles of a border", the majority people living in the US should say thank fuck.
I just replied to a sibling about the CBP's 100 mile zone (i'll post here again). For some reason, the airports do not seem to be mapped as part of this 100 "inclusion" zone. Otherwise, the included population would approach 100%. That's a bit of trivia I've never seen addressed before, so adding that to the list of things that make you go hmmm
It has never been the case that 100 (or 50) mile ranges from the border are open to warrantless searches; it's a myth spread by a misleading bit of ACLU promo material.
That’s not true. CBP has plenty of permanent and many more tactical search checkpoints throughout the country where you are subject to search. Many of these are 70+ miles from the border.
They are allowed to stop people who have crossed the border at (often permanent) checkpoints many miles from the border. They can ask to search anybody! And within the ambit of their authority they can probably search with reasonable suspicion. It's not my claim that CBP can't search you anywhere but the actual border, but rather that the notion that everyone living within 100 (or 50 or 12 nmi or whatever) miles from the border is subject to constant CBP search.
If you check this in the search bar at the bottom of the page you'll see this has come up a bunch on HN (it's a lurid and exciting notion to toss around!) and there are SCOTUS cites in the results.
"This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself."
[O]nly insofar as they involve a minimally intrusive “brief detention of travelers” with a “routine and limited inquiry into residence status” that maintains an immigration focus. Any secondary inspection (not a search) must be “made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy.” Further detention or questioning must be founded on reasonable suspicion of wrongdoing. Vehicle searches beyond what can be seen via ordinary visual inspection
are not permitted without probable cause or consent that has been provided knowingly and voluntarily and without coercion.
It is not my contention that CBP isn't abusing the law. I'm sure they are. Many CBP immigration stops apprehend no or single-digit unlawful immigrants while arresting dozens and dozens of citizens for things like suspected drug offenses. My contention --- well, not really mine so much as that of the Supreme Court and of law review articles about this case law --- is that what they're doing is plainly unlawful.
Probable cause stopped being a good-faith best effort and started being pro-forma beauracracy a long time ago, and courts regularly and reliably uphold this behavior. The only people who don't seem to understand this are law-text literalists. There's nothing illegal about what the CBP is doing; it's just shitty and unamerican. We're well into "the purpose of a system is what it does" territory here.
This is a message board trope in legal discussions. Either the law matters or the whole discussion is pointless; it's not a 100 mile zone, then, but a 1650 mile zone, because, after all, nobody is following the law anyways. That might even be the case! But if it is, we're not discussing anything meaningful here.
What is plainly the case is that many people believe that the law dictates that CBP can warrantlessly search citizens anywhere within 100 miles of the border (that border including the shores of all the Great Lakes). The law does not say that, the Supreme Court has repeatedly said that CBP can't do that, and people should stop repeating the claim that they can, because that claim empowers the CBP, which is already prone to abusing its authority.
But the bogus claim is head-turning, and presumably generates a lot of money for ACLU, because it's alarming and wrong-seeming (well, wrong, period, but...).
As I said before, the CBP believes they have legal authority for these searches, and they're performing them. All this bluster about the ACLU is irrelevant. These are the facts out here in the world, no matter what you say. Claiming they don't have the right is pointless noise, because everyone in a position to effect change agrees with them that they do. They even cite Supreme Court cases, just like you!
This confirms you didn't read the very first link I gave you. That confirmation discourages further participation in this discussion, since it's clear you're not actually interested in learning anything here.
Please don't spread misinformation about the ACLU. This is easily verified through google search. It dates back to 1952[1].
"The Immigration and Nationality Act of 1952 established that a "reasonable distance" of the border would extend "100-air miles" around the outline of the country. "
If you could do that without insulting the people, even if you don't mean it, then that would be hilarious. I have no problem with you playing that game with the system, but they are still real people that you're interacting with.
I am absolutely allowed to insult the person, who is overstepping his authority to physically detain me. In fact, I am morally allowed to do much more. There "real people" are attacking me, and the rights of everyone here. This is a defense, and a very mellow form of it.
there are normal border patrol agents who don't go on a powertrip, and follow the letter of the regulations. This is 90% of my travel. Then there are ones who see you chewing gum after 12 hour flight breath, think you are disrespecting them, and make your life hard. They get the offensive defense, because they initiated an attack.
Try this: fly 50 times a year, only answer questions you have to answer, not all questions asked, and see what happens 10% of the time on re-entry. If regulations were followed by Our Employees, nothing at all should happen. but it does. When it does, you can spend hours writing complaints no one reads, or you can make the offender's life as bad as you possibly can, with words and passive action.
What you are suggesting, is a slow quiet path to tyranny.
Allowed, yes. Doesn't mean it's right or even preventing tyranny. You aren't insulting the people making or passing the laws/rules/etc, you're insulting the people acting on those laws/rules/etc.
There is no overstepping authority if they actually have that authority. That doesn't mean they should have that authority, but they do, and thus they're not overstepping it. They're just using the tools at their disposal to get back at someone who is being an ass.
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This is good, and I hope it stands. Once you demonstrate that you are in fact a citizen of the US, you cannot be denied entry, and IMO all the regular Constitutional protections should immediately apply.
I got an interesting perspective on citizenship late at night at a remote Canadian border post.
While I have dual citizenship, I live and work in the US, and nearly always travel on my US passport.
The boarder guard gave me a hard time about traveling with my children and without my spouse, but after ascertaining that I wasn't abducting my own children in a custodial dispute, let me in, and then got chatty.
He said something along the lines of, "I could tell you were annoyed that I had to call your wife, but if your kids ever went missing, you'd be glad that we checked."
Since we were just having a chat and he seemed friendly, I let him know that I was a dual-citizen, and asked a few questions I'd had about dual-citizens crossing boarders. One of them was, "would it have made any difference if I was coming into Canada as a Canadian, instead of an American?"
His answer was, "As a foreigner, I can deny your entry into Canada for all sorts of reasons. As a Canadian, I have to let you into Canada so long as I don't have reason to doubt the authenticity of your citizenship. Basically, if I think you're a foreign criminal, I can deny you entry. If I believe you're a Canadian criminal, I have to let you in then arrest you."
BTW, he also let me know that the biggest reason that dual-citizens should travel on the passport of the country they reside in is hassles over import duties. AKA, if I'd been entering as a Canadian driving a US registered vehicle into Canada, he would have been suspicious that I was importing it, and likely to charge me import duties, or at least given me more of a hassle about making sure it was going back to the US at the end of our weekend camping trip.
>BTW, he also let me know that the biggest reason that dual-citizens should travel on the passport of the country they reside in is hassles over import duties.
It's important to add the caveat that different countries have different views on this. For example, my understanding is that while the US does not ban dual citizenship, it is illegal for a US citizen to enter the US on a non-US passport.
I believe there was discussion on this in an HN post some months ago, and the consensus seemed to be that, while technically illegal, the law does not provide for any penalty for doing so[0]. At worst, you'd be denied entry, and then would present your US passport and be let in. (If you didn't have it, it would be more of a pain, but eventually you'd be let in after proving your citizenship through other means.)
I think the bigger issue with trying to do this would be getting an ESTA/visa for US entry on your foreign passport. Anecdotal reports seem to suggest it's possible, but apparently there's a question on the ESTA form asking if you are a US citizen, and if you say yes, they're supposed to deny you.
I don't think the officer was over-reaching in this case. Kids are a complicated matter since if you "abducted" your own kids the first thing you'd do is run out of the country. Of course, no officer will want that to happen on his watch.
Obviously, if my children were ever abducted, I'd want every law enforcement officer everywhere looking for them, and doing whatever was necessary to find them.
On the other hand, I dislike the construct that I as a parent am required to have a "permission slip" from my wife to take my kids camping north of the border.
Honestly, I think this could pretty easily be solved with a technological solution. Just some (optional) system where parents can alert the government of neighboring countries "I trust my spouse and they can cross the border with my kids at any time" or "we're in a custody arrangement/domestic dispute don't let them through!"
Tie it to the digital info they already have related to passports, and this becomes frictionless.
I had this happen to me too, and it was really strange. The border dude looked really pissed off at me. He didn't call my wife or anything, just berated me for a while (for what?? for driving up to Canada?). Very strange. He didn't check on anything additional at all, just yelled at me for a while (for not having a wife in the car??) and waved me through.
> Once you demonstrate that you are in fact a citizen of the US
As history has shown[0], this is easier said than done. Legally US citizens can't be deported or denied entry, but that sure doesn't stop the government from trying!
…and just to add to this list (and to get back to "deny entry into your own country"), … it doesn't stop the government from putting you on the no-fly list to prevent you from testifying at trail against the government.[1] (I believe the government claimed this was an "error", … but that's exactly what you'd say.)
[1]: https://www.aclu.org/wp-content/uploads/legal-documents/lati..., "The bench trial then began on December 2, 2013. On the first day of trial, before opening statements, plaintiff’s counsel reported that plaintiff’s daughter — a United States citizen born in the United States and a witness disclosed on her witness list — was not permitted to board her flight from Kuala Lumpur to attend trial, evidently because she too was on a no-fly list." ; https://reason.com/2013/12/04/wanting-to-testify-in-no-fly-l...
No, the injured party (the woman denied boarding, the daughter, and thus, denied the ability to testify) was a US citizen. It's right there in the quote pulled from the legal doc.
(IIRC, the mother was also on the no-fly list, and that was context of the case itself, even. One could rightly also refer to her as an injured party too.)
The quote is from the first document. Again, yes, the mother isn't a US citizen, she's not the focus of my comment, the daughter is. The daughter is a US citizen, and she is additionally mentioned in the document.
The daughter immediately received remedy from the court. The mother did not despite her far more severe injuries because, as you now admit, she was a nonimmigrant alien outside the US.
The Constitution doesn't specify that due process necessarily involves the judicial branch. Al-Aulaqi v. Panetta cited precedent that civilian courts should not interfere with the military chain of command and that warmaking and national defense powers lie with the executive and legislative branches. In this case, the executive informed the congressional oversight committees more than a year before the assassination.
>The Constitution doesn't specify that due process necessarily involves the judicial branch.
Doesn't the 5th amendment specifically guarantee the right to indictment by a Grand Jury for 'a capital or other infamous crime'? Or was this considered moot because the same amendment gives a caveat for a 'time of war or public danger'?*
Your link seems to recognize this distinction and seems to sidestep the 5th amendment question by narrowing the scope (although I admit I haven't read it all in detail):
>"The Court recognizes that its holding regarding the political question doctrine is inconsistent with Judge Bates’s decision in Al-Aulaqi v. Obama. That earlier case alleged that the United States’ intention to kill Anwar Al-Aulaqi violated the Fifth Amendment. In contrast, the instant Complaint raises the issue more directly and acutely, asserting a claim for damages for the actual taking of Anwar Al-Aulaqi’s life without regard to Fifth Amendment protections."
*this obviously adds some additional risk to perpetual 'global wars on terrorism' and the ability to rules-lawyer your way into any outcome you want
The border search privilege applied at the time of the founders, so it's hard to argue that it's constitutionally invalid. And, in fact, this ruling upholds the border search privilege; it just sets electronic devices outside of their reach.
Exactly. It's a nuance most people don't understand.
If you're crossing a border, customs having the right to search you isn't a silly idea - the government has the right to enforce customs and tax/duty laws. Being able to search items you are bringing across the border is in line with that.
Where I think the nuance comes in is that carte blanche search rights don't make much sense in a era when they can search you electronic devices that aren't really related to customs and tax/duty laws.
The article actually talks about all of this and explains the why. Without repeating everything, the supreme court already makes this exception for cellphones domestically -as in police can search, let's say, a car but need warrant for the cellphone in the car. Makes sense to extend the same distinction to the border. That's all what the EFF is asking. But SC has refused to take it up.
The argument here --- and we'll see how well it holds up on appeal --- is that searching a cellphone at the border is a little like driving to your house after your cross the border and searching it before they let you leave the border crossing.
" Once you demonstrate that you are in fact a citizen of the US, you cannot be denied entry, and IMO all the regular Constitutional protections should immediately apply."
I am not a constitutional scholar, but very few of the rights given to the government specify citenzry as important. Most of the rights specified as not granted refer to people or persons, not citizens.
So your sentence should be "once you demonstrate that you are in fact a person in the United States..."
Well technically, the border agent is in the United States. You, presenting your passport are outside the United States and requesting entry. This has consistently been the basis for the "border exception". By requesting entry, you place yourself under the jurisdiction of the border officer however you are not physically present in the US, so you do not benefit from its legal protections.
It's a nice rhetorical question, which is why I raised it.
In practice, it's probably like the county in Idaho in which a law professor once posited you could get away with murder[0] because there'd be no "jury of your peers" to convict you.
> By requesting entry, you place yourself under the jurisdiction of the border officer however you are not physically present in the US, so you do not benefit from its legal protections
This doesn't sound right - if it was true, border officers would be free to mug and rape.
A non-citizen doesn't have any inherent right to enter the country at all. If they are allowed to, it's a privilege generously granted by the state—and as a privilege, it's entirely conditional and revocable. That being said, guests of the country must always be treated fairly and honestly, just as you would treat a guest in your home.
No, they are 100% correct. People who want to enter the country are not visitors in the US, by definition. And the comment didn’t say that even aspiring visitors to the US have no rights - it said they have no right to enter the country.
They didn't claim visitors in the US don't have rights. They -- correctly -- claimed that border agents can refuse to allow entry to visitors for any (or no) reason.
For comradery, I'm loving where this is going. I do wish we more consciously accepted that all persons have inherent rights. Looking forward to a world gov that tries to do good things someday... a la Bicentennial Man.
According to the UN declaration of human rights, Article 13 specifically, which the US signed onto, we actually shouldn't even be able to block people at the border.
"Everyone has the right to freedom of movement and residence within the borders of each state."
You are misunderstanding that. It's "within the borders" not "across the borders." The second clause of Article 13 grants rights to leave countries, and to return to "his" country, which implies a right to deny non-citizens entry.
That countries can (as a rule) deny non-citizens entry for whatever reason they so desire should be obvious.
That says the opposite of your claim. "within the borders of each state" Once you wish to cross into another state (nation or country) your freedom of movement is subject to limitations
> This is good, and I hope it stands. Once you demonstrate that you are in fact a citizen of the US, you cannot be denied entry, and IMO all the regular Constitutional protections should immediately apply.
I'm chuffed about this, but I won't celebrate until the decision applies to non-citizens crossing the border too. Right now a border official can tell a non-US citizen to do absolutely anything, and if they fail to comply they can simply be denied entry, with no reasonable right of appeal, no matter how unreasonable the border official's request. Border officials do and will continue to abuse that privilege until reined in.
Yes you will enter the country no matter what, but people should not forget that a CBP inspection during entry is still a law enforcement encounter and could result in criminal liability just like any encounter with police.
serious q, i legit don't know about these things, what about that ambiguous gray area i see so-called freedom auditors use where they argue that the Agent has no reason to suspect they are not american, (and they repeat am i free to go/ am i being detained)
I can't honestly see how there is grey area, you're at a border checkpoint: show some form of identification either way?
There is no requirement for an agent to assume your nationality and let you through, no? You still need to show your passport even when returning home.
Of course, all this sovereign citizen nonsense ignores reality and tries to pursue (nonexistent) legal 'gotchas' like you're rules-lawyering your way into a 'rules as written' game breaking combo in Magic: The Gathering.
True as such, but remember that universal passports have been around for barely more than a century. In previous eras entry to a country was not considered important government business other than during wartime. That all changed in 1920.
There have always been border controls. Before precise land borders became a thing, the checkpoints were more likely to be at natural bottlenecks such as bridges, mountain passes, harbors, and city gates.
Even in the period of supposedly free international travel before WW1, the US government barred a large number of people from entering the country.
I don't think the grandparent is talking about the requirement to present a passport at a port of entry (airport, border land crossing, etc.). They're talking about CBP checkpoints in the interior of the US -- like, on a random highway well inside Texas or Arizona -- where they stop everyone driving by and ask them if they are US citizens.
There are plenty of videos on YouTube of people sitting in their cars and just repeating "Am I being detained?" and "Am I free to go?" over and over until the CBP officer gets tired of it and lets them go. As should be the case, IMO; the existence of these checkpoints is absurd.
Well the evidence is there on youtube if you'd like, lots and lots of videos of border patrol letting people go who show no ID at all. Seems to support the auditor's POV.
I have no dog in this fight, just an intellectual curiosity.
I don't really trust YT as a source for any kind of facts. CBP is pretty specific about documentation required to enter the country. If you're a citizen and you lack any documentation, you're going to be sitting around for hours while they determine (to their satisfaction) that you're who you claim to be.
It would also only really apply at a land crossing, I imagine. You can't even get on a plane that's entering the US without showing your passport at the departure gate. At that point your only option if you really are without documentation is to find the nearest US consulate and get some travel papers.
We're not talking about entering the country; we're talking about CBP's absurd "interior checkpoints". They'll set up roadblocks on a random highway well inside Texas or Arizona or whatever, and stop everyone driving by to ask them about their citizenship status.
You don't really have to "trust YT" here; there are plenty of videos of the encounters themselves, where people stubbornly refuse to answer the CBP agent's questions until the agent gives up and waves them through. Sure, you can argue that they're staged or something, but the sheer number of them would at least put some doubt on that claim.
> CBP is pretty specific about documentation required to enter the country.
My last flight to Seattle from Mexico a few weeks ago (also, note that I'm an LPR, and not a citizen) I walked up to the CBP immigration counter, looked at a webcam, the officer looked at his computer, said "[my name]?" "Yes." "You're good to go."
I had, of course, my passport and green card on me, but they were held by my side the entire time. He didn't ask for them.
They have linked your face to the photo in your passport/green card. By looking into the camera you agreed for them to perform the lookup of your ID. It is probably more secure than looking at a physical ID that could be fake.
green card holder here, this exact thing happened to me last time i flew into US from EU. i even asked the CBP guy, "you don't need to see my passport or green card"? "nope" was the response as he waved me through.
Can confirm. I’ve been through a number of those checkpoints in SW Texas. You stop they ask a question or two and then you’re waved through. I’ve never been asked to show ID. On one occasion they did have a dog walk around the car but I think that is done randomly.
Fair, that was a knee-jerk reaction on my own part and I'll own that; that has just been my exposure and experience to questions in that vein so far in my life.
In any case, the 'Freedom Auditor' concept mentioned in your initial comment sounds, to me, like the express line to "Please wait over here while I get my supervisor" from your CBP agent.
“Am I being detained?” is a bit of a meme/dog whistle associated with Sovereign Citizens so I was going to ask you about if “Freedom Auditors” is just another term for them up above until I saw this follow up comment; but Googling it just turned up First Amendment auditors which does not appear to be the same thing. Many of them are libertarians and think they’re Constitutionalists.
Please clarify if I’ve got the wrong read on what you mean though.
It’s also a very basic question to ask. Once you have been arrested, there is a procedure to be followed and you will probably choose to get a lawyer. At the same time, they can’t detain you for longer than is reasonable without officially arresting you. So some may try to exploit the ambiguity of a situation to make you think that you are not free to leave, but without explicitly detaining you. Asking this question forces them to start engaging in the proper procedure for detention or arrest, or admit that you are free to go.
That is reasonable and solid life advice, but seeing it in a sentence with a phrase I don’t know like “freedom auditors” still leaves me confused as to the meaning of the latter, and that’s where my mind went first until I saw the parent’s follow up.
Like I said, the best I’ve found is some information on a movement of “First Amendment auditors” but a literal reading of what they’re about has them testing First Amendment jurisprudence which isn’t exactly stress-testing your Fourth Amendment rights in an reentry line at the border, hence the request for clarification.
I'm neither a Sovereign Citizen or Constitutionalist. I've used the "Am I being detained?" question whenever the LEO starts to get too informal with me with leading questions.
IANAL, but it seems to be pretty well documented and agreed upon internationally that one must produce documents to enter a country. To arrive at a border crossing or port of entry and assert the border agent does not have probable cause to ask for documents just doesn't really seem like a grey area at all.
The "freedom auditors" are expressing their rights to doing things that are _defined as legal_ but regularly infringed upon (taking pictures of public property like police station lobbies, post offices and libraries). Refusing to show documents at a port of entry isn't ever defined as legal, AFAICT.
Now, this federal ruling is kind of unrelated. It's not about asking for documentation, it's about the ability to search an arrested person's phone after they've been arrested.
The ID requirement to gain entry is fairly specific. I can't imagine CBP just letting someone through without it. I understand some people do the 'am I free to go' bit with local police, but that's after you're inside the country.
To be clear, I think it's 100% okay for the border patrol to require proof of citizenship at the border. I just think that the moment you prove it, the border patrol becomes just like any other federal police force, no extra powers just because they're at the border.
In actual practice though they don’t. If you walk across the bridge from Mexico after a night out 99 times out of 100 they’ll just ask your citizenship verbally and if you speak English without an accent they wave you on.
Obviously you can come back into the country without a passport/ID, it’s just a hassle. It’s not like they send you back and now you have no citizenship.
They have a process for this, it just takes a long time to manually confirm you are who you say you are.
For anyone wondering, this is what I do personally: for the iPhone, you can have it pair locked (1) with a MacOS (obviously one isn’t accompanied with you during the travel) that way they can’t -even if you were foced to unlock it- they can’t image the OS for further forensics, as that’s usually the case at borders, you wait an hour or two until they copy the image, or worse, planting some malware. This doesn’t work for Android btw.
For laptops, as I mentioned in another comment, using plausible deniability (veracrypt provide such functionality (2)), where you can login to a decoy OS if you were to be forced, keep in mind some deep forensics might give an indication that there’s another OS hidden and encrypted but very hard to do so.
Also, EFF guide from the article below on about the borders (3)
For those wishing to do this, keep in mind you should not then travel with your iPhone AND the device you pair-locked your phone to (your laptop, for example). This may be obvious but is important.
Not great for Walmart's employees, though. Which is similar to many objections against using Amazon.
(No moralizing here, though... I use Amazon pretty frequently, even though I know how poorly they treat their warehouse employees and delivery drivers.)
Kind of - Walmart stuff is lower quality so while it’s cheap at the time of purchase you buy more frequently and spend more long term. Many people can’t afford to do otherwise but I’m not sure I’d describe it as good.
Apparently, it's gone now.. :-( Maybe I should just start using Walmart and other options instead... I'm seeing way too many "sponsored" results from Amazon lately (6 or the first 8 the other day).
Please note that this specific ruling was still that the motion to supress be denined, because the agents thought they had a legal right to search the phone and because they later got a warrant for the contents of the copy they made, so the defendant still got fucked even though his rights were trampled, simply because the agents were too fucking ignorant to know that what they were doing was illegal per the SCOTUS 2014 decision.
td;dr: government agents can use ignorance of the law to get away with breaking it
--
a quote from the decision:
> Nonetheless, that still leaves the question whether to suppress the evidence from such an unlawful search. Here, the Court determines that the “good faith” exception precludes suppression, both because at the time of the search, the agents conducting the search had an objectively reasonable basis for believing that there was legal authority binding on them that authorized such a search and also because the Government ultimately obtained a search warrant to search the phone copy, disclosing all relevant details of the search to a neutral magistrate. For these reasons, further elaborated below, the Court reaffirms its prior denial of Smith’s motion to suppress.
Shouldn't the consequence of the agent not doing their job be that the agent gets fired? Why should a criminal benefit? If his rights were violated, he can sue.
It's of course absurd that the law was ambiguous enough in the first place that a warrant wasn't obviously required and it took the Supreme Court to resolve this.
But the search in this case happened in 2019. How was the agent supposed to know what the Supreme Court would decide 4 years later after many appeals? The agents were acting reasonably enough, according to the law, that it took the Supreme Court to resolve it. This isn't a clear case of an agent not doing their job as it was defined. For example, we're also not going to retroactively fire all the other agents that also conducted searches like this even earlier. (We're not even going to overturn rulings of people convicted on evidence from warrantless border phone searches, since these Supreme Court rulings aren't retroactive. That's the worst thing about this in my mind).
But after this ruling we can now definitively say that agents conducting warrantless border phone searches are not doing their job and should be fired. The evidence would now be thrown out in court anyway.
One of the consequences of an agent being bad at their job is that they accidentally put the wrong person in jail for a crime. Because some of the drafters felt that it was more important to protect the innocent, they decided to put the onus on the government to follow procedure when trying suspects.
The government's argument here is that if the agents knew they had to obtain a warrant to search the phone, they would have held the individual, or just their phone, until they got the warrant and it would have been searched anyway. If they were unable to obtain a warrant then the phone's contents would be suppressed.
While it's now clear that warrantless border searches of cell phones are illegal, the very fact that this took 4 years and had to go all the way up to the Supreme Court to determine this means there was ambiguity. It's not that the agents were "ignorant of the law", it's that the law was unclear on this aspect. If agents were just ignorant of well established law this never would have made it to the Supreme Court.
And these decisions generally don't apply retroactively since it would be incredibly disruptive. For example, if they were retroactive then in states that have always had laws outlawing abortions on the books, abortion doctors could be charged for crimes after Dobbs v Jackson overruled Roe v Wade. (Previously, Roe v Wade nullified those state laws).
Of course, I absolutely agree with your sentiment. It's absurd this was ambiguous in the first place and that it took this long to establish that these warrantless border phone searches were illegal.
I get the technical aspects are complex, but it’s ridiculous to me that this argument is accepted, I don’t care what explanation there is, law enforcement won’t remember or care about some case that ended in their favor, but if the judge has set a hard line and suppressed the evidence, I bet law enforcers would get some training on this topic. We need to make laws less complex where our basic rights are concerned. It’s alright, maybe, to have complex corporate tax codes, but for the basic bill of rights subjects we need simplicity for the people to really understand their rights.
Thanks for the good response by the way, I like that we can discuss this like adults!
Government agencies can use ignorance to get away with breaking the law, but for everyday civilians, ignorance is no excuse and you might in fact be judged more harshly for not knowing. Funny how that works!
Great news. How does this affect the 100 mile border zone? Technically, if one is within 100 miles of the border, the federal government asserts certain rights to conduct warrantless stops and searches. See:
There is no such zone. That page is misleading. There is SCOTUS case law back to the 1970s establishing that a border search must have a nexus to an actual border crossing; you can't simply search anybody within some distance of a border.
Please advise CBP of this, because that particular part of the executive branch (and the DoJ) have a more maximalist take on the issue, notwithstanding the tenuous legal foundations on which which their claims rest.
I'm reading this now and already you run into the issue of it claiming that Chicago would fall within this supposed extended border zone, despite not being anywhere close to 100 miles from 12 nautical miles from the baselines of the United States, per 8 CFR 287 (this is an analysis I've shoplifted from 'jcranmer).
That said: the rotating CBP checkpoints around places like Tucson are, as this article observes, probably unlawful! You've got Almeida-Sanchez that says straight out that warrantless evidence collected from intrusive searches far from the border without any reasonable belief of a recent border crossing are inadmissible, and then you're left to figure out how to deal with the harassing impact of these checkpoints on locals.
I'm not here to stick up for CBP. I've had only bad experiences with them. But also, I don't live within a 100 mile "Constitution-free zone", no matter what ACLU may claim.
Start on page 404 of this to see it basically reciting the same argument I'm making.
Per page 399 'Although Chicago is well beyond the 100-mile limit for CBP activity, the entire city (and 100 miles southward into Illinois) are all subject to extended Border Patrol enforcement authority and the “border search exception” because Chicago is adjacent to Lake Michigan, which is considered an “external boundary.”'
I don't think the ACLU is claiming the 100 mile zone exists de jure but rather that CBP and successive executive branches rely on a specious claim, it's extremely hard to sue them, and so the 100 mile zone is a de facto reality. You can of course tell a CBP agent to get bent and that you'll fight it in court, but (assuming you're driving) you'll probably stop if waved down.
I agree with your legal analysis, but absent a court or executive order explicitly stating the CBP has no such authority, they act as if they do. It is this reality which the ACLU is describing, howbeit shallowly.
Right, and I'm observing that 'jcranmer went and looked at the statutory definition of "external boundary" and it conclusively does not not include Lake Michigan; I even cited the statute for you. :)
A reminder here that Lake Michigan is entirely bounded by the United States. I think it's as internal as the Great Salt Lake.
The times I’ve seen Lake Michigan claimed as an external entry point it’s because you can come by boat from outside the US to it.
This is of course ridiculous because by that definition lots of US cities sit next to that sort of body of water including any city on the Mississippi.
i’d have to go back and double check my facts here, but i seem to remember border patrol agents going after protesters in Portland during the George Floyd protests and something to do with Portland being within this 100 mile zone.
again, i’d have to go back and double check this.
edit: unfortunately i’m at work and due at a meeting so i can’t deepdive, but here’s a couple of links expanding on agents, Portland, and the 100 mile zone (the latimes is an oped but it links to more info):
President Trump certainly shouldn't have deputized CBP tactical teams to do internal law enforcement tasks inside cities, but it's worth pointing out that CBP's authority to conduct routine law enforcement under the same authority as, say, a local police officer is a much grayer area than this "100 mile Constitution free zone" stuff. CBP shouldn't be grabbing rioters or protesters or activists off the street at all, obviously, but if they're doing it based on the same probable cause a local police officer would be using for the same stop, they're not implicating the border search exception.
Sort of? A lot was said about EGBERT v. BOULE, initially that it allowed CBP to simply search any home within 100 miles of the border. There was then a big pushback, that it didn't actually allow this but simply limited folks options to sue in these scenarios which is different from allowing it.
This was not a simple case of trying to sue for some damages, like breaking a door down or technically violating rights by entering without permission:
> When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave.
> Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egbert’s supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule.
In a sane world CBP agent Erik Egbert would be in prison but he wasn't even fired. The supreme court saying they're not technically condoning the behavior but denying the plaintiff any ability to sue seems like a distinction without a difference to me!
I was being unclear. If a New Yorker flies in from, say, London, goes through customs, etc.. returns home to their Manhattan apt, a nexus has been established.
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.
A reminder here that our common understanding of the term "warrant" is not that of the 4th Amendment, and the Constitution has never forbade warrantless searches ---
only "unreasonable" searches, where "unreasonable" is almost a term of art meaning "whatever judges agree to", and which currently capture a whole bunch of specific kinds of warrantless searches, like searches incident to arrest and searches at border crossings, many of which were also employed at the time of the founders.
The warrant clause of the Fourth Amendment was a response to the "General Warrant", an instrument issued by the British government to local officials that was essentially a license to harass at will; that's why Constitutional warrants have to describe particular places, persons, and things (because that's what General Warrants didn't do).
One thing that has always confused me on this is - how can an agent enforce a law on a person if that person isn't within jurisdiction of that law, whilst at the same time that person isn't entitled to the rights that they would have within that jurisdiction.
Basically, how can you enforce a law on someone and at the same time ignore the rights that apply to someone where that law can be enforced.
If the person hasn't entered the country, then the law of that country doesn't apply. If the person has entered the country, then the rights and protections of that country also apply..
That sounds a bit like an overreading into technicalities.
It makes sense for border control to exist to _some_ degree. That means that property and potentially people will need to be searched. It also makes sense for border entry points to not exist at the moving shore of a nation or in the actual air.
That means that an administrative concept should exist where people on one side of a line are considered to be have been granted entry and people on the other side aren't -- even if both sides of the line are within a nation's territory.
That administrative concept can be (but can also not be) compatible with both the goals of human rights and with the goals of nation states. And at the end of the day, laws should be more focused on achieving goals than fiddling with nitpicking.
Curious if this also applies to Laptops ? This quote does not mention the scope of the ruling, but to me, the article leaves come confusion to my question:
>The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices
"The Supreme Court has not yet considered" simply means that the court hasn't said anything either way. It isn't meant to imply anything about what position they might take if they considered it.
i act as a bit of a paranoid nutter and actually shut off my laptop when flying international. it's pretty much the only time i do that. the question is not answered to my satisfaction, so that's the choice i make in response.
What does shutting it off do? As far as I understand, they can still require a search. I had it happen once when entering Canada, they said if I didn't consent to the search they would confiscate my laptop. I let them search it, and obviously they didn't find anything incriminating, but it felt so violating watching them go through all my personal photos.
No. They did it in front of me and all they did was run a search for JPG and PNG images. Then they went through all of the pictures. They did not attach any hardware/cables to the computer and they did not connect it to a network.
That said, this was years ago. I have heard that they do try to clone the drive now.
with this concept of testing for actual electronic equipment vs nefarious object disguised as an electronic device my protections of shutdown still hold
Turning it on without logging in does not decrypt the FDE volume though. I'm only turning it off to ensure the decryption keys are not in memory. There's nothing on my laptop that would land me in trouble, but they're going to need a $5 wrench to get access. The day that happens, we'll know if it will need to be used, or if the mere presence of the wrench is enough
My approach is to replace the SecureBoot keys with one of my own signing, and sign my own bootloader. Have it boot into Windows unless a specific key combo is pressed, otherwise have it boot into Linux and require a password to decrypt the drive.
Plausible deniability and FDE (for the partition you care about at least).
Only time I was ever asked to login was in Morocco. It was an older agent and I assume he just wanted to make sure it wasn't a fake screen or something.
That’s why I use plausible deniability utilizing some software similar to veracrypt. If forced, you can enter the password for the fake OS, login and nothing in there except some sunsets pics.
Maybe this will be good for tourism. The TSA digging into your laptop or phone on a whim (or racial profiling) might not be a welcoming experience for a lot of people.
Brazil had a special queue for US visitors in early 2000s, forcing them to get fingerprinted, as a reciprocating policy. I doubt the fingerprints were actually digitized or stored - it was likely more to annoy people into pressuring their own government to stop treating Brazilian nationals in that way when visiting the US.
One of my friends had her phone searched while crossing the border, and they used jokes she sent as text messages to give her a 10 year ban. So I know very well the dangers of crossing the border with data on your phone.
So if non-citizens are entitled to warrants after entering a country illegally, how does this fare to the warrant-less five-eyes surveillance against non-citizens that have not committed any crimes?
I think it should be that rights from the US Constitution should apply to:
- anyone inside the USA borders/waters
- and any citizens of the USA no matter where they currently are (obviously only affecting the actions of US Government, government of Thailand of course wouldn't be bound by US Constitution).
But the Supreme Court disagrees with me on parts of that. So I think the answer to your question is "whatever the Supreme Court says."
as far as I'm concerned the entire EEZ would be covered. If the government assert it's their territory to profit from, the same rights go along with it
The case concerns a resident US citizen reentering the United States at a normal port of entry. The judgement explicitly doesn’t address whether the same arguments it makes apply to non citizens or non residents.
This says absolutely nothing about the rights of noncitizens detained after illegal entry.
In the first half of your question you clearly show that non-citizens outside the US aren't protected by the constitution. And the vast majority of the world are non-US citizens outside of the US. So you can pretty much spy on anybody and be consistent with this decision.
They're actually completely separate topics handled by different areas of the law. It's like seeing a case about whether an officer can pull over a speeder and the questioning the legality of titling fees.
> The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices
We need additional ways to create standing in courts
It is ridiculous that a constitutionally contradictory law or policy can remain in the books for decades, just because the right rich person hasn’t been inconvenienced enough by the law to challenge it
In some countries, the President can get a law evaluated for its constitutionality as an additional choice than just vetoing or signing. We could start there.
Your last sentence is an interesting idea. But the "case or controversy" requirement for justiciability in federal court, which represents a limit on the power of the federal judiciary, comes from Article 3 Section 2 of the Constitution. It is a hard limit beyond which even Congress cannot grant additional power. Congress can limit the power of the judiciary to hear cases more narrowly than the Constitution does, e.g. the diversity / federal question requirements for federal jurisdiction, which are Congressional limits on the power of the federal courts.
Your plan could potentially be accomplished by amending the Constitution but I do not think Congress could pass such a law.
A good step at least. In my oppinion searching of smartphones means almost the same like searching one's actual brain or even more. This should never be allowed under any circumstances, not even for a very legitimate suspect or convict.
Enough of the "constitutional-free zone" in the USA
If law enforcement wants to be taken seriously it needs to behave like this isn't actually a dictatorship. They have massive powers already without this nonsense.
Good. A Canadian border officer searched my friend's phone a few years ago and interrogated her based on the contents. She ended up getting denied entry. Totally invasive and her intended trip was innocuous.
Will still not help anything with the unlawful US ~45.000 searches a year by the Customs & Border Protection (CBP). They believe they are above the law, as most politicians and security agencies.
To clarify: does this mean Canadians visiting the USA don’t have to worry about their devices getting invasively searched/cloned at the border any more?
INAL but I would say, if you are not a US citizen, you still should be worried. Sounds more like the only thing that has changed is which agency is doing it now.
It should apply to interstate domestic travel in the US, of course once identified as a citizen. That said, iirc, something like 90% of the US populace is within 100mi of the border (including ocean).
IANAL but IIRC the definition of the constitutional "people" is broader than US citizens. SCOTUS has answered this question in connection with the 2nd amendment. I wasn't able to find the case but the meaning of "the people" is taken to mean members of the broader national community. People who have developed sufficient connection to the United States, e.g. Lawful Permanent Residents.
I know people who have two factor codes and password vaults on their phone's that if compromised by a competent attacker could compromise nearly every major corporation in America.
Imagine if a foreign intelligence agency managed to get a border guard asset.
Even from a reciprocity point of view, if we search other people's phones, that sets expectations that ours can get searched too. It's dangerous precedent all around.