back to article Shock! US border cops need 'reasonable suspicion' of a crime before searching your phone, laptop

The seizure and search of phones and laptops at the US border is unconstitutional, a judge said Tuesday in a landmark ruling. Massachusetts district court judge Denise Casper declared [PDF] that the practice breaks the Fourth Amendment on unreasonable search, and that border agents need to have a “reasonable suspicion” of …

  1. Anonymous Coward
    Anonymous Coward

    No problem

    Any passenger is either 1, a foreigner or 2, an American that felt it was necessary to leave the land of the free (however briefly)

    Both are causes for suspicion

    1. Blake St. Claire

      Re: No problem

      [A] passenger? It might come as a surprise, but there are places where you can – gasp – walk across the border.

      And it's the "Land of the Free and the Home of the Brave." But I hope we never get to the point where you have to be brave to want to come back home from visiting other places.

      1. Yet Another Anonymous coward Silver badge

        Re: No problem

        >Home of the Brave

        Scotland?

        1. LucreLout Silver badge

          Re: No problem

          >Home of the Brave

          Scotland?

          They wish.

          Scotland repeatedly elects a political party that brays on almost exclusively about independence and has achieved nothing constructive in its whole history. The one thing it did a achieve was a once in a generation referendum, which it then lost mostly because too many Scots were frightened of change.

          Sorry, but that isn't brave, its paralysis, indecision, and fear. And I say that as a Northerner who quite likes the Scots & Scotland.

          1. Yet Another Anonymous coward Silver badge

            Re: No problem

            My apologies, my Scottish stereotypes comes entirely chickens (albeit cunning and organised ones)

          2. Anonymous Coward
            Anonymous Coward

            Re: No problem

            Not to mention the various totalitarian and authoritarian policies enacted or attempted to enact via the back door by the Nats...

            Named Person - every child has a govt snooper allocated to them who can stick their beak into any area without justification including medical records, only slapped down by the supreme court as unlawful after the court of session deemed concerns over it "hyperbole"

            Equally Safe - Sounds fair enough doesn't it? Shame its a policy written by Nordic Model Now and the Soroptomists, that conflates Pornography, stripping and prostitution with human trafficking to justify a ban on the aforementioned, along with any form of sex they deem "exploitative" (a very vague and broadbrush term, that generally includes anything outwith vanilla sex and removes agency from sex workers. Nordic Model denounced by Amnesty International in a report, which of course provoked a furious and borderline slanderous response by NMN.....NMN also regularly attack sex positive educators as "groomers" "child abusers" and worse....

            Attempting to outlaw Pornography and Strip clubs as "gender violence"

            Creating a single Scottish Police force, overseen by the Scottish Policing Authority, which handily is made up of those appointed by.....The SNP....

            The SPA are currently without their oversight powers after trying to hold meetings behind closed doors, being opaque in their decision making and worst of all....failing to hold the police to account and simply rubber stamping everything.

            Promising a "fairer and more respectful" disability benefit system 2.5 years ago, now announced as a clone of PIP covered in tartan with only VERY minor tweaks

            Severe intolerance of dissent and harassment of opponents - opposition offices daubed with swastikas, "Traitors" "Quislings" and worse, snp msps stymying investigations into ministerial colleagues, FM ordering that media FOI requests be treated differently to others, bunker mentality, SNP activists openly hostile and aggressive to anyone who says they won't vote SNP, I got a tirade off one the other day "WHO ARE YOU VOTING FOR" "YOU'D BETTER BE VOTING" "VOTE SNP or you will lose your healthcare" which can be construed in 2 ways - claiming any other party will shut down the NHS and 2 that if you don't vote for the SNP we will find out and cut off your healthcare.

            School attainment dropping, Curriculum for Excellence in crisis

            Councils broke and cutting services all around to avoid bankruptcy

            NHS waiting lists in orbit and health boards cowed into not criticising the lack of funding in exchange for their debts (due to lack of funding) being written off, excuses about "we put in £80million extra this year" which sounds a lot till you see the NHS budget and £80 Million is peeing in the ocean compared to what it needs.

            GPs told to cut back what they are prescribing, leaving patients in pain or switched to less effective drugs to save money

            Carseview Scandal still rolling on. with NHS Tayside and SNP doing best to bury it with a backhoe

            Dundee MP Chris Law embroiled in a scandal after claiming he would set up he would set up a respite centre for disabled children in the castle he bought yet no work has been done, no permissions sought and suddenly he has gone very quiet on the idea.......

            Cybernat army ready to jump on anyone who opposes the SNP or independence....with some shocking abuse and threats levelled

            Disparaging the media as "fake news" "misreporting Scotland" "MSM lies" and worse with elected members phoning editors etc to pressure them into firing journalists they dislike or having stories stopped...

          3. Andrew Norton

            Re: No problem

            >Scotland repeatedly elects a political party that brays on almost exclusively about independence and has achieved nothing constructive in its whole history.

            And that's different from the modern day republican party how?

        2. NoneSuch Silver badge

          Re: No problem

          > Home of the brave?

          Yes, Scottish sheep.

      2. Chris G Silver badge

        Re: No problem

        One of the places where you can- gasp- walk across the border?.

        That would be the Shengen treaty zone, 26 sovereign countries who permit free passage to all.

        1. 0laf Silver badge
          Alien

          Re: No problem

          I would think that "being a bit brown" is probably going make for “reasonable suspicion” in most cases. In all others "holding a passport" is probably going to do.

          1. LDS Silver badge

            Re: No problem

            In the minds of ICE and CPB drones probably, but in a court "reasonable suspicion" usually has a far more restricted meaning. When enough cases will be thrown away because gathered evidences will be deemed gathered illegally, they will have to change their practices. Of course, is the Supreme Court doesn't assert otherwise.

            1. A.P. Veening Silver badge

              Re: No problem

              Even that will only work if there are serious repercussions for those overzealous drones themselves, until that time they will remain power mad idiots.

              1. Doctor Syntax Silver badge

                Re: No problem

                A suit against the relevant agency and the individual, jointly and severally would probably do the trick. The agency would undoubtedly blame the individual in order to defend themselves and as soon as the message got out that the employer is simply going to hang its employees out to dry that would be the end of it.

                1. Antron Argaiv Silver badge
                  Big Brother

                  Re: No problem

                  Unlikely to happen. The System always backs its members. Even, as it turns out, if it requires lying.

                  1. veti Silver badge

                    Re: No problem

                    No, "the System" backs the most powerful people. If you want to take down a president, you need more than cast-iron evidence and multiple taped confessions, you also need truckloads of cash to dump on senators' lawns. But if you just want to take down a nameless border security drone, all you need is one photogenic witness and a suitably motivated lawyer.

                    1. Anonymous Coward
                      Anonymous Coward

                      Re: No problem

                      "...you also need truckloads of cash to dump on senators' lawns."

                      What about dirty laundry? Nothing sharpens a politician like a threat to their meal ticket...

            2. Uncle Ron

              Re: No problem

              I'm not so worried about my case being thrown out, as I am worried about some low-paid CBP or ICE agent clawing through my personal info and using it for some nefarious purpose. Don't forget that every tin-pot county sheriff's office clerk has access to NCIC and every other data-base about you, your kids and your ex-spouse's personal total history. There is no public interest in allowing warrentless, casual, low-class free-for-all access to your private finances, health, employment, information.

        2. Blake St. Claire

          Re: No problem

          That would be the Shengen ... zone...

          Well, yes. But a non sequitur because we were talking about the US border.

          And regardless of whether you need a passport to do it, you can definitely walk across and don't need to be a passenger.

        3. katrinab Silver badge

          Re: No problem

          The longest land border in the world is between USA and Canada.

          The border with the most crossing points is between Ireland and Northern Ireland.

          1. John Savard Silver badge

            Re: No problem

            Surely you mean the border between Eire, or the Republic of Ireland, and Northern Ireland. That border isn't between Ireland and anywhere, it's inside Ireland.

        4. John Savard Silver badge

          Re: No problem

          I think you mean Schevenigen. The only other word I can think of closely matching Shengen would be Shenzen, but China isn't 26 different countries. Yet.

          1. Blake St. Claire

            Re: No problem

            LMGTFY

            https://en.wikipedia.org/wiki/Schengen_Area

      3. jelabarre59 Silver badge

        Re: No problem

        [A] passenger? It might come as a surprise, but there are places where you can – gasp – walk across the border.

        I can attest to that. Back in the late '70's I had been wandering around back roads in Northern VT, and happened upon an unused border crossing (gate, guard shack & all) on a "road" that consisted of little more than a couple ruts in the ground. And a sign on the gate asked any persons crossing at that location to please report in at the customs station on the main road.

    2. phuzz Silver badge
      Facepalm

      Re: No problem

      Land of the Free.

      Also land of the largest prison population in the world.

      But apparently not the land of people who understand irony.

      1. adam 40 Bronze badge

        Re: No problem

        They understand irony bars though...

      2. Drew Scriver Bronze badge

        Re: No problem

        Me thinks you equate "free" with "libertine".

        Home of the Free refers not to behavior, but freedom from (foreign) government oppression. You know, "that tyrant, the King".

        Unfortunately, it didn't take long after the Revolution for the Union's own government to take on oppressive traits. But hey, it least it was "by the people, for the people, and of the people" instead of some foreign King and his Parliament...

    3. veti Silver badge

      Re: No problem

      That's not what "reasonable suspicion" means.

  2. Old one

    A CITIZEN'S rights

    The Fourth Amendment protects US Citizen's Rights. There is nothing in the Bill of Rights that extends those Rights to all people. NON citizens even with permission to reside in the US do not automatically qualify for those Rights. Giving those Rights to NON citizens only cheapens their value to those born with them or those who work to legally obtain them.

    1. doublelayer Silver badge

      Re: A CITIZEN'S rights

      We'll start with the fact that your comment is factually incorrect. The fourteenth amendment to the U.S. Constitution makes all rights guaranteed by that constitution, including the rights under the fourth amendment, applicable to all "persons" in the United States. This is obviously everybody, citizen or noncitizen. However, someone did argue as you did that well, how about we don't. The Supreme Court decided that that idea was wrong. See the case Yick Wo v Hopkins. So your statements are wrong on all counts.

      In addition to being factually wrong, they are also morally wrong. Nobody is arguing here that all rights of a citizen should be given to noncitizens, but basic human rights should be. That is also in various legal documents, including the U.N. Convention on Human Rights, to which the U.S. is a signatory. In fact, many of the rights in that document are very similar to the ones specified in the U.S. Constitution.

      1. Antron Argaiv Silver badge
        Thumb Up

        Re: A CITIZEN'S rights

        EXCEPT, according to CBP, at the border (and within 100 miles of it).

        So far, this has held up. I wonder if we are beginning to see some cracks in the wall. Logically, US citizens should have the same rights at the border that they have inside the country. We shall see.

        1. LDS Silver badge

          Re: A CITIZEN'S rights

          That's one of the dangerous slopes some US forces have taken after being scared to death by events that shown all their complacency and unpreparedness.

          Instead of fixing the real issue they are just trying to show the muscles, until someone will remember them they are violating their own Constitution, and many basic human rights.

          I believe countries abroad should start to reciprocate to remember USaians they don't write the world laws, nor they are exempt from local ones. And here 100 miles form the border and any international airport means the whole country....

          1. A.P. Veening Silver badge

            Re: A CITIZEN'S rights

            And here 100 miles form the border and any international airport means the whole country....

            It also means a bit more than 99% of the contiguous continental USA and Hawaii. Alaska is the exception.

        2. Anonymous Coward
          Anonymous Coward

          Re: A CITIZEN'S rights

          Well, yeah, but the problem is that when the same law is interpreted by a reasonably fair-minded person or by a paranoid vigilante dude, the results tend to come out differently...

    2. LDS Silver badge

      Re: A CITIZEN'S rights

      You mean that when a US citizen comes to Europe, our Constitutions don't apply and we can do whatever we like with them? And obviously the same can happen elsewhere?

      For example we can jail forever without due process those two US drug-addicted men who stabbed to death an Italian cop while looking for cocaine in Rome?

      You may be surprised to know that there are some basic rights that protect anyone in a given country - plus countries expects some kind of reciprocity so their citizens don't become without any right when abroad.

      Guess you never put your nose outside US.

      1. Stork Silver badge

        Re: A CITIZEN'S rights

        They probably even got a translator for their court sessions. Would that happen in the US?

        1. Fluffy Cactus

          Re: A CITIZEN'S rights

          In fair-minded US states, yes. In unfair-minded states, No.

    3. Dan 55 Silver badge

      Re: A CITIZEN'S rights

      When was the last time you read the US Constitution? Certainly it was so long ago that you forgot the word 'person' is liberally sprinkled throughout it.

      1. Anonymous Coward
        Anonymous Coward

        Re: When was the last time you read the US Constitution?

        Given it's slimmer than the manual for my toaster, it's hardly an onerous task.

        I suspect Apples T&Cs are longer than the document which runs a continental country ....

        1. Steve Davies 3 Silver badge

          Re: Apples T&Cs are longer

          I'd expect that Apple gets sued more than Uncle Sam.

          Why?

          Apple has billions in the bank.

          Uncle Sam has an ever increasing national debt that runs into the tens of trillions.

          The fact that almost everyone loves to hate Apple is a bonus.

          1. DiViDeD Silver badge

            Re: Apples T&Cs are longer

            The fact that almost everyone loves to hate Apple is a bonus

            Hey, don't put yourselves down!

            Plenty of people hate the US too.

            And the US has plenty of billions in the bank. Admittedly, it's someone else's bank, but, hey ...

    4. Blake St. Claire

      Re: A CITIZEN'S rights

      The Fourth Amendment protects US Citizen's Rights...

      I'm not a Constitutional Scholar, or even a lawyer, but I have read the Constitution. I don't see anything in it that it says it only applies to US citizens.

      You must be thinking of some other Constitution. I'm guessing you also have a Republican Bible. That's the one that doesn't have "Thou shall not kill" in it.

      1. Tom 7 Silver badge

        Re: A CITIZEN'S rights

        And "Thou shalt commit adultery" too!

        1. LDS Silver badge

          Re: A CITIZEN'S rights

          Yet, especially:

          Thou shalt not take the name of the Lord thy God in vain

          I hear US politicians keeping on using the name of God continuously, when it would be better to abide to the above line...

          1. Anonymous Coward
            Anonymous Coward

            Re: A CITIZEN'S rights

            Ever thought they're not Christians or Jews and thus not necessarily subject to the Ten Commandments? Even the Founding Fathers were mostly Deists who felt God was taking a "hands-off" approach to his Creation.

            PS. Anyway, the whole "God" business is pretty recent: mostly in reaction to the Red Scare (where they associated atheism with communism, the Soviets, etc.).

      2. Drew Scriver Bronze badge

        Re: A CITIZEN'S rights

        To get technical (or scholarly), "not murder" would be more appropriate wording than "not kill". Legally, morally, and ethically those terms have separate and distinct meanings.

    5. Just Enough

      Re: A CITIZEN'S rights

      "Giving those Rights to NON citizens only cheapens their value to those born with them"

      How does this happen exactly?

      1. Tom 7 Silver badge

        Re: A CITIZEN'S rights

        It takes away their right to be a pompous bullying arsehole.

      2. LDS Silver badge

        Re: A CITIZEN'S rights

        When someone thinks he's born with basic human rights others should not be endowed with, you see where he's form and where he's going to...

        Moreover it's interesting the Founders asserted those rights to exist even before USA existed and the Constitution was written....

      3. Cynic_999 Silver badge

        Re: A CITIZEN'S rights

        One big difference between USA and most other countries is that IIUC, US citizens while abroad must continue to comply with most US laws in addition to the laws of the country they are in unless doing so conflicts with the laws of the other country. Most other countries do not require its citizens to comply with laws that do not exist in the country they are visiting. Theoretically a 20 year old US citizen who has an alcoholic drink in a UK pub could be prosecuted upon their return to the US.

        Although recently I believe the law in the UK was changed so that it is an offence for a UK citizen to have sex with another UK citizen who is under he age of 16 even if they are at the time both in a country where the age of consent is lower than the ages of the UK citizens. Previously they would have had to have been breaking the law of both the UK and the other country before a prosecution could have been brought.

        1. LeahroyNake Silver badge

          Re: A CITIZEN'S rights

          I'm pretty sure that if you want to come back to the UK you shouldn't be flying off to #SomeRandomCountry to molest children (as defined by UK law as under 16 for sex related issues).

          It was not long ago that being a gay male couple was illegal in the UK until both parties were 18 of older. They probably wouldn't advertise the fact that they were a couple if they went on holiday to say Russia?

          So should you adhere to the law of the country they are in, the one they are going back to or both?

          Also I thought the US rights were only applicable to persons in the US? If you haven't gone through passport control are you not still in 'international waters' or something? Or maybe just a short trip from the Guantanamo Bay luxury resort?

          1. John Brown (no body) Silver badge

            Re: A CITIZEN'S rights

            "Also I thought the US rights were only applicable to persons in the US? If you haven't gone through passport control are you not still in 'international waters' or something?"

            As I understand it, the USA is one of the few (only?) countries to not have a concept of "in transit" for international travellers "passing through". Once you cross their border, you are under their control in terms of law. Worse, they have a possibly unique definition of "border" such that if you are within 100 miles of a border crossing point, the law is different to the (very few) remaining parts of the country that are not classed as the "border" with fewer, if any, rights.

            1. Fluffy Cactus

              Re: A CITIZEN'S rights

              There are numerous laws, especially tax laws, that are interpreted differently in the US than anywhere else. By law, for example, you become subject to US tax laws "simply by being there long enough", regardless of whether you are a US citizen or not. They do this by saying "Once you have been here a certain number of months, you are a resident and subject to US tax laws". And, you would think that this "residency" would stop automatically by simply "no longer being there for a sufficient number of months, but, nooo, you have to let them know that you are gone and won't come back, or else the long arm of US tax law can still get you". True in fact, and by law. Luckily, if you are a poor sap with nothing but a silly pay-check to your name, they won't come after you. But, if you are a "worthwhile billionaire" who has not bribed enough politicians with protection money, then they are gonna get you.

              Yup, the Americans have often made laws that are valid "wherever, whenever, forevermore". Their mindset is weird, overbearing and without regard to the laws of other countries, similar to the million year contract a scientology member is supposed to sign.

              So, people who are running governments and make laws often are certifiably insane. Most laws should come with an expiration date.

          2. veti Silver badge

            Re: A CITIZEN'S rights

            The British "sex tourism" law is an exception to the usual rules, at least as applied in British courts. It's justified purely on the Think Of The Children rule. The only other law I can think of that the UK applies extra-territorially is for war criminals.

            If you think laws don't apply to people who haven't gone through passport control, just imagine what would happen if you turned to the person on your left and clubbed them to death with your suitcase. Do you really think there's any airport on earth where you could do that, and not be arrested and tried by the local authorities?

        2. kain preacher Silver badge

          Re: A CITIZEN'S rights

          "ne big difference between USA and most other countries is that IIUC, US citizens while abroad must continue to comply with most US laws in addition to the laws of the country they are in unless doing so conflicts with the laws of the other country. Most other countries do not require its citizens to comply with laws that do not exist in the country they are visiting. Theoretically a 20 year old US citizen who has an alcoholic drink in a UK pub could be prosecuted upon their return to the US"

          You are wrong . The only thing you can be prsocuted for in a forgien land by the US as an American is traveling to have sex with a minor, not paying your taxes to Uncle same and killing another american. Other wise you can get drunk, do drugs and kill kids and not be proscuted when you get back(unless those kids are American

    6. Electronics'R'Us Bronze badge
      Holmes

      14th amendment

      Let's look at the actual text of section 1, shall we?

      Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      When I look at this, the term citizen is quite specifically used where it is necessary; the equal protection clause states person

      That distinction is important; had it meant citizens only in the equal protection clause, the text could easily have stated "citizen", but it does not; it states "person".

      Having had a constitutional lawyer for a girlfriend many years ago, I was immersed in this stuff for years.

      Interesting side note: The bill of rights (otherwise known as the first ten amendments to the Constitution of the United States) was held to apply to the states by application of the Due process clause of the 14th amendment.

      1. Yet Another Anonymous coward Silver badge

        Re: 14th amendment

        So when this was written did "person" include slave ?

        All the DHS has to do is define anyone within 100mi of the border as a non-person

        1. A.P. Veening Silver badge

          Re: 14th amendment

          All the DHS has to do is define anyone within 100mi of the border as a non-person

          That might backfire, DHS agents wouldn't be persons either but feral, ferocious animals intent on harm and not on the endangered species list.

        2. Electronics'R'Us Bronze badge
          Holmes

          Re: 14th amendment

          The 14th amendment is one of the Reconstruction Amendments

          The 13th abolished slavery and was ratified about 19 months prior to the 14th and therefore by that time, no person could (legally) be a slave within the USA.

          1. keb

            Re: 14th amendment

            except convicted criminals

        3. LDS Silver badge

          "All the DHS has to do is define anyone within 100mi of the border as a non-person"

          An attitude that will put USA in the same league of North Korea and the ISIS "Caliphate".

          I hope some adult will soon understand the long-term damage some too scared idiots looking too much like the grandsons of McCarthy are doing to US reputation abroad.

        4. Anonymous Coward
          Anonymous Coward

          Re: 14th amendment

          If I am not mistaken, they already have done something like that. I'd have to look that up, but there are

          certain US laws that, essentially, make areas within a certain distance, inside the US, from US borders

          to be "constitution-free zones", where "anything goes".

          The US police and drug enforcement people are also benefiting from laws that make "certain amounts of cash" found on persons "within drug trade corridors" (i.e. any major highway) as a "potentially suspect proceed from criminal activity seizeable by law" without due process. They get around the pesky due process idea by "calling the cash to be guilty of a potential crime", not necessarily the person carrying it.

          Thus they can take your money, and you can't get it back. Not even by proving your "non-guilt". Because, hey, it was your money that was "guilty looking", not you!

          If you think I am kidding, be assured that a number of US States have made laws to invalidate that particular fairly crazy Federal law within the borders of their particular states. Because, yes, there are still a few reasonable people left in the US. Not many, but a few.

          If you ask me, all US senators and elected officials are guilty of unconstitutional behavior merely by voting for any number of laws that violate the constitution over and over. They all ought to be put in jail.

          But I am too literal, and not pragmatic enough for their taste.

    7. teacake

      Re: A CITIZEN'S rights

      "Giving those Rights to NON citizens only cheapens their value to those born with them or those who work to legally obtain them."

      The value of a right should not exist only by dint of its denial to others. If it does, you don't have a system based on rights, but on discrimination.

      1. Anonymous Coward
        Anonymous Coward

        Re: A CITIZEN'S rights

        "The value of a right should not exist only by dint of its denial to others. If it does, you don't have a system based on rights, but on discrimination."

        But without discrimination, how can one distinguish a citizen from a noncitizen? ANY kind of classification by default is a form of discrimination.

        1. Stork Silver badge

          Re: A CITIZEN'S rights

          To discriminate is strictly speaking the same as to differentiate - in this case to figure out on is citizen and another not. The word has then been added significance later...

    8. This post has been deleted by its author

  3. Graybyrd
    Facepalm

    Reasonable cause

    "I see that's a digital device you got there. And you got a shifty look about you; nervously glancing about I'd say. Hey, Chief, don't you think this guy's got a shifty look?"

    "Yes. Grab that laptop and search it. He's a shifty one, alright"

    - - -

    Case before the US Supreme Court: probable cause at the border. Five "Conservative" Justices; Four "Outvoted" Justices. Hmm.. wonder which way that decision is likely to go... Oh, and as for those 700K "Dreamers?" 2020 is the year to start packin' their bags; the Court has already signaled they're gonna be leavin' on a Jet plane if they can afford the ticket; otherwise, the Tijuana bus will do.

    1. Charles 9 Silver badge

      Re: Reasonable cause

      Except for one thing. The Riley decision that forms the basis for this case was ruled unanimously (meaning ALL the Jusitces, conservative ones included) ruled against the government. Barring the two recent additions, the remaining seven Justices would be going back on their own word.

      1. Drew Scriver Bronze badge

        Re: Reasonable cause

        It depends.

        Broadly speaking, the conservative justices attempt to discern the literal meaning of the Constitution while the liberal justices tend to incorporate more subjective terms like "disenfranchisement", "fairness", and "desirable".

        Liberal justices are more likely to rule according to what the Constitution ought to be, or would be if written in this day and age, while conservative justices defer to the states for amending the constitution through the codified process for that.

        Many people fail to understand these key differences between conservative and liberal justices. This leads to bemusing statements like "justice X is becoming a liberal" if he rules against, for instance, restrictions on abortion. The opposite it true; the justice is merely consistent in applying his conviction that it is the Constitution and not his personal moral beliefs that determines whether a law is constitutional or not.

  4. Timmy B Silver badge

    Well it's easy...

    "Please can we look in that there 'pooter?"

    "No."

    "'No' you say? That's a bit suspicious of you. What are you hidin'?"

    Thus a visit to a back room where that's not the only thing searched....

    1. LDS Silver badge

      Re: Well it's easy...

      The answer should not be "No" but "Why?" - they would have to find a "reasonable suspicion" then.

      1. Antron Argaiv Silver badge

        Re: Well it's easy...

        ...and the answer: "We're not required to tell you why."

        1. LDS Silver badge

          Re: Well it's easy...

          Read the artilce: "That means border agents will continue to be able to search devices at the border, though will have to justify doing so."

          And their subsequent actions will decide if they acted lawfully or not.

          The best line of action in not to be fully uncooperative - it's to be calm, and let them know you know the law.

          Of course if you don't care you can just bend and let them do whatever they like.

          1. Sgt_Oddball Silver badge
            Gimp

            Re: Well it's easy...

            Ahh the good ol' 'knowing the law' vs 'knowing the law'... Tends to get you more hassle since you're obviously a smart arse and thus suspicious....

          2. veti Silver badge
            Pint

            Re: Well it's easy...

            They may "have to justify" it, but a pint says they won't have to share that justification on demand with the bearer of said device.

    2. chivo243 Silver badge

      Re: Well it's easy...

      Exactly, I doubt the Judge is going to be around when they haul you in anyway...

      1. jmch Silver badge

        Re: Well it's easy...

        The judge won't be around when they haul you in, but anything they find would then be inadmissable in court. Border agents can still act like the bullies they are...

        ...but it will just take a couple of cases of clear criminals going free because the clear proof of their crimes was illegally taken off their devices without having reasonable suspicion* before their supervisors rein in that behaviour

        *When it comes to a court, they would need to prove there were grounds of reasonable suspicion *before* the search happened

        1. A.P. Veening Silver badge

          Re: Well it's easy...

          And it will help if there are serious, personal repercussions for those overzealous agents.

        2. Cynic_999 Silver badge

          Re: Well it's easy...

          "

          *When it comes to a court, they would need to prove there were grounds of reasonable suspicion *before* the search happened

          "

          Theoretically. However if incriminating evidence was found, it's not too difficult to make something up post-fact (e.g. "He appeared nervous and displayed other classic signs of guilt."). This tends to be believed because the suspicions, no matter how bogus, have been proven to be correct.

          It's the innocent people who were searched and then sue where the legality of the search gets the most scrutiny.

  5. Anonymous Coward
    Anonymous Coward

    need 'reasonable suspicion'

    if you're a US citizen and green card holders, all others are free game. Not that other borders in the world offer you better protection, there's always this gateway excuse of "suspicion / terrorism-related investigation", etc, which will get royally fucked, whichever country you enter / exit, democracies and regimes alike.

    Now, pay me my roubles, cause I'm doin gospadin Putin's dirty work, etc.

  6. Anonymous Coward
    Anonymous Coward

    America has always been weird about visitors

    No, I don't want to live there

    No, I don't want to work there

    No, I don't intend to overstay here

    Nice place to visit* but you wouldn't want to live there.

    * Debatable these days

    1. A.P. Veening Silver badge

      Re: America has always been weird about visitors

      Not even debatable these days.

      No, I don't intend to visit the Uninviting States of America.

    2. werdsmith Silver badge

      Re: America has always been weird about visitors

      Our family go in to USA regularly. We are all Esta'd up and they have our bio details etc. So going in and out is a breeze, nobody is interested in us ever. May be profiling or not, but border is not the onerous part of the journey.

      1. Bonzo_red

        Re: America has always been weird about visitors

        Standing in a queue for over an hour is not "a breeze".

        1. Chris 239

          Re: America has always been weird about visitors

          3 hour long queue at Atlanta the one time I visited there!

        2. martinusher Silver badge

          Re: America has always been weird about visitors

          They now have a fair amount of automation for simple admissions (citizens, ETSA and so on). Should take you more time to get your luggage than get through immigration.

    3. DiViDeD Silver badge

      Re: America has always been weird about visitors

      Nice place to visit*

      Not really. Been to the US twice, under protest, for business. Neither visit could be remotely described as "nice".

      From snide immigration officials (so what can a bunch of limeys do that an american couldn't do better?), through insulting hotel staff (what the hell kinda accent is that anyway?) to being refused service at a roadside diner (partly because we "talked funny", but mostly, we believed, because we were travelling with an experienced barrister they described as a "niggrah"), both experiences were nasty, brutish, but thankfully short.

    4. jospanner

      Re: America has always been weird about visitors

      Between the border goons, the cops who are trained to shoot as their first reaction, and the "good people" of the tiki-torch-and-polo-shirt variety, there is no way in hell I'm visiting the United States. Not even if you paid me.

  7. jmch Silver badge
    WTF?

    Citizens vs visitors

    "Schwartz argues that the “logic should be” that all visitors are given equal protections.

    (Bear in mind, if you show up on a visa, you can be turned away for whatever reason, realistically speaking.)"

    Of course, even though visitors are given equal protection from unwarranted search, in practice visitors who don't voluntarily submit to having their devices searched could be turned back. It wouldn't happen in practice 'en masse' because of the resulting uproar, but my understanding is that it could still happen sporadically and it would be legal.

    1. A.P. Veening Silver badge

      Re: Citizens vs visitors

      It could, but if it is even a little more than extremely sporadic, chances are pretty good Americans get refused in other countries for completely spurious reasons as pay back. And yes, half a couple will be admitted and the other half refused, just to make it really stick.

    2. Doctor Syntax Silver badge

      Re: Citizens vs visitors

      "in practice visitors who don't voluntarily submit to having their devices searched could be turned back"

      Lets explore what might then happen.

      Such a visitor, possibly getting the EFF or the like behind them (after all it's the next logical step for such organisations) sues the individual guard, any supervisor who might get involved and the agency. The argument would be that the intending visitor has been issued a visa so there would need to be a good reason for turning them away and without such reason the implication must be that it was a refusal to undergo an unconstitutional search. (And could there be any such thing as a voluntary search?) The agency then has to either try to defend itself against in a dubious case occasioned by the actions of one of its employees or side with the plaintiff and throw the employee(s) under the nearest bus.

      1. Yet Another Anonymous coward Silver badge

        Re: Citizens vs visitors

        And the chance of a foreign visitor being able to get a US court to accept the case to sue a DHS agent in the USA is the new mathematical definition of zero

        1. LDS Silver badge

          Re: Citizens vs visitors

          That may depend on who the foreign visitor is, and who invited him or her in the US... and bad news (for CPB/ICE) can be easily amplified today.

          And if the foreign visitor gets backed by a US entity, the chances become far greater.

          1. Anonymous Coward
            Anonymous Coward

            Re: Citizens vs visitors

            "And if the foreign visitor gets backed by a US entity, the chances become far greater."

            Unless the government decides to reverse the argument and call the US firm to task for trying to bring in a foreigner (YOU TRAITOR!).

      2. keb

        Re: Citizens vs visitors

        Most people have neither resources nor will nor time to start a years long court battle. They can barely make ends meet, month to month. So to them it is irrelevant what would stand up in court - practically speaking they must submit to a search.

        1. martinusher Silver badge

          Re: Citizens vs visitors

          >practically speaking they must submit to a search.

          Its also really difficult to pursue a court case if you've just been deported (or just plain refused entry).

          But then who would be dumb enough to carry a device full of "interesting" data over a border? That's what the Internet's for.

          1. Charles 9 Silver badge

            Re: Citizens vs visitors

            "That's what the Internet's for."

            That depends on how much information you're required to carry for your business. Things start to get dicey after several GB or so.

  8. Dave314159ggggdffsdds

    Certiorari

    You can't appeal to the Supreme Court in the US. The SC chooses which cases it wants to call in for review.

    If SCOTUS chooses not to review the decision of a lower court, that decision isn't affirmed, so it does not set a binding precedent for all state courts.

  9. Imhotep

    Warrants Now Optional

    Well, that's one down. Now if we could eliminate spying on citizens without a warrant, and purge the bench of the judges that rubber stamp those requests....

  10. Notas Badoff

    Well, we'll just try something else...

    What bothers me is that, at the end, when the courts have decided that the CBP and friends have neither common sense nor a good understanding of the constitution, the same people will still be employed there.

    If the people employed by the government would fail a citizenship test, that's okay? I think it would be wonderful for every American to have to pass the same citizenship test immigrants must. Hey, call that native-born citizenship merely a learner's permit! Though "Old one" above would never ever graduate...

  11. cb7

    Reasonable suspicion of a crime?

    "He/she's brown".

    1. Drew Scriver Bronze badge

      Re: Reasonable suspicion of a crime?

      Technically speaking all of us are a hue of brown.

      For the fun of it I recently put my supposedly "white" hand under a color scanner for paint pigments. The computer judged my hand to be "red". Certainly not "white". (R: 202, G: 130, B: 100).

      "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

  12. Anonymous Coward
    Anonymous Coward

    Reasonalbe suspicion

    I'm not writing this to get up or down votes, this is the truth.

    You think laws will change how we interact with people? not a chance.

    If we want look at or just take your device, or you, we will.

    Don't want your stuff or person confiscated, keep a low profile, be passive in your social media post, be anti gun, anti self defense, pro government. Say "thank you for keeping me safe" when approached by government security. When we check your ID (in the right system) your risk assessment score is a guide. (cumulative analyzed data on maybe 25% of the population, not being ranked gives you a weaker score for being safe).

    You know what "reasonable suspicion" is, it's what ever I call it. "you looked nervous to me" "it looked like you were hiding something" it's my personal opinion/judgment.

    What reasonable suspicion is not "they had a gun hanging out of they pocket" "they were screaming ala akbar and running" those things will get you shot on site. Reasonable suspicion is in all truth - the golden ticket.

    1. Anonymous Coward
      Anonymous Coward

      Re: Reasonalbe suspicion

      "You know what "reasonable suspicion" is, it's what ever I call it. "you looked nervous to me" "it looked like you were hiding something" it's my personal opinion/judgment."

      Not quite, as there is court precedent establishing a legal standard to "reasonable suspicion". Cases have been thrown out on account of "loose" interpretations of the term. You try that trick with an actual citizen, especially one with unknown connections to the Feds, you're looking at things turning ugly fast.

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