If Courts Won't Protect People's Phones At The Border, Congress Needs To Act Now
from the it's-time-to-move-past-'but-the-border-tho' dept
Invasive searches of people's phones at border crossings and international airports have become standard operating procedure for US border control agencies. The usual justifications have been made: national security and preventing contraband from crossing the border.
Those claims may have some merit, but it doesn't explain why the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn't. It also doesn't explain why agencies like Customs and Border Patrol (CBP) continue to claim the program is too important to be curtailed, yet somehow not important enough to be competently supervised or quantified.
For the most part, courts have agreed with the government's assertions that searching devices without warrants or (in many cases) articulable suspicion is just good national security work. Only one court has pushed back, requiring searches to be limited to rooting out suspected contraband, rather than just examining phone contents until agents find something to get reasonably suspicious about.
The Supreme Court said warrants are needed to search the contents of cell phones. Unfortunately, our nation's borders have long been considered blanket warrant exceptions -- an exception that extends 100 miles inland from every border and international airport. It also limited this to searches "incident to an arrest," and in many cases, people whose devices are searched at the border are never arrested.
This ruling tends to work well away from the border, since seizures of phones without an arrest is generally considered an obvious violation of rights, which makes any subsequent searches illegal. But this phrase doesn't do much to limit searches at the border where rights are assumed to be mostly waived, making the initial seizures lawful, paving the way for warrantless searches that may violate the Fourth Amendment, but in a place where courts have said violating the Constitution is cool and good.
And so the courts, having abdicated their checks and balances mandate, tell plaintiffs "hey, if this bothers y'all, maybe ask Congress to get it changed." Because if Congress says it's ok to waive all rights near the border, who are the courts to decide direct Supreme Court precedent applies to border phone searches?
Well, maybe the courts need to do a little local application because Congress can't be arsed. A bill to restore the Fourth Amendment at the border has been submitted and denied in the past. It's back again. Maybe this time -- given the increasing distrust of law enforcement and federal border control efforts -- it will get further than it has in the past.
Here's the EFF's summary of Ron Wyden's "Protecting Data at the Border Act," which (against all sanity) offers up the novel idea that the federal government should respect people's rights.
Unfettered border searches of electronic devices pose a significant threat to personal privacy. That’s why we urge Congress to pass the Protecting Data at the Border Act, a bill recently re-introduced by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) that would create a warrant requirement for these types of searches, thereby protecting our constitutional rights at the border.
As the EFF points out, this is the third attempt to restore the Fourth Amendment in the federal government's gray area -- the large parts of the United States known unofficially as the "Constitution-Free Zone." The bill wouldn't go so far as to enact a warrant requirement, but it does add a bunch of protections that currently don't exist.
Consent must be obtained in written form. No more Google Translate or pidgin Spanglish from border control officers who will take consent even if it's expressed with upside down question marks. And it's not all of the Fourth Amendment, but it's more than we have now: border control officers need to have probable cause someone committed a felony before seizing their device. If they don't have that, any post-seizure search would be a de facto rights violation.
There are also reporting requirements that mandate more transparency from border control agencies on searches and seizures of devices. And agencies are forbidden from retaining communications and data that can't be shown to be related to criminal investigations or charges.
It's not perfect but it's far more than we have now. And, if enacted, would curb CBP's thirst for warrantless searches, forbidding it from getting the boys in the boat to sail out on fishing expeditions just because. This is the third try for Wyden's bill. Let's hope it's the charm.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, border, border exception, border searches, cbp, device searches, protecting data at the border act, ron wyden
Reader Comments
Subscribe: RSS
View by: Time | Thread
If they won't protect you from a police border body cavity search what makes you think they'll protect a phone from one.
[ link to this | view in chronology ]
Re: Cell Phone body cavity search
For one, there's very little room inside those things. Usually they just settle for examining the data held by them.
[ link to this | view in chronology ]
"...Congress Needs To Act Now"
Any words placed prior to that statement are a fantasy.
[ link to this | view in chronology ]
Re: Fantasy about Congress
yeah, it's absurd to believe our Constitutional rights should properly depend upon some minor ad hoc legislative proposal drifting around a thoroughly dysfunctional imperial Congressional bureaucracy.
Congress is the Problem -- not the Solution.
Recall the original Patriot Act that openly trashed the 4th 5th 6th Amendments -- Congress passed that horror with an overwhelming majority (including the vote of Ron Wyden).
Reality is that Congress, Supreme Court annd Presidents find the Bill of Rights an obstacle to their governing agenda -- and will never seriously adhere to those fundamental legal requirements.
Ya got big big problems when the highest institutions in American government feel free to ignore fundamental U.S. law.
Most Americans are so battered and confused by their behemoth central government that they can't recognize what's really happening to them.
[ link to this | view in chronology ]
Constitutional exceptions
Where does it say in law that the constitution doesn't apply in certain situations?
[ link to this | view in chronology ]
Re: Constitutional exceptions
In court decisions, for example:
https://www.techdirt.com/articles/20180526/08271639919/11th-circuit-says-no-reasonable-susp icion-needed-invasive-device-searches-border.shtml
[ link to this | view in chronology ]
unsanitized data
One thing I've seen companies do is to issue cells and laptops that have been wiped, and tell folks "Don't load anything. Once you've left the country, download your work load from your cloud account. When you return to the country upload to the cloud, smash the cell and laptop drive before you get on transportation." The company isn't doing anything illegal, but some customer data is confidential and they don't want any prying eyes on it no matter who those eyes belong to.
[ link to this | view in chronology ]
Re: unsanitized data
Yep. My company for example. When traveling to the USA we were only allowed a laptop that had been wiped and had never been connected to our intranet. We also got issued a band new phone that we were not allowed to use untill we entered the USA. It got so restrictive that I simply instructed employees visiting the USA to buy any phones and laptops out there and bin them before they returned.
[ link to this | view in chronology ]
Have at it!
This is a great reason to buy a burner phone for when you go on vacation.
[ link to this | view in chronology ]
The real bad guys aren't going to go through security with their
The real "bad" guys aren't going to go through security with their phone and potential evidence, so you're left with the ones who don't believe they have anything incriminating. I get that searches for drugs or weapons are needed, I don't think it should be extended to phones. Security at airports should only be about the immediate needs of smuggling and safety for a plane. Not an excuse to take advantage of a power and rights imbalance to access information.
[ link to this | view in chronology ]
Re: The real bad guys aren't going to go through security with t
I get that you have not been paying attention.
Drug searches are more about money and suppression of the lower classes; the injury from drug laws generally exceeds the injury from the drugs. The initial reason for drug laws was to provide employment for those who would otherwise have been jobless following the end of prohibition, and later drug laws were part of Nixon's ``southern strategy'', allowing the GOP to draw the KKK voters who might otherwise have voted for Wallace.
Searches for weapons are not so much necessary as bootless. Someone needing a weapon on the plane can get it there without problem, according to the TSA search test statistics.
[ link to this | view in chronology ]
This is the third try for Wyden's bill.
This is the third try for Wyden's bill. Let's hope it's the charm.
wont happen! government is too hungry for your meta data.
and it wont stop until one of there own gets there phone raped!
[ link to this | view in chronology ]
i see they are back to raping phones again!!!
a few years back we had the problem with CBP raping phones and other electronic equipment. they ended up getting a policy change that required at least reasonable suspicion before they could rape your device! it looks like they ether forgot about the new policy or got it tossed because it just got in there way when ever they wanted to search for what ever!
[ link to this | view in chronology ]
Yet another reason...
"...the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn't"
The USA used to be a half-decent tourist destination - I would suggest that border crossings haven't increased because people, like my good self, have been avoiding the USA ever since they let the cops steal our money and the TSA rummage through our junglies.
[ link to this | view in chronology ]
Re: Yet another reason...
After experiencing first hand the contemptuous attitude of the TSA and police, I vowed never to go back to the USA.
[ link to this | view in chronology ]
we need a new app
we need something to keep from anyone gaining unauthorized access to your phone. so plug it into a computer and a password is needed. enter the wrong one and the phone gets wiped! and for the bonus round a wrong password injects a tracker on the computer that can call home! this would be a great anti-theft deterrent. and for the cherry on top. a virus is loaded on to the offending device that will spread to all connected devices on that network and render them useless.
just think of all government computers that could be wrecked with something like that!
[ link to this | view in chronology ]
Re: we need a new app
As to the passive security wipe, thats exactly how iphones work. Except that, because humans are human and therefore make mistakes, you don't issue a zero tolerance policy. I'd love the ability to tune your tolerance for failure, iPhones currently give 10 attempts (or infinite if you disable the wipe feature). id like to be able to reduce that make my own choice for my tolerance of the tradeoffs between security and usability. But not so much that am willing to I sacrifice ease of use (Such as when I tried android and had to find the perfect phone/android build combination and hope community updates keep the system up to date) (not to mention Android being a much less secure environment out of the box). And not so much that I want to give access to my entire phone to another random party.
The fact that humans are human and therefore might make mistakes like fat fingering a 5 instead of an 8 or the system fails to register a character or the touch screen translates a tremor as pressing the same key multiple times means your suggestion to also include offensive measures is WILD. Oops, the system accidentally regitered your penultimate key press as two key presses? Your computer and phone are now slag. Have fun!
Like seriously. Think about this for 2 seconds.
[ link to this | view in chronology ]
Re: we need a new app
If your device infected a government computer with a virus, or impaired its functioning in any way, you'd probably be charged with domestic terrorism.
[ link to this | view in chronology ]
Border search of phone is trivially bypassed by factory resetting it and then restoring from a cloud backup after the fact. All in all actual criminals do know their phones may be searched at the border so they'd delete anything incriminating first. But I suppose it's worth something to someone to catch people who aren't seriously trying to hide anything.
[ link to this | view in chronology ]