7th Circuit Punts On Border Smartphone Searches; Says Riley Decision Doesn't Affect Anything
from the thanks-for-all-the-help,-judicial-system dept
The "border search" exception again trumps the Constitution. The Seventh Circuit Court of Appeals has determined [PDF] that the Supreme Court's Riley decision that implemented a warrant requirement for phone searches does not apply at our hypersensitive border areas. In this case, the border area affected is [squints at ruling] Chicago's O'Hare Airport.
Anyway, CBP and DHS investigators had their eyes on a man returning from a suspicious trip to the Philippines. Suspecting the man was engaged in sex tourism, he was stopped by CBP officers upon his return. Lots of things didn't add up so the CBP asked for permission to search his phone. The officers made it clear this request was simply them being polite. They were going to search his devices anyway.
After completing this check of [Donald] Wanjiku’s bags, [Officer] Toler turned his attention to the cell phone. The phone was password-protected, and Toler began by asking Wanjiku to unlock the phone. Wanjiku initially resisted but relented when Toler told him that everything was searchable at the border and that the phone would be seized, unlocked by a “lab,” and examined whether or not Wanjiku unlocked it.
A cursory examination uncovered a couple of photos that may or may not have been child porn. (The officer said he couldn't determine the subject's age and the district court found this testimony credible.) A hard drive the suspect had in his bag was subjected to a "forensic preview" that only scanned allocated space for files, rather than mirror the drive in its entirety. A similar preview was performed on the man's Samsung phone. In both cases, child pornography was discovered by agents. Further searches were performed the next day.
The defendant challenged the evidence, pointing out that the Supreme Court's Riley decision requires the use of warrants for phone searches. The government argued that it needed nothing at all to perform invasive searches of travelers' devices. The court says neither of these polar opposites are correct. It also says it really doesn't care who's right, who's wrong, or where the line should be drawn in relation to border searches and the Riley decision.
The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.
Love to watch courts avoid thorny issues affecting the privacy of millions of travelers.
The appeals court says the Supreme Court only requires reasonable suspicion for border searches. This apparently still stands despite the extra protections extended to electronic devices by the Riley decision. The appeals court cites a 1985 Supreme Court decision in defense of its unwillingness to examine the issues raised in the year of our lord two-thousand nineteen. As the Seventh Circuit sees it, the government's interest in securing the borders will always be able to undermine Fourth Amendment protections -- even when this interest encompasses things that don't actually threaten the nation's security.
The final position the court takes -- at least in this case -- is that nothing more than reasonable suspicion is needed to perform any search at the border. And that's even if the "border" is an international airport, rather than a point of entry actually located on a border. It relies on the inaction of several other appeals courts to come to this conclusion, ensuring the zero-privacy status quo will live on for at least a few more years, falling well behind the advance of portable technology.
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Filed Under: 4th amendment, border search, cbp, dhs, privacy
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"ensuring the zero-privacy status quo will live on for at least a few more years"
If by "few more years" you mean "as long as the US government exists", then yes I agree with you.
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Re:
Nothing to hide, nothing to fear.
Looks like that search was more than justified, and productive.
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Re: Re:
And that's why you live in a glasshouse, right?
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Re: Re: Re:
FFS stop feeding the troll. He posts the same nonsense day after day and people bite every time.
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Re: Re: Re: Re:
At least we know where Poochie is.
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Re: Re:
justification is not an after-the-fact deal. what about the thousands who receive the same treatment which is not "justified" afterward?
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Re: Re:
Yup ... completely justified - until they accuse you and demand access then it is definitely over reach and illegal.
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Re: Re:
And when its you electronics being searched will you still think that warrantless searches are a good idea?
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Re: Re:
Date of birth and Social Security number, please.
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Re: Re: Re:
They ask for SSN?
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You've gotta wonder...
...how stupid people are. Phones have been being searched for years. WHY would anyone but a complete moron put criminal evidence on one?
I'd like to say that they'd stop searching them after a year or two of not finding anything, but I've been accosted at the Canadian border because it's apparently illegal to NOT have a cell phone.
Most advanced spying and tracking device ever conceived, and people carry them on purpose. Incredible.
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Re: You've gotta wonder...
Not as Incredible as placing a Mic array in your house, maybe even one with a camera freely. Like an Amazon Echo device or a Google Home device.
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Re: Re: You've gotta wonder...
Social Darwinism at its finest.
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Re: Re: You've gotta wonder...
"But they don't listen ALL the time!" Gods...
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Re: You've gotta wonder...
Flip side... once it's out of your hands and sight, they can put anything they want on there and then "discover" it for the record. Same with tablets, laptops, and other devices. Saves them the hassle of "finding" physical objects in your luggage.
Have any confidential government or business information with you? How about HIPAA data in the US, or the several categories of confidential data in the EU? Any business documents that are confidential or under nondisclosure?
What if the Fed leaves that information on an old hard drive that winds up on eBay? It has already happened a few times.
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Re: You've gotta wonder...
Just because you have to carry A cell phone doesn't mean you have to carry THE cell phone. Even those with nothing to hide would be better off to have as little content on their device(s) as possible. It takes a lot less time to search an empty device than one filled with selfies and other crap.
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Numbphile
Am I the only one who has considered creating my own encryption system purely to watch them try to figure out what I did? Using MP3s as keys was my initial idea but it has advanced quite a bit since then. Whatever you use has to be widely available, stable and unchanging and innocuous.
I suppose the next step would be creating an independent company that claims the ability to crack that encryption and then waiting for someone to pay for the privilege of seeing your collection of Ebooks.
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Re: Numbphile
Wow, some people really don't like this ruling. Can't imagine why.
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Re: Re: Numbphile
Worse, they can do this to anyone 100 miles into the country from the border. That's a huge part of the country. That's almost all of Florida.
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Re: Re: Re: Numbphile
Compelling state interest in stopping terrorism overrides the constitution.
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Uh…
Nothing overrides the constitution.
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Re: Uh…
Compelling interest does:
https://en.wikipedia.org/wiki/Strict_scrutiny
DUI stops are the best example, since they violate the presumption of innocence to serve the government interest in stopping drunk driving.
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Re: Re: Re: Re: Numbphile
The oath of office for every position within the US Government states that the oath taker 'will protect and defend the Constitution of the United States'. So how can one define a compelling state interest that can override the constitution when everyone working for the state has sworn to protect and defend it?
What you are defining is actually Tyranny.
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Re: Re: Re: Re: Numbphile
Tyrants will always find a pretext for their tyranny.
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Re: Re: Re: Re: Numbphile
There is no <b>state</b> without the constitution - only bands of armed thugs and their masterminds.
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Re: Re: Re: Numbphile
Yes, that covers almost all of Florida. It also covers quite a bit more. For instance, the city of Canton Ohio (located pretty much dead center in Ohio) is only 82 miles away from Canada, so it would qualify for the "100 mile" border zone.
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Re: Numbphile
In the BBS days, we'd just chop a section out of an EXE file, encrypt it at the highest key value in PGP with a throwaway, and leave them in a 733t section to annoy anyone wanting 733t access.
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Re: Re: Numbphile
Why mess around?
Use a one time pad.
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Re: Numbphile
A lot of effort to troll the border guards. More helpful would be creating a service to which you can upload your encryption keys, that won't let you re-download anywhere near an airport or border. (Poor man's version: mail them as paper to the hotel where you'll be staying.)
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Compelling state interest overrides the constitution, as with DUI stops which presume guilt for every passing driver. That's a non-starter.
Nothing to hide, nothing to fear. The apparent sympathy to a trafficker in child porn wouldn't raise red flags, except a certain person's (not the author's) circle of friends includes others with similar "sympathies," and those who have levied false allegations of same (projection) against others. Then of course there's the REALLY suspicious activity for two members of this social circle.
What we can conclude from the article is that someone doesn't like the idea that border agents might be able to find child porn in the phones of returning travelers to foreign lands. I can't imagine why.
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Re:
If that's your takeaway from the article you are an extremely simple-minded person.
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Re: Re:
My point is the searches are not unconstitutional.
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Re: Re: Re:
Which is not what you wrote:
Hmm, which means your main concern was making innuendos.
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Re: Enquiring minds want to know
And my point is you have a guilty conscience.
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Re: Re: Enquiring minds want to know
I've heard some bullshit in my time ... wtf.
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Re:
The reading comprehension of your hair-trigger brain is astounding.
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Re:
Says the person posting anonymously. Please post your full name and address. After all, nothing to hide, nothing to fear, right?
You're returning from a business trip and you have confidential information on your phone that your job literally depends on you keeping safe and private. TSA searches the phone, reading out some of the info within earshot of everyone in the area and your job is now in jeopardy.
While you were on vacation, your wife/lover sent you a perfectly legal nude photo, that you forget you have on your phone. TSA searches the phone and all the guys start passing it around to ogle the photo. They make some personal copies. The photo eventually ends up on the net.
You're writing a spy novel and you have the files on your phone to show people. TSA searches your phone, an agent thinks the novel is some kind of coded manifesto and you spend the next 12 hours in a little room getting cavity searched.
That last one has actually happened to people, although I don't know if it was from an airport search.
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Re:
Are cell phones of the rich and influential searched at the same rate as the commoners?
Compelling state interests over ride the concerns regardless of your assets - right? And I'm sure the border patrol records show there is not bias because as we all know, only the little people are criminals.
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Believing child pornographers need to end up in jail and believing the government should uphold and protect Constitutional protections for all people (including people accused of criminal acts) are not mutually exclusive beliefs.
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Re: Jhon boy is the king of all projection.
“sympathies," and those who have levied false allegations of same (projection) against others”
Ah so that’s why you keep harping on revenge/kiddie porn
What we can conclude from the comments is that someone doesn't like the idea that border agents might be able to find child porn in the phones of returning travelers to foreign lands. I can't imagine why.
Is that the only way you can get it up bro?
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Re: I hear Thailand is nice this time of year
It’s so nice to find out you have a social circle Jhon boy. Even nicer to hear that you take orgainzed vacation trips to exotic lands to “see the sights.”
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Re: Re: I hear Thailand is nice this time of year
You have to understand that John Herrick Smith (curiously like Whatever/MyNameHere/horse with no name/Just Sayin' before him) is a strong proponent of increased government surveillance and mandated Internet backdoors. Not because it helps actually stop the crimes he claims it will, but because unchallenged surveillance is one of the end goals for copyright fanatics.
Much like champion tantrum thrower MyNameHere, whose last recorded meltdown was in late 2017, Herrick here also believes he's one of those special snowflakes who could never possibly be affected by government overreach, because he's such a model citizen.
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Damned the Constitution, full search ahead
It appears that regardless of which court, the operating instructions for the US of A are being ignored. I have a hard time believing the courts are directly on the side of those who thirst for power and control, but it is hard to tell from their behavior that they don't have some empathy for them.
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Re: Damned the Constitution, full search ahead
Compelling interest overrides the constitution.
https://en.wikipedia.org/wiki/Strict_scrutiny
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Re: Re: Damned the Constitution, full search ahead
Did Donald Trump just change his name to Compelling Interest?
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Mr. Dongerous
I did a little reading from the decision of Appeals court. This isn't just some random stop and search.
"The investigators developed a list of initial criteria to identify individuals of interest to Operation Culprit: (1) U.S. citizen(2) men (3) between the ages of eighteen and fifty or sixty(4) returning from the Philippines, Thailand, or Cambodia(5) traveling alone (6) with a prior criminal history. Along unspecified number of other passengers from the eight toten flights that investigators were monitoring that day,Wanjiku met all of the initial screening factors. That is, he is a U.S. citizen male, then aged forty-one, returning from the Philippines, traveling without any apparent companion, witha prior arrest."
It's a worthwhile read and the crowning bit is Wanjiku's email name... "Mr. Dongerous"
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Re: Mr. Dongerous
Sex tourism is seemingly more important that domestic terrorism.
I suppose it does go along with the prevailing bias in US society, violence is ok but sex is taboo. Heaven forbid you see a nipple, but that war film wannabe snuff piece better have some blood 'n guts.
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Re: Re: Mr. Dongerous
"Sex tourism is seemingly more important that domestic terrorism."
Not sure about that but it isn't just about sex tourism, it's about sex with children. I don't know about you but I think it's a pretty important thing to stop.
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Re: Re: Re: Mr. Dongerous
really?
Just one of the many instances ...
Oklahoma City bombing:
14 adults and 6 children were confirmed dead, and over 100 injured
This is not as bad as sex tourism?
Why is pedophilia the present day excuse for most everything? Seems one can do just anything and no matter how horrible it is, it is not as bad as child abuse, pedo, whatever. It has become so ridiculous people make up stories about pizza parlors with basements full of pedo. Some still believe it is true even tho the pizza joint they claim was the headquarters ... has no basement.
wtf?
They also try to claim there is no domestic terrorism. Liars.
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Re: Re: Re: Re: Mr. Dongerous
He said:
You said:
I'ma go with "Yes, really."
...did you just use a strawman and a relative privation fallacy in the same sentence?
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Re: Re: Re: Re: Re: Mr. Dongerous
Well of course it is important to stop.
I find it a bit concerning when important things are used to promote ones own monetary gain with little regard for the consequences.
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Re: Mr. Dongerous
Do you know if they left out an "and" or an "or" there at the end? Personally I'm betting that's an "or", which basically means everyone, excepting maybe a few foreigners.
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Re: Re: Mr. Dongerous
"Do you know if they left out an "and" or an "or" there at the end?"
Okay, this time I'll do your work for you.
Here is the rest that you are too busy to be bothered to read..
"Investigators sought to whittle down the resulting list by further investigating these travelers before they arrived at O’Hare. Using government databases1 and publicly available 1 The investigators used a DHS system called “TECS” to conduct their research. TECS allows investigators to search other databases linked to CBP(continued...)
No. 18-19733social media, they determined that Wanjiku’s prior arrest was for contributing to the delinquency of a minor,2 that this wash is third trip to the Philippines in two years, that this trip was sixty days in length, and that he had no apparent affiliation with the Philippines other than these trips. For example, they were unable to find business or family ties to the Philippines for Wanjiku. The investigators determined that Wanjiku had booked a prior flight using an email address that incorporated the name “Mr. Dongerous,” which heightened their suspicions based on their belief that this was a play on the word “dong,”which is vulgar slang for penis.3 Using that email address, they searched Facebook and found a public Facebook page associ-ated with that address. The person in the profile picture1 (...continued)including the National Criminal Information Center (“NCIC”), the National Automated Immigration Lookout System (“NAILS”), and the Arrival and Departure Information System (“ADIS”), among others. Together, these databases provide information about passengers’ arrival and departure records, criminal histories, immigration status, and email addresses and phone numbers used to book travel.2 CBP Officer Adam Toler testified at the suppression hearing that he could not recall when the arrest had occurred and did not know how it was resolved. He also did not know the specific allegations underlying it.3 During cross-examination, Wanjiku’s counsel suggested that the emai laddress was a play on Wanjiku’s first name, “Don.” Wanjiku placed noevidence in the record regarding the origin of the email address, and of course, it is possible for the address to be a play on both “Don” and “dong.”As we will discuss below, in determining whether a search violates the Fourth Amendment, a court evaluates only how a reasonable officer would have interpreted this information.
4No. 18-1973(whom they believed to be Wanjiku) was wearing a mask of the type that one wears to a masquerade ball. Photos of“friends” on that page appeared to be “very young” relative to Wanjiku’s age.4 The investigators for Operation Culprit found all of this suspicious enough to warrant sending Wanjiku to a more thorough secondary inspection on his arrival at the airport."
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Re: Re: Re: Mr. Dongerous
Okay, I agree that nicely justifies searching Mr. Dongerous.
What about Mr Fouche, did they need anything other than a name for him? What about the 10,000 other males that they searched, did they need anything other than the fact that they were male? What about the ten thousand unaccompanied passengers they searched, did they need any fact other than that they were unaccompanied?
You keep trying to make this about Mr Dongerous, but if you were capable of reading an article you would find out that the concern is broader principles; it's not about one person, it's about citizens as a whole and how they are treated by our government.
Take me for example: I am a: (1) U.S. citizen (2) man (3) between the ages of eighteen and fifty or sixty[-two], and (5) I travel alone. Oh, and my name starts with the word "coy." Can I expect to be searched the next time I fly from Orlando to Montana via Salt Lake International or not? That sort of seems to depend, doesn't it, on the question of whether or not a search requires all of those criteria or just one. With CBP rules, it certainly doesn't require crossing the border.
And on my phone I keep my email (Gmail); my tax returns (Google Drive); statements from my bank (bank app); and, pretty soon, a list of everything I buy (Google Pay). Not to mention all my passwords in a password wallet. Will they really be able to search it just because I happened to pass through an International Airport?
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Re: Re: Re: Mr. Dongerous
That is more than enough to get a warrant, and do so before he got on a flight back to the US. It's not as though they do not get the passenger lists for every flight into the states.
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so what the hell is the point of having any decisions come from the Supreme Court, if other courts and judges can just ignore them? in fact, what the hell is the point of having a Supreme Court in the first place? seems to me that, like everything else in the USA, court decisions may as well be taken with a pinch of salt! if 1 court doesn't like a decision, it can throw it out and do whatever the hell it wants instead!!
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Re:
The 7th circuit considers a "border search" as something different from a traffic stop (which was in the case for the supreme court.) I am sure they spelled it out in their verdict.
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Re:
The Appellate court will overturn violations of SC rulings on Appeal.
They do NOT like Judges who ignore such rulings, and a Judge may find themselves censured if they continue to rule otherwise.
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Re:
"so what the hell is the point of having any decisions come from the Supreme Court, if other courts and judges can just ignore them? "
It is more than just courts and judges... the President and his cronies do not think the law applies to them as they break it on a daily basis ... and then brag about it to their dictator buddies.
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Time Consuming Search
Whether or not you're travelling with a collection of illegal material I would be more concerned about the waste of time being detained while the device is searched. You could always use a burner phone with your primary phone calls forwarded and store the content separately and retrieve it at your destination (or not). There is a concern that spyware might be installed. In any case searching an empty device is probably a lot faster than one full of selfies, videos of your cat, wedding, baby and all those inane text messages.
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