back to article Hey, those warrantless smartphone searches at the US border? Unconstitutional, yeah? Civil-rights warriors ask court to settle this

Civil rights groups including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) have pushed this week for a US judge to declare the search of mobile phones at America's borders to be unconstitutional. In a request for summary judgment [PDF] in a case that was launched back in 2017, the …

  1. Anonymous Coward
    Anonymous Coward

    IIRC, this applies anywhere within 100 miles of the border which means it applies to most people in the U.S. all the time and should be made loud.

    1. ITS Retired

      And even though it is not legal or official, the Border Patrol also say they have authority withing 100 miles of every international airport. No they don't.

      1. kain preacher Silver badge

        And even though it is not legal or official, the Border Patrol also say they have authority withing 100 miles of every international airport. No they don'

        You are correct. It's navigable waterways , coast line and boarders .

        1. Anonymous Coward
          Anonymous Coward

          Does a moat around an airport count? Just in case?

          1. kain preacher Silver badge

            If you can drive a boat on it yes .

    2. veti Silver badge

      Please stop spreading misinformation

      You do not recall correctly, or you were not informed correctly. The ACLU has a less hysterical summary here.

      Highlights:

      - At the border, searches of people, luggage or vehicles are considered "routine" and do not require either a warrant or reasonable suspicion

      - Within 100 miles of the border, the Border Patrol can still operate, but they need "reasonable suspicion" to pull anyone over.

      Note also that the 4th amendment talks about "searches and seizures", suggesting that the degree of intrusiveness of the search may be relevant. Confiscating someone's property for months on end is considerably more intrusive than merely inspecting it on the spot, and may (possibly) be ruled to require a stronger justification.

      1. Pascal Monett Silver badge

        Re: they need "reasonable suspicion"

        They have reasonable suspicion. That's what they'll say anyway.

        1. Aristotles slow and dimwitted horse Silver badge

          Re: they need "reasonable suspicion"

          But I would suspect that most of the time they don't have reasonable suspicion. Considering that your average border guard is a failed police officer, or generally someone who wants "any level of authority that they can get" can get, your reasonable suspicion generally turns into "anyone I have personal prejudices against" - and that just aint right.

          1. Fred Flintstone Gold badge

            Re: they need "reasonable suspicion"

            Fair enough, but the difficulty there is that that is nigh impossible to prove - and they know that.

          2. batfink Bronze badge

            Re: they need "reasonable suspicion"

            Of course they have "reasonable suspicion". As far as the Border crew are concerned, anyone with the wrong colour/dress/beard shape/walk/all four can reasonably be suspected of being a Bad Person.

            1. Alistair Silver badge
              Windows

              Re: they need "reasonable suspicion"

              @batfink:

              I'll have to check what colour dress to wear and how to shape my beard the next time I head south of the border. Any hints as to where to find that information would be helpful. I'm assuming I won't be able to get away with a long black dress if I'm wearing a pointy beard.

          3. Aodhhan

            Re: they need "reasonable suspicion"

            I love it when morons comment.

            It's actually more difficult to become a BPA than a typical police officer. Standards are higher along with the pay.

            A good percentage are military veterans, and about half the force claims Hispanic heritage.

            --perhaps you're just racist; to borrow a phrase from closed minded left wingers.

            You're definitely ignorant.

            1. John 104

              Re: they need "reasonable suspicion"

              @Aodbhan

              Thank you.

              If no one calls out moronic statements like how being a CBP agent is for losers, then more morons believe it as truth and we are surrounded by a collective of uninformed or ignorant people who have no idea what they are talking about but shout from the top of their lungs how dumb you are for not agreeing with them.

              As for search and seizure at the border. It needs addressing to be sure (US Citizen). In the mean time, don't use a fingerprint or face recognition to unlock any of your devices. Passwords/patterns are intellectual property as upheld by US courts, so use that to protect your data.

        2. veti Silver badge

          Re: they need "reasonable suspicion"

          The phrase "reasonable suspicion" has a specific meaning in US law. "They looked dodgy" doesn't cut it.

          1. Michael Wojcik Silver badge

            Re: they need "reasonable suspicion"

            The phrase "reasonable suspicion" has a specific meaning in US law.

            A rather weak "specific meaning". It's not hard to construe reasonable suspicion.

            Certainly there are times when the CBP has failed to establish it - perhaps most famously in the Sanchez case, though there they settled rather than let the courts decide. CBP agreed to adhere to the reasonable-suspicion standard as part of that settlement.

            However, reasonable suspicion only requires the officer be able to articulate some specific set of observations which could "reasonably" be associated with criminal activity, and the US courts have never been able to construct a non-tautological definition of "reasonably". Particularly in cases where there are not good-quality recordings of the encounter between the officer and the subject, officers potentially have considerable opportunity to recall behavioral cues that courts might well find constituted RS.

            In any event, fighting a government agency on lack-of-RS grounds is likely to be very expensive. That's why the cases which do go to court, or settle out of it, are generally bankrolled by some non-profit. And they're going to pick the cases where they think they have the best chance.

            The reasonable-suspicion standard is not sufficient to protect civil rights in this area. We need a strong Fourth Amendment ruling by the courts (or equivalent legislation, but that ain't gonna happen) to shore it up.

  2. Anonymous Coward
    Anonymous Coward

    As a non citizen

    Don't take tech when visiting the US.

    Or is this suspicious as well?

    Ihre Papiere, Bitte!

    1. DiViDeD Silver badge

      Re: As a non citizen

      ... don't go anywhere near the Untied States

      There, FTFY

      1. MrDamage

        Re: As a non citizen

        Or even the United ones.

        1. DiViDeD Silver badge

          Re: Or even the United ones.

          Oh no - I don't think americans have been united (apart from 'Murica - Fuck Yeah', of course) for many a decade.

      2. Louis Schreurs BEng
        Unhappy

        $

        Untied $tates of Dollar

    2. NATTtrash

      Re: As a non citizen

      I know it's a tongue in cheek remark, but the real irony is that concerning these kind of things Germany scores higher than, let's say, the US and Blighty. You just have to compare their CCTV policies for example. But...

      Coming back to the original subject: suspicion/ intent is very much in the eye of the beholder. During a professional trip to the US to visit a congress 2 months ago, I travelled together with a colleague of mine. We both have the same nationality (by birth), passport, academic credentials. We're both about the same age, and both were invited as key note speakers. Only differences: he's male, and he's coloured. At the US border, I was whisked through. He was taken apart, questioned where he bought his passport, whether he really was a professor, if somebody could confirm that, where he was from originally (the by birth thing didn't register), whether he used drugs, whether he was Muslim (note, not what is your religion), whether he was gay, why he spoke so good English. Trouble became even worse when he was ordered to hand over his phone, and it turned out to be an old dumb flip phone one. They kept him for hours, drilling him on "where his real phone" was. And, "if he is this big shot professor" where his laptop was (by chance, I had it, bundled up with all other congress stuff). After 3 hours they released him. The organiser of the congress tried to clarify and apolise. Nothing was ever heard of it again. We later joked about it with a beer that it probably is about time to retire...

      1. A K Stiles

        Re: As a non citizen

        Did he correct them with "such good English" ?

        Clearly not actually a smart thing to do whilst at their ministrations but possibly amusing otherwise.

        1. Louis Schreurs BEng

          Re: As a non citizen

          I love reading english. English. Especially when it is written in a British non-murrican way. Even more if it is on purpose. Top it off with British Humour and me is bliss.

          1. Anonymous Coward
            Anonymous Coward

            Re: As a non citizen

            me is bliss

            Yup. Noted :)

      2. Anonymous Coward
        Anonymous Coward

        Re: As a non citizen..Nothing new. Its always been that way. Everywhere

        Yeah, US border patrol sucks but back in the 1980's and 1990's it was lot more easy going. I wonder what happened since then? Your friend fitted the profile so he was going to get more attention. End of story. A lot of those salifis doing the bad stuff were professionally qualified clean cut males of middle eastern origin. The fact the situation seems to have ruffled your professional amour propre is neither here not there.

        Back in the 1970's or 1980's if you had been a young working class Irish male who looked "wrong" while getting off the ferry in Hollyhead in Wales or Stranraer in Scotland you would have had a very long talk with the HM Customs and some of their plain clothes associates. Or how about dressing like a scruffy student with a small pack trying to cross the French, German or Italian border back at the height of the Baader Meinhof / Red Brigade terrorism. If you did not have all your national papers in order , or even if they were and they did not like the look of you, then it was 24 hours of "investigation" for you. In their very cozy holding cells.

        The rule has always been when dealing with *any* border police is that you have *no* rights in that moment you are interacting with them. In their zone. In theory you might have certain rights but in reality what they decide to do is what the law actually is. If they decided to be dickheads then thats whats going to happen. Want to complain? Just makes things a lot worse. Complain afterwards? The authorities will always back the Border Police. Always. Up to and including manslaughter. I can think of cases in both Germany and France back in the 1980's where this happened. Not just in the DDR. West Germany too.

        If the border police decide to take an interest in you while crossing a border it is best to always treat the situation as a hostage negation situation. Your only goal is to get out of the situation as quickly and cleanly as possible. No matter how much your feathers might be ruffled. Or how much indignation you might feel. You will always lose otherwise. So just not worth it.

        1. Anonymous Coward
          Anonymous Coward

          Re: As a non citizen..Nothing new. Its always been that way. Everywhere

          It is that thinking based upon unsupported bias that creates a culture of racism and illegal searches and the attitude that a border security guard can do whatever they want. It is the thinking that allows Black Americans to be shot by police when they are unarmed and walking away, or when they are just reaching to get their driving licence.

          Reacting with a "well that's the way it is" is just perpetuating this and people questioning it should rightly be concerned.

          Back to the original racial profiling part, are you more likely to be killed in a violent act in America by a Muslim Terrorist or by another means?

          1. Anonymous Coward
            Anonymous Coward

            downvoted for "black Americans"

            Virtue signalling SJW bullshit, even the WaPo db shows that twice as many whites within a handful, compared to blacks, are shot by police

            https://www.washingtonpost.com/graphics/2018/national/police-shootings-2018

            1. phuzz Silver badge

              Re: downvoted for "black Americans"

              "hurr durr statistics how do they work?"

              So, you lose points for picking a paywalled source, but here's the source the Washington Post used. I'm guessing you didn't use that because they have a big quote that show's quite how disingenuous your comment was:

              "Police killed 1,147 people in 2017. Black people were 25% of those killed despite being only 13% of the population." (emphasis mine).

              So if you're in the US, and you have dark skin, you're three times more likely to be shot by US security forces. I won't call them police, because quite frankly the word means something different over here, something less shooty.

              1. BigSLitleP Silver badge
                Pint

                Re: downvoted for "black Americans"

                Also note he's AC. He knows he's said something stupid and doesn't want it getting back to him. Beer icon, because he's either drunk or he's currently drinking a nice can of Diet Racism.

                1. Someone Else Silver badge

                  Re: downvoted for "black Americans"

                  Diet Racism?!? Sounds more like full-fat 100% high-fructose corn syrup Racism to me....

              2. fishman

                Re: downvoted for "black Americans"

                "So if you're in the US, and you have dark skin, you're three times more likely to be shot by US security forces."

                25% is less than two times 13%.

                1. DavCrav Silver badge

                  Re: downvoted for "black Americans"

                  ""So if you're in the US, and you have dark skin, you're three times more likely to be shot by US security forces."

                  25% is less than two times 13%."

                  Suppose there are 1000 people, and the police shoot 100. (The numbers aren't important, just the proportions.) They shoot 25 blacks, 75 whites. But there are only 130 blacks in the population, so you have a 19% chance of being shot. There are 870 whites, of whom 75 are shot, which means you have a 8.6% chance of being shot. 19.2/8.6=2.23. So you are more than twice but less than three times as likely to be shot being black than white.

                2. MiguelC Silver badge

                  Re: downvoted for "black Americans"

                  That's not how you combine percentages....

                  For simplicity lets say population is 100 and killed is also 100 (I know it leads impossible end results, but that's not my point)

                  So you have a) 13 black and 87 non-blacks in general population

                  And b) 25 black killed (192% of the total blacks) and 75 non-black killed (86% of the total non-blacks)

                  The end result is that 2.2 blacks are killed per each non-black

                  OK, not 3 times more as stated above, but quite a lot more and therefore proving some existing bias.

              3. JoMe

                Re: downvoted for "black Americans"

                And here's the fact-based rebuttal of the same SJW-fueled report, which is riddled with poor presumptions:

                https://www.nationalreview.com/2017/07/police-shootings-black-men-race-not-reason-causal-effect/

              4. Cederic Bronze badge

                Re: downvoted for "black Americans"

                While black people are shot more often by the police, white people are shot more often per police interaction than black people.

                The rate at which people get stopped is the greater issue to prioritise if you want to reduce the number of black people killed by the police, or (if you're really concerned about the police shooting innocent people) focus resources on preventing the police shooting white people.

                It's amazing what the data actually shows when you look at it without seeking a specific viewpoint.

            2. Doctor Syntax Silver badge

              Re: downvoted for "black Americans"

              Downvoted for the "Virtue signalling" crap. If that's the best argument you can put forward best not to argue.

          2. JoMe

            Re: As a non citizen..Nothing new. Its always been that way. Everywhere

            "Black Americans to be shot by police when they are unarmed and walking away"

            Much as I despise the corruption in the force, this is simply not true. Yes, there are a minority that are racist and do horrible things. Yes, there are times that an individual oversteps the mark. But NO, this is not the norm. White people are statistically (published statistics) more likely to be shot in a police altercation.

            "It is that thinking based upon unsupported bias"

            Hmm, well considering the majority of the race has made it clear that they want the end of America, and enjoy evil things (based on how they vote in the countries they own), it's neither unsupported nor bias but reasonable precautions.

            "Back to the original racial profiling part, are you more likely to be killed in a violent act in America by a Muslim Terrorist or by another means?"

            Statistically? I couldn't care less about school shooters, mass shooters, etc. because they're typically scared little wimps who can't get it up long enough to cause me or mine any problems. I am shit scared of terrorists who believe their god has ordered a Jihad for them to cleanse the earth of all western civilization.

            1. DavCrav Silver badge

              Re: As a non citizen..Nothing new. Its always been that way. Everywhere

              "Statistically? I couldn't care less about school shooters, mass shooters, etc. because they're typically scared little wimps who can't get it up long enough to cause me or mine any problems. I am shit scared of terrorists who believe their god has ordered a Jihad for them to cleanse the earth of all western civilization."

              Says 'statistically', then comes out with some non-statistical nonsense.

              Statistically, you are much more likely to be killed by a Christian mass shooter in the US than a Muslim terrorist.

              1. JoMe

                Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                Funny.

                Lets look at the statistical data available to us. I condensed the numeric data using Wikipedia and validated a sample of their resources; since the number matches what the FBI and other federal sources report, I'm comfortable that the number reflects a reasonable level of truth.

                Since 2000, there have been over 3200 deaths on American soil due to terrorism with an overwhelming 95% rate by Muslim extremists claiming to do so in the name of Allah. An additional 6656 seriously injured on top of that. More if we add in attacks on embassies and other American businesses, but lets focus on America.

                Since 2000, there have been a total of 650 deaths in total for mass shootings in the USA. Add 1063 for injuries; which given that they're gunshot wounds do NOT include blown off legs, arms, etc.

                I applaud your fearlessness, but to me those statistics are good enough to make me less scared of an idiot with a gun (who I'll shoot) than a terrorist with a bomb, who doesn't care if they live or die. IMHO.

                1. This post has been deleted by its author

                2. Someone Else Silver badge

                  Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                  Since 2000, there have been over 3200 deaths on American soil due to terrorism with an overwhelming 95% rate by Muslim extremists claiming to do so in the name of Allah.

                  Sources, or it didn't happen.

                  1. BigBear

                    Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                    @Someone Else:

                    Jo Me is including September 11, 2001.

                  2. JoMe

                    Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                    Here, the terrorism stats are summarized nicely: https://en.wikipedia.org/wiki/Terrorism_in_the_United_States

                    Shootings you need to cross reference multiple FBI reports since the media conflate the numbers significantly. If you want it I'll go root them out (or see if there's a summary), but quite frankly you seem disinterested in facts and figures, so I really don't feel like bothering to appease you.

                    The simple fact of the matter is, a lone idiot with a gun is a lone idiot with a gun. He targets "no-gun-zones" because he knows on average he'll be taken down fast if he starts shooting up a well armed populace, as happened in Texas and a number of other places that shooters got put down, fast.

                    The person who believes Allah wishes all unbelievers in the west to die horribly, is far worse for a number of reasons. Biggest being, they use bombs and other incendiary devices that often cause not just death, but multitudes of injuries that cause dismemberment and disfigurement - if you're lucky. If you get shot in the leg, you'll have a limp if the surgery goes badly, and are highly unlikely to lose it. Get blown up in the leg, and you're permanently maimed. Secondly, you try convincing a suicide bomber that he doesn't need to do it when he believes his god wants him to proceed.

                    You might argue: well, that's just a small minority. It's not representative of the whole nation of 2 Billion. To that I would ask why then, in countries controlled by that particular nation, do they vote in militant governments that put atrocities into law? And they proceed to support these governments.

                  3. Cederic Bronze badge

                    Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                    Would https://www.youtube.com/watch?v=R4ZHOHrOWuk suffice?

                3. DavCrav Silver badge

                  Re: As a non citizen..Nothing new. Its always been that way. Everywhere

                  "Since 2000,"

                  How about since 2002? I cannot believe you just happened to choose that date.

                  This is the problem with cherry-picking statistics. You can include 2001, but you have to weight recent years, say the last seventeen for example, more heavily than ones nearly two decades ago.

                  One example would be to use exponential decay, so the last one or two years (say) are worth n times the previous one or two years. Probably n=2 is too much, but n=1 is not correct. With n=1.5, and two-year window, 3200 deaths become equivalent to 1.4 deaths today.

                  I mean, otherwise, Nazis are vastly more dangerous than cars in the UK, because since 1938, millions of UK citizens have been killed by Nazis, and only a few hundred thousand have been killed by cars.

        2. Doctor Syntax Silver badge

          Re: As a non citizen..Nothing new. Its always been that way. Everywhere

          "Stranraer in Scotland you would have had a very long talk with the HM Customs"

          I don't recall any HM Customs officers in Stranraer (or Cairnryan). Could it be that the crossing from Larne isn't an international one?

        3. NATTtrash

          Re: As a non citizen..Nothing new. Its always been that way. Everywhere

          Nope. Although I follow your reasoning, I don't agree. I'm old enough to have lived through the times you're describing, but don't recognise it, nor do I think it is any kind of justification or excuse for civil servants behaving like that. And I'm not even using difficult words like "humanism" (and yes, that would be the US meaning of the word). Nor am referring to the general assumption from the 70s/ 80s that being "right of centre" said something very clear about your general intelligence.. But I suppose that's what we get when we think it's a great idea to teach our children something about the world... by teachers with guns strapped on in front of a class room.

          Lucky for you, he is more generous than I am. But then again I'm probably a SJW right? And a feminist. And all those other words so popular nowadays on the interwebs which don't need to be spelled because they can be copy-pasted. I only hope for you that he is less prejudice and more objective than I am whenever, by chance, he needs to unblock your arteries... </rant>

          1. JoMe

            Re: As a non citizen..Nothing new. Its always been that way. Everywhere

            "But I suppose that's what we get when we think it's a great idea to teach our children something about the world... by teachers with guns strapped on in front of a class room"

            The reason schools get shot up can be distilled down to two very basic factors

            1) Most schools are no-gun-zones. The shooter knows they won't be taken down quickly.

            2) The media make heroes out of the shooters by showing their faces and splashing their names around.

            What's worse is that law enforcement won't interfere and keep the kids safe. This has happened in a number of places, Parkland being one of the more recent where the Police and FBI knew about the upcoming shooting and didn't take action. Not once, not twice, over 49 times police were given warnings and FBI were begged to intervene. When the event occurred, the police stood outside in safety while allowing the children to be shot. The excuse being that the shooter had a more effective weapon at their disposal.

            In this case, as in many others, teachers have stated that had they been allowed to have their legally licensed firearm in the school, the shooter would have been stopped. This has been evidenced in other locations that shooters tried to start up, and isn't it funny how those cases don't make the news. You'd think there's an agenda going on there...

      3. kain preacher Silver badge

        Re: As a non citizen

        Um what does being gay have anything to do with it

        1. MachDiamond Silver badge

          Re: As a non citizen

          Burgess and Philby?

      4. JoMe

        Re: As a non citizen

        "The organiser of the congress tried to clarify and apolise"

        No, no, no. The organizer should have raised a stink, claiming racism, religion-ism, and found an LGBT spokesperson to speak on how they seemed to also be prejudiced against gay people. Climate in this place right now you probably would have gotten a public apology.

    3. Anonymous Coward
      Anonymous Coward

      Re: As a non citizen

      You do know that Canada searches you to ?

      1. Lord Elpuss Silver badge

        Re: As a non citizen

        Canada searches you to what?

        1. A K Stiles
          Coat

          Re: As a non citizen

          or where?

        2. Anonymous Coward
          Anonymous Coward

          Re: As a non citizen

          Canada will search your electronic devices . If yo have an external HDD with you they will check that too

      2. Crazy Operations Guy Silver badge

        Re: As a non citizen

        "Canada is just as bad" is a shitty defense of the US violating its own Constitution.

    4. Jove Bronze badge

      Re: As a non citizen

      It is a valid question if say you were in possession of a business laptop that is taken out of your possession for a search and then returned to you; where do you stand?

      1. kain preacher Silver badge

        Re: As a non citizen

        At that point you are fucked cause they want you for some thing .

  3. Yet Another Anonymous coward Silver badge

    But many of these people

    Aren't even victims of crimes, so why are their phones being downloaded ?

  4. jonathan keith

    Taking bets now...

    That the final judgement, once it's finally gone to the Supremes, is that warrants are required for searches of US Citizens' devices, but everybody else is fair game (so fill your boots, TLAs.)

    Human Rights? The US has heard of the concept.

    1. This post has been deleted by a moderator

      1. Mooseman Bronze badge

        Re: Taking bets now...

        "Ooooooh, did I seem to be just a bit racist?"

        Yup. Try not to be an idiot.

        1. Kubla Cant Silver badge

          Re: Taking bets now...

          @Mooseman: Try to recognise irony. It's a frequent feature of The Register.

      2. Anonymous Coward
        Anonymous Coward

        Re: Taking bets now...

        ... the ones with no foreskin...

        Doesn't that include the vast majority of US males?

        (I don't mind being corrected if I'm wrong)

        1. aks Bronze badge

          Re: Taking bets now...

          I'm sure it was intended to include all victims of genital mutilation.

      3. DavCrav Silver badge

        Re: Taking bets now...

        "Or the ones with no foreskin."

        It's usually believed they don't recognize Muslims' rights. I'm surprised you disagree.

    2. Doctor Syntax Silver badge

      Re: Taking bets now...

      "Human Rights? The US has heard of the concept."

      Are you sure about that?

    3. MachDiamond Silver badge

      Re: Taking bets now...

      The US Constitution applies to everybody within the borders of the United States. Foreign nationals are not "fair game". If only citizens were entitled to constitutional protections, illegals would be very easy to deport (among other more intrusive actions).

  5. Anonymous Coward
    Anonymous Coward

    unconstitutional

    only re. those deemed lucky or unlucky citizens of the God-loves-USA. All others can be searched "properly" (and equipment seized), or worse. After all, the constitution ONLY applies to the citizens, non? That said, probably same applies to all borders and countries.

    1. Any other name

      Re: unconstitutional

      After all, the constitution ONLY applies to the citizens, non? That said, probably same applies to all borders and countries.

      I do not know about all, but the fundamental freedoms and legal rights conferred by the Canadian Constitution Act (See: https://laws-lois.justice.gc.ca/eng/const/page-15.html) are not conditional on citizenship. They explicitly apply to everyone.

      Some of the lesser rights (e.g the right to vote, to work, and the right to enter the country) are conditional on citizenship and immigration status - but that's only to be expected.

      Constitutions of some other countries go further - for example, German constitution recognizes the right to asylum as a basic human right, not conditional on citizenship (in practice, that right is constrained by the regulations, so it's only theoretical).

      1. EnviableOne Bronze badge

        Re: unconstitutional

        the supreme court already ruled on this.

        INAL but In Plyler v. Doe (1982), where the Court held that aliens illegally present in a state are within its jurisdiction and may thus raise equal protection claims

        This allied with Bolling v. Sharpe (1954) "reverse incorporation",

        means if you are in a state, you are entitled to the protection of the constitution.

        The problem is the border area might not have the relevant teratorial status, in that case you need to fall back on international law and the Universal Declaration Of Human Rights.

        Article 17(2) seems to be appropriate "No one shall be arbitrarily deprived of his property."

        (wording as created in 1948)

  6. Jimmy2Cows Silver badge

    her lawyers want to know what data was copied and want it returned to her

    How does one 'return' data...? Not like it exists as a single physical thing you can hand over. She needs better lawyers.

    1. Just Enough

      Re: her lawyers want to know what data was copied and want it returned to her

      They burn a DVD and give it to their lawyers. They keep that for their records, and burn a copy to give back to her lawyers. Her lawyers copy it and give her a copy. She gets a copy of the data she already has on her phone, lawyers have their copies and border agents keep their copy. The law is upheld and everyone is happy.

      Except American citizen Rejhane Lazoja, who thinks maybe next time she should demand that the data be deleted and not returned to anyone.

  7. UberMunchkin

    This has gotten to the point where the only viable solution seems to be wait until your plane has landed and then factory reset your mobile phone. After the reset don't log into it with any accounts. Let these assholes do whatever they want with it, then when you get it back, and I cannot stress this enough, wipe it again. Only after that should you consider logging back in and then setting up your accounts again.

    Eventually we're going to end up with all our device configurations being something we can store in a safe virtual locker somewhere and then download to a device as a template or virtual machine at a later date.

    What the idiots in charge of this farce don't seem to understand is that technology will always out pace them and people who are extremely serious about their privacy will always be able to outthink them.

    On a related note. Do not use biometrics for security, it's not a password, it's a username and you can be forced to unlock a device without your consent as the agents in question can force your fingers onto the scanner and your face into the camera view, however with a password you either have to disclose it or they have to brute force it.

    1. Aqua Marina

      Adjusted this for you

      "you either have to disclose it or they have to brute force you!"

      1. Timarzi
        Big Brother

        Re: Adjusted this for you

        Not the face!

        We need that part...

      2. EnviableOne Bronze badge

        Re: Adjusted this for you

        obligatory XKCD:

        https://xkcd.com/538/

    2. Vometia Munro

      I'm reminded of the original episode of Blakes 7 (their effects budget was so restricted that they couldn't afford the apostrophe).

      Things had gone wrong on the prison transport ship London, so said prisoners had asserted themselves. Cue a locked door with a handprint sensor keyed to the authorised members of staff; and an evilly grinning Gan commenting, to paraphrase, "we need your handprint. Your hand doesn't actually need to stay attached to you."

  8. Chz
    Thumb Up

    The ACLU is an example for all countries

    I'm not even American and I'm tempted to donate to the ACLU and EFF at times. I wish Liberty (the closest UK equivalent) was as prompt with their legal challenges. But I imagine they just don't have the funding.

    1. Lord Elpuss Silver badge

      Re: The ACLU is an example for all countries

      The ACLU exists because it's desperately needed. Other countries might not 'need' their equivalents quite so much.

    2. Vometia Munro

      Re: The ACLU is an example for all countries

      I once contacted Liberty about a controversial case I had involved myself with. They rather limply replied, "we take no position", and didn't encourage me to comment further. Funding or not, the impression I was left with was less than favourable. At the same time, their erstwhile chief executive, by then the shadow Attorney General, never answered my letters about the same; compared to the actual Attorney General who did so promptly and politely. This surprised me quite a lot as I'd expected it to be the other way round, but you live and learn, and I suspect that probably also explained Liberty's underwhelming response.

    3. MachDiamond Silver badge

      Re: The ACLU is an example for all countries

      The ACLU takes on many things that I strongly disagree with and only scores about 50% with me. EFF doesn't a much better job, in my opinion.

  9. Anonymous Coward
    Anonymous Coward

    It must be even more fun

    For an old friend of mine who's now a prince's personal physician. He's Bruneian (as in sultan of Brunei) which isn't in the middle east but eastwards of Malaysia and is a deeply Islamic country (he's Buddhist, it gets weird).

    Long story short pretty much every border stops him for a few hours whilst they try to figure out the passport since they'll never have seen one before. The US held him for the best side of 6 hours before consulates got involved to tell the border guards to stop playing silly buggers and let him through. That and the Arabic on the cover doesn't help.

    Last I heard in his new job he gets to fly private jets with diplomatic papers to avoid the hassle.

    Anon to save said friend the embarrassment of being associated with me.

    1. Dr. Mouse Silver badge

      Re: It must be even more fun

      When I was in my late teens, I went on a family holiday to Orlando. We took my brother's best friend along.

      Upon arrival at the US border, things became very heated very quickly. They insisted he (a 10-year-old entrusted to our care) be processed separately from the rest of us, then tried to take him away for extra questioning. They had potential reasons for doing so (he looked like he could have been middle eastern, and his passport seemed suspicious due to a recent trip with his family to Israel which included a sightseeing trip which passed over several borders in one day).

      It was one of the few times my father's stubborn streak did any good: He kicked up quite a fuss, which meant that higher-ups were called in and they eventually accepted they were being unreasonable (and, IIRC, acting illegally) wanting to question a 10yo on his own. I think we were pretty lucky...

    2. Anonymous Coward
      Anonymous Coward

      Re: It must be even more fun

      Or your friend for ministering to a bashshit lunatic religious fundamentalist.

  10. Chris 211

    I am UK born, I have visited America twice and both times was a difficult experience and I am not a minority. The Good old US of A has turned into a place to avoid. I have had less issues visiting North Korea. They checked I had a phone, they looked at is visually in-front of me and handed it back. They never noted down any numbers, they did not ask me to unlock it. They ask you to log what you are bring into the country, books, money, electronic devices. By contrast America is scared of its own shadow, time and time again over-reacting, shoot first, there is no intelligence on the ground, where you need it most. I shall be avoiding the place and I have not lost out.

    1. Vometia Munro

      I have slightly mixed feelings about my experience. I'd travelled to the US nearly 30 years ago with an acquaintance and we were held up for many hours for apparently no reason; however, in hindsight it is possible that my acquaintance may have made himself a "person of interest" for entirely the wrong reasons, so it is very possible the delay was due to them checking up on him.

      However, in spite of that, and in spite of me simply being collateral damage, their attitude was troublesome. The staff were rude and belligerent, and being kept in what was basically a greenhouse in mid-summer with no access to even the most basic essentials like water had left us feeling really very ill. This was in one of the more reputationally polite parts of the US too, so I dread to think what it might be like 1) elsewhere and 2) now and 3) if you're not white and ostensibly Christian.

    2. krismach

      Uh, UK isn't any better. As a US citizen, I flew in from Paris and was detained and held overnight and thoroughly searched and sent back to Paris. Reason was that I didn't have a return ticket. And even though I made it clear that I wasn't sure if I was going to go to NYC or Taiwan after my London visit, hence why I didn't purchase a ticket yet. They didn't like that answer and accused me of lying. Not only that, I even mentioned that I have dual citizenship, which clearly states where I was born in my US passport, but I didn't have my EU passport with me. So either way, I could legally stay in UK indefinitely, even though I only wanted to visit just for two weeks.

      When I arrived in Paris, their passport control of course questioned me as they were wondering why I was sent back. And after hearing what happened, told me that was totally ridiculous, and that I am welcomed in France....

      And next time I entered UK on my EU passport, that forced UK passport control to remove this record from their system, as it is not allowed to keep such a record for EU citizens.

      Anyway... All I can say is, that I feel your pain, but it can and does happen the other way around as well.

  11. JoMe

    Security guards with big ego

    Is pretty much all they are. It's one of the reason their badges are larger than normal. The problem is this causes a massive ego trip on their part.

  12. Anonymous Coward
    Anonymous Coward

    The US had a huge revelation in 2001

    As a child, I lived in several parts of the world that now get in the news for bad reasons. I was in Iran pre 1979 . (I left in 01/01).

    People from the USA had the understanding that the whole world

    1. Admired the USA

    2. Wanted to be US citizens

    3. Appreciated their country helping get the "right" people in power.

    and so on

    After 1979, they assumed that Iran had been taken over by very evil and unrepresentative people who had misled them and mis-represented the true beauty of the US system.

    It wasn't until 11 September 2001 that they found out just how much some people and places disliked them. The people who carried out were mostly from the strongest US ally in the middle east and their ringleader was from a very rich family there. The shock of this seems to have caused the USA to forget parts of its constitution and laws and conclude that anyone who wants to g there bust have a secret motive.

    Having learned that the whole world does not love them, some USians have adopted the, equally faulty, idea that the whole world hates them. The USA has long liked the idea that they have everything they need. The world is a lot more interconnected than it used to be. There are some very rich and powerful people there who are making a very large amount of money outside.

    The rest of us should learn to stop smirking when they call their country, "The Land of the Free".

    1. Doctor Syntax Silver badge

      Re: The US had a huge revelation in 2001

      "some USians have adopted the, equally faulty, idea that the whole world hates them."

      To be fair to them, they are working hard to make that so.

      1. carlsonjma

        Re: The US had a huge revelation in 2001

        I have no doubt we'll get there by January 2021. I believe in us.

  13. chivo243 Silver badge
    Coat

    I'll be traveling there later this year.

    no comment! Nothing but good things to say about our diligent agents at the border.

    /s

  14. intrigid

    Best way to handle the phone searches

    1) Take the SIM card out of your main phone

    2) Pack your main phone away in your luggage

    3) Pop the sim card into a cheap, empty, unlocked phone

    4) Enjoy your flight, and if they decide they want to search your phone, let them, knowing how disappointed and underwhelmed they will be.

    1. mark l 2 Silver badge

      Re: Best way to handle the phone searches

      It shouldn't be necessary but I would agree it is best to buy a clean burner phone if you want to take one with you to the US. You can buy brand new Chinese branded Android phones for about 50 quid on places like Amazon and ebay. The camera will be crappy but they should be good enough for messaging, calls, video streaming apps, GPS and some more basic games.

      You could buy a second hand branded phone but I would be worried that if it were examined forensically by border agents there maybe something dodgy left on it from the previous owners that would get you in hot water.

  15. John Lilburne

    Reasonable suspicion

    it has argued that border agents should only need a "reasonable suspicion" to carry out searches.

    Such as being at the border whilst black, or muslim.

  16. This post has been deleted by its author

  17. Anonymous Coward
    Anonymous Coward

    Visa Cancelled - no reason!

    A few years ago, I visited my father who lives in Arizona. Now I'm British passport holder, so had applied an got an indefinite USA visa due to visiting US often. In those days, British citizens entering US had to fill in a visa waver form on the plane, but holding a visa means the waver is not required .... normally.

    On going through the passport checkpoint, a security staff rudely asked where my visa waver form was. I replied that I had an indefinite visa and showed it to him. He coolly took out a thick red pen and put two angry crosses across the visa with the word CANCELLED scrawled between the lines. Then he gave me the visa waver form to fill and sent me to the back of the queue (line). No explanation.

    Yes, they can even cancel an officially issued visa of the United States government. Just because they feel like it. My father passed away a couple of years later. Loved parts of the US I have visited. But I'm sorry I will not be visiting any more.

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