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 …
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.
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.
@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.
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.
@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.
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.
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...
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.
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?
"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.
""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.
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.
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.
"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.
"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.
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.
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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.
"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.
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>
"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...
"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.
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).
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)
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.
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.
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."
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.
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.
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...
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.
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.
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.
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) 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.
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.
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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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