Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?
This is a ruling by a District Court. It could be appealed to the Circuit Court, and then to the Supreme Court.
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
Exactly this. (and for those unfamiliar with the terms, in federal courts "Circuit Courts" are the first level of appeals courts, which both sides have a right to be heard in, followed by the Supreme Court which is discretionary and only takes on big cases)
When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.
I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.
If I had to wager, SCOTUS will uphold warrantless border searches.
With this SCOTUS it's really hard to tell... while they've mostly aligned to state actors, there are a few instances, in particular 2A cases where they've leaned into favoring civil liberties over state actors, so it could really go either way IMO.
That said, my own take has been for a while, that if I travel across borders that I'd specifically buy a burner phone and something cheap like a chromebook, possibly in the country being travelled to and expressly wiped clean before travel if taking said device across the border. Keeping some printed/written notes with contacts that I can establish on the other side.
It's kind of weird in that I don't think the above is excessively paranoid given how intrusive state actors can be, not just the US.
SCOTUS doesn't always make shitty decisions. Sometimes dozens of lower courts will all make a shitty decision and then it gets to SCOTUS and they somehow use their greater resources to produce a better decision contrary to everyone's expectations.
That 2012 decision was unanimous, including all the conservatives. Roberts, Thomas and Alito all held GPS tracking without a warrant to be unconstitutional, along with Scalia (now deceased).
If the exact same case came before the Court today, would it rule differently? I doubt. One must assume Roberts, Thomas and Alito would rule the same way. Ideologically, Gorsuch, Kavanaugh and Barrett are all less conservative than Thomas and Alito, more conservative than Roberts – which suggests if Roberts, Thomas and Alito are all ruling the same way, probably Gorsuch, Kavanaugh and Barrett would too. And Jackson is both a liberal, and has been seen to be defendant-friendly even when the other liberals wouldn't be (see when she joined all but of the conservatives in the recent J6 case, while Barrett joined the remaining liberals). So probably, that case would go the same way today as it did in 2012.
Now, this is a separate issue, so the outcome of that 2012 case isn't decisive in how this case would be decided (if it ever reaches SCOTUS). But it would be wrong to assume that SCOTUS becoming significantly more conservative is necessarily going to change the outcome.
A textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment. I don’t think we have much to worry about on this topic from the current court.
For the Hacker News members who are reflexively downvoting my comment, presumably for political reasons, I refer you to Riley vs. California, the 2014 SCOTUS decision that ruled warrantless searches of cell phones were unconstitutional:
The opinion was written by Roberts with a concurrence by Alito.
Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
> textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment
Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)
Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.
Originalism would also have trouble because phones didn't exist when the Frames wrote or the 18th Century public read the Constitution.
Originalism is funny, by the way. By its tenets, if you don't like what the Constitution says, you can pass an Amendment with the exact same words as the Constitution but those words would have new, different meaning.
Scalia’s originalism—the dominant strain today—is textualism, as explained in the very article you linked. Specifically it is originalism in terms of the original public meaning of the text, or in other words, textualism with the understanding that language changes over time.
Alternatively, when the Supreme court composition has changed and shown a willingness to view old decisions as bad law, its a great time for a district court to break rank with precedent.
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.
Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
I talked to several including the lawyer of Ashley Cervantes v US , a woman warrantlessly digitally raped (fingered) by doctors at the same hospital in search of drugs. Her case was publicized and far more egregious.
They essentially told me they'd given up.
I also reported a nurse who acted without consent to the nursing board. The board covered for her. And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented.
The ACLU occasionally picks up cases but rarely and even rarer for an unsympathetic white guy.
It feels pretty hopeless honestly. They have QI,the courts, and every institution covers for them. At the border, CBP is god, even immune from 1A right to record them.
> And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented.
Step-daughter was involved in a car accident at a lighted intersection. No cameras, no witnesses, nothing, just her in her car, and the other driver in his.
Police officer: "Did you have a green light?"
Step-daughter: "Yes, I had a green light."
He goes over to the other driver, and is back within two minutes. "The other driver said he definitely had a green light, so I'm issuing you a citation for failure to obey a traffic signal."
If the government broke the social contract so deeply to me, I can only imagine how I would react. You are truly a sovereign citizen now. The government has no legitimate authority over you anymore.
Or get arrested in Florida. Even if charges are dropped or you're found not guilty, the state will bill you for your jail stay, and unsurprisingly, not paying that will result in you being subject to arrest...
I had a cop search my car once and he “found” drug paraphernalia. I don’t do any drugs, ever in my life. I’ve seen what it does to people from a young age and I had never seen that paraphernalia ever before in my life; also, this car was brand new and I had only driven it less than two miles from the dealership. My only crime was speeding on an empty road in a brand new car, but this cop taught me they are all crooked fucks.
So, there’s probably missing information here, but I also believe it at face value.
I do not think one bad experience means they are all bad. This trope is perpetuated so often that even mentioning it gets massive downvotes. Popular opinion doesn't always mean they're "right".
I think we all need to learn that there are different ways of interpreting things that influence people's opinions, and we should be open to the possibility that we might be "wrong" in someone else's context, myself included.
Why were they searching your car in the first place? Did you consent to it? Was there probable cause? Did you fight it in court?
I think we all have to do our part to expose any possible corruption if we ever want it to change... if that's even what happened. Just shrugging and saying "yea that happens" is not the answer IMO, and one could argue you're both wrong at that point.
> I do not think one bad experience means they are all bad. This trope is perpetuated so often that even mentioning it gets massive downvotes. Popular opinion doesn't always mean they're "right".
"Good" cops that stand up for bad cops are also bad. And if there are enough bad apples it doesn't matter if there are good ones as you need to assume whoever you are interacting with is gong to fuck you over.
Those good cops could also be scared of retaliation just like us, and quitting your job over it doesn't help the problem either, so I'm not sure what the right solution is. But I don't think one should automatically assume ill intent.
I have had overwhelmingly positive experiences with police in general and I know many others have as well, and of course I know some with bad experiences too, it's a spectrum of course.
They don't mention any probable cause, reasonable suspicion or a warrant. There had to have been something like that for it to make it all the way to OP appearing in court after a strip search found nothing.
Even if there wasn't, at that point they could have went to court, the media, anything, but they chose to never mention it and just shrug it off while complaining online, while people keep telling stories like this and it's no wonder people scream ACAB if they let it happen to them. Not only did they shrug off the police, but the hospital charging them, and then admitted they did nothing about it, and let it destroy their credit.
I admit that my prior is also that op is not telling the whole truth, but someone who is abused to having the energy to seek remediation is not all that surprising either.
US v. Cano: "we hold that manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion". Neither "without individualized suspicion" nor "a showing of reasonable suspicion" are a warrant requirement. This is not a court "ruling against warantless border searches".
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
I think another problem is that such suspicion/probable cause is often "made up", or in other words, people often disagree on someone's quick judgement call where it wasn't obvious to everyone.
The article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or North Korea, but in the end the decision is, as a foreigner you don't have those rights, the government does what it sees fit.
The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote).
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
That sounds too good to be true. I neither have the legal skills nor the knowledge about the US constitution to tell you where it's incorrect.
I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
There are indeed many things about the US system that treat foreigners as shit with respect to visa access. But none of that is about giving fewer constitutional rights to foreigners who are physically inside the US.
Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.)
The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel.
Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement.
Here are two examples of how foreigners have more (and approximately full) rights while inside the US:
Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind.
If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved.
Another point of view is: In practice you have to compromise. I certainly don't approve all measures of the government were I live or the government of my passport (which are different). Still I am not actively trying to leave the country or change my citizenship although there would be no big hinders to do either.
For travelling I am much more free to set my preferences. And the US has happened to end up on my personal shit list because of their border procedures. I know them since the 1980s and they have always been some kind of unpleasant, although nothing bad has ever happened to me. I have no criminal intent, you just need to learn to play the game to get through. But in the digital age I don't want to play their game anymore.
I live in the Schengen area. So I can travel to all countries in the Schengen area by just carrying a government id without any regular border controls. (Yes, there are countries that have broken the rules of the treaty.)
In general I am very skeptical about the concept of citizenship. It's an instrument of discrimination.
A continent where laws capable of sending you to prison for freely expressing certain opinions is your counter example to a lack of certain advanced individual rights in the U.S.
A country where the highest court in the land can rule that if you are convicted and sentenced to death, but are factually innocent, that the courts have no obligation to reverse your conviction, and that if you want off death row, you should appeal to the governor. And if the governor says no, well, sucks to be you, you're getting executed anyway.
Many examples abound. Don't be lazy and do a google search. Granted, many of those opinions that create grounds for legal sanction in the EU are disagreeable ones, but that's how freedom of expression as a real right works, it applies to the shit you don't like or want to hear, not just socially condoned opinions.
Multiple EU countries in the Union as well as the statutes of the EU itself condemn and prohibit a wide range of speech under the grounds of offensiveness. This includes hate speech laws with very broadly defined wording, laws against holocaust denial and laws against speech that is offensive to certain identifiable groups. Misinformation laws are also being formulated. However much you might think that many of the above forms of expression are repulsive (I'd likely agree with you on much of that repulsion by the way), such laws can easily be contorted to include all sorts of censorship. Aside from the censorship, free expression really should absolutely also include legally protected free expression in a public context to espouse views that are repulsive and intolerant too.
Not OP of that particular statement, but in Germany you can get imprisoned for denying that holocaust has happened.
However, I would question whether denying historical facts is an opinion. There seem to be fewer cases of people demanding that the holocaust should be resumed. That I would call an opinion. I assume that it would lead to prison if repeated often enough, albeit based on a different law. Still, I am more willing to travel to such country than to a country requesting my passwords at the border. Call it illogical or not, it's my preference.
> However, I would question whether denying historical facts is an opinion.
Historical facs have a tendency to change based on the current political climate. Which is to say, they are always more like opinions.
Although a better example would be insulting a police officer or politician, which can include as bening things as making fun of them on twitter. Granted, this is more a concern for citizens than it is for tourists so I agree with your assessment that the US border controls are a bigger threat to you as a traveller.
Didn't a former Greek finance minister recently get banned from Germany for political reasons? In France it is illegal to deny the holocaust but legal to deny the Armenian genocide.
One noteworthy example of how absurdly politicized these kinds of speech restriction laws can be. Was the mass slaughter of up to 1.5 million Armenian men, women and even little children and babies somehow qualitatively less grotesque? Or perhaps the speech law itself is a muddled, politically oriented idiocy.
Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments.
And with the data sharing, there's nothing stopping Canada from sharing with the US.
True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.
The only government action I think you might mean, the use of the Emergencies Act against the convoy protest occupying downtown Ottawa and its organizers and funding, might mean was in fact ruled by the Federal Court to violate section 8 of the Charter without being saved by section 1, though an appeal is still underway.
That said, as far as I’m aware based on publicly available evidence (not simply speculation), in that situation the government was motivated more by the significant extended disruption from the protest than by the particular political views involved.
>And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.
So these criminals that have been performing the illegal searches. The next step is they'll be charged with false imprisonment, extortion, and conspiracy, right?
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
There is an asymmetry in your reasoning that I don't doubt is in many court decisions due to sovereign immunity, but need not be universal. If the law is declared unconstitutional, then that law was unconstitutional the whole time. Therefore there was no legal basis for the people-who-happened-to-be-employed-by-the-government to do what they did. And I'm pretty sure the laws against false imprisonment and extortion weren't passed yesterday.
Sorry, but that's insane. You can't legitmizime criminalizing and imprisoning someone for the the crime of not having a time machine. You can legitimize the government making amends for its mistakes.
You do not need a time machine to look at the law as it stands, judge that the legality of an action is unclear, and then prudently choose to not do it. As I said, this is the dynamic everyone who is not a government employee has to deal with, and it encourages a dynamic of staying well away from the edge of the law.
Err, what? The constitution is itself part of the law. If a legislative law is ruled unconstitutional, then that legislative law is invalid, and always was. Ergo there was no authority to perform the searches they did.
You seem to be implying a different model under which unconstitutional legislative laws would remain in effect, but the people who passed them would be personally responsible for having gone against the constitution.
The point is to make government agents afraid from testing the borders of the law. Regular citizens don't get any breaks either if their scheme was later ruled unlawful by a court.
I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?
The states might apply this differently, I'm out of touch, but under fed law, I think you can only apply new SCOTUS rulings to criminal cases that are still not "final." (e.g. haven't gone to trial, or haven't completed their course through all 11 or 13 stages of appellate review.. however many there are these days inc state + fed + habeas)
There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.
E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:
This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.
Is there a law that explicitly allows these unconstitutional searches? If so then perhaps what is needed is consequences for the politicians that enact unconstitutional laws. Just letting the government fuck over people and then go "oops no hard feelings?" when found to be acting against the rules they are bound to is not a good solution.
Well, it's more complicated than that under federal law. If there is no completely specific SCOTUS ruling on the issue then it comes down to whether there is a published opinion by the Circuit Court in the government official's area. If there is, then they are expected to have read it and taken it into account when they acted. If they violate that opinion then they are liable.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
Sure, you're talking about legally what is, due to the concepts of sovereign immunity and more specifically qualified immunity. My point is that the concept of sovereign immunity itself needs to be drastically curtailed (to the point that qualified immunity would be moot).
They can demand, and you can refuse. However if you have Face ID or other biometric measures, they can (legally) force your finger onto the sensor or hold the phone up to your face to unlock it for their needs.
Passwords are personal data, faces and fingerprints are not, apparently.
>Passwords are personal data, faces and fingerprints are not, apparently.
The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.
You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
That’s like saying if my house is protected by a passcode lock, the cops can just break down my door and walk in. Sure, they can, but there are clear rules of when they can enter and search my property without my consent. So, sure, they can enter my phone, but that doesn’t mean they have the right to in the first place.
The comment you’re replying to specifically discusses Fifth Amendment rights. The police would not generally be violating those rights by entering your house without a warrant. That would be a Fourth Amendment issue.
(One might argue that breaking your door without due process of law would be a Fifth Amendment violation. I have no idea what existing precedent says about that.)
Android has something similar - in the power menu [1] there's a "Lockdown" button which will lock your phone, disable biometrics, and disable showing notifications until you unlock with password.
Depending on your version and flavour of Android you may need to enable this "Show Lockdown Option" in your settings.
[1] Opening this varies - my pixel is power + vol up, some phones are hold power, etc.
People want to get into the US without having their personal thoughts searched. US citizens also have the right to enter the US without personal thoughts searched.
The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").
Even better would be to not even bring a phone in the first place, and get a temporary one after arrival. Or get a prepaid one beforehand with nothing on it, if you're confident that won't be suspicious.
> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Does a strip search also require a warrant though?
Sure but I learned that hard way when I got the sealed probable cause statement of my warrant, the detective claimed an unnamed officer claimed an unnamed dog alerted and that set off that intermediate standard.
So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.
It’s actually the native integrations that do this. Android Auto and CarPlay basically act as a display for your phone and little data leaves your device. Connect via Bluetooth to many vehicles and that data syncs to the car’s infotainment.
Whenever I pair my Android phone to e.g. a headset, it asks if I want to share my contacts. And, I suppose, also text messages, and I just checked there's that option with the paired vehicle (and it was unchecked).
Oddly enough, there are screen-sharing and/or remote-display protocols which ... are limited to sharing screen-drawing properties and aren't wholesale data vacuums. X11 and remote desktop come particularly to mind.
Several of those can be limited to specific applications, e.g., by setting the $DISPLAY value (X11). For remote desktop that's a bit more challenging but can be managed to an extent using Group Policy settings under MS Windows:
> CarPlay is just your phone using the car’s screen
Then why does iOS warn me that my car will receive data from my phone when enabling car play? Does this just mean the screen, or does it get the texts/calls too?
Not sure on what exactly this is referring to, but I know contact names are exposed, at least when there’s an active phone call. My vehicle shows the contact’s name on the driver display (which CarPlay doesn’t control)
What I find more egregious is, if this somehow sticks, non-USA citizens are still not protected from these invasive searches. This should be a human rights issue, not a local law.
Of course not but they should still be protected when they seek permission to do so. Perhaps more countries need to enact symmetrical immigration rules where US citizens are subject to the same bs that the US subjects their citizens to. Then again, US citizens seem to be unbothered by the five eyes arrangement where the US cannot spy on their own citizens but they can politely ask their allies to do so so maybe this wouldn't get them to see the problem. Still would be fair though.
I asked a friendly metermaid to "see if your plate scanner can decipher my plate" and it failed. The few paper parking citations I've had placed upon my vehicle also always seem to trace back nowhere...
This can also backfire and you will end up with all the traffic violations of other vehicles where the license plate could not be read for some reason.
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
(Credit for case law information to: https://www.wilmerhale.com/insights/client-alerts/20231115-o...)
When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.
I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.
If I had to wager, SCOTUS will uphold warrantless border searches.
That said, my own take has been for a while, that if I travel across borders that I'd specifically buy a burner phone and something cheap like a chromebook, possibly in the country being travelled to and expressly wiped clean before travel if taking said device across the border. Keeping some printed/written notes with contacts that I can establish on the other side.
It's kind of weird in that I don't think the above is excessively paranoid given how intrusive state actors can be, not just the US.
I would say the court is generally less defendant-friendly and less government-friendly.
Maybe in the narrow case where government = armed law enforcement, more government- friendly.
IIRC pretty much 99% of state and fed courts had ruled against the warrant requirement for GPS tracking until it hit SCOTUS and they went the opposite direction (just): https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)
If the exact same case came before the Court today, would it rule differently? I doubt. One must assume Roberts, Thomas and Alito would rule the same way. Ideologically, Gorsuch, Kavanaugh and Barrett are all less conservative than Thomas and Alito, more conservative than Roberts – which suggests if Roberts, Thomas and Alito are all ruling the same way, probably Gorsuch, Kavanaugh and Barrett would too. And Jackson is both a liberal, and has been seen to be defendant-friendly even when the other liberals wouldn't be (see when she joined all but of the conservatives in the recent J6 case, while Barrett joined the remaining liberals). So probably, that case would go the same way today as it did in 2012.
Now, this is a separate issue, so the outcome of that 2012 case isn't decisive in how this case would be decided (if it ever reaches SCOTUS). But it would be wrong to assume that SCOTUS becoming significantly more conservative is necessarily going to change the outcome.
https://news.ycombinator.com/item?id=41084212
https://supreme.justia.com/cases/federal/us/573/373/
The opinion was written by Roberts with a concurrence by Alito.
Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
https://www.historyoasis.com/post/benjamin-franklin-the-woma...
https://web.viu.ca/davies/H320/Franklin.advice.mistress.htm
Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)
Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.
[1] https://en.wikipedia.org/wiki/Originalism
Originalism is funny, by the way. By its tenets, if you don't like what the Constitution says, you can pass an Amendment with the exact same words as the Constitution but those words would have new, different meaning.
Sure. As I said, "Scalia was textualist." All dachshunde are dogs. Not all dogs are dachshunde.
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
I was strip searched
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.
Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
They essentially told me they'd given up.
I also reported a nurse who acted without consent to the nursing board. The board covered for her. And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented.
The ACLU occasionally picks up cases but rarely and even rarer for an unsympathetic white guy.
It feels pretty hopeless honestly. They have QI,the courts, and every institution covers for them. At the border, CBP is god, even immune from 1A right to record them.
Step-daughter was involved in a car accident at a lighted intersection. No cameras, no witnesses, nothing, just her in her car, and the other driver in his.
Police officer: "Did you have a green light?"
Step-daughter: "Yes, I had a green light."
He goes over to the other driver, and is back within two minutes. "The other driver said he definitely had a green light, so I'm issuing you a citation for failure to obey a traffic signal."
So, there’s probably missing information here, but I also believe it at face value.
I think we all need to learn that there are different ways of interpreting things that influence people's opinions, and we should be open to the possibility that we might be "wrong" in someone else's context, myself included.
Why were they searching your car in the first place? Did you consent to it? Was there probable cause? Did you fight it in court?
I think we all have to do our part to expose any possible corruption if we ever want it to change... if that's even what happened. Just shrugging and saying "yea that happens" is not the answer IMO, and one could argue you're both wrong at that point.
"Good" cops that stand up for bad cops are also bad. And if there are enough bad apples it doesn't matter if there are good ones as you need to assume whoever you are interacting with is gong to fuck you over.
I have had overwhelmingly positive experiences with police in general and I know many others have as well, and of course I know some with bad experiences too, it's a spectrum of course.
Even if there wasn't, at that point they could have went to court, the media, anything, but they chose to never mention it and just shrug it off while complaining online, while people keep telling stories like this and it's no wonder people scream ACAB if they let it happen to them. Not only did they shrug off the police, but the hospital charging them, and then admitted they did nothing about it, and let it destroy their credit.
Sorry if I still don't believe it.
Indeed, this same federal court has already ruled against warrantless phone searches in US v Smith (SDNY 2023).
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
As it is I wouldn’t be surprised if the government doesn’t appeal to avoid setting a wider precedent.
https://www.aclu.org/know-your-rights/border-zone
Or does it apply to everybody?
And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
I occasionally read the AMA of the immigration lawyer here on HN just for curiosity. I have no intention whatsoever to work in the US, but my impression is that many aspects of visa system sound like treating foreigners as shit in real life. Weird rules, lack of resources, in practice if things go wrong for reasons unrelated to the person you'll lose your visa. Does not sound like full rights when on American soil.
Visas only control the permission to travel to the US and to apply for admission at a port of entry, and all visa applications and decisions happen while the people taking the action are outside the US. (Visas are only formally applied for at the visa interview, which is never conducted in the US, and visa denials are also issued by the relevant US embassy or consulate abroad and not by the Washington-based part of the State Department.)
The continued legality of anyone’s status within the US following a legal entry does not depend on their visa remaining valid or unexpired. Even if their visa is revoked while they are in the US, that itself only affects future entries, although other actions might of course be taken by the government in parallel.
Importantly, the right to be allowed to enter or remain in the US is one of the constitutional rights that only exists for citizens, no different from most countries. I did say that those few rights which are inherent to citizenship don’t apply to foreigners inside the US. Again, I know of no country in the world which gives foreigners a right to enter and remain, except for conditional rights for specific nationalities like with EU freedom of movement.
Here are two examples of how foreigners have more (and approximately full) rights while inside the US:
Foreigners in the US have far more due process rights if the federal government starts a factually or legally unjustified removal proceeding against them than if a visa officer abroad makes factual or legal errors when denying a visa. The former scenario can often be challenged in administrative, quasi-judicial, or actual judicial proceedings; the latter case has no remedy except to persuade the State Department to change its mind.
If the US government sniffs the communications of two foreigners located within the US, they need a warrant under the same conditions as they would if the foreigners were citizens, unlike the case of purely external communications where the US government is only so constrained if they know a citizen is involved.
And so on.
For travelling I am much more free to set my preferences. And the US has happened to end up on my personal shit list because of their border procedures. I know them since the 1980s and they have always been some kind of unpleasant, although nothing bad has ever happened to me. I have no criminal intent, you just need to learn to play the game to get through. But in the digital age I don't want to play their game anymore.
In general I am very skeptical about the concept of citizenship. It's an instrument of discrimination.
https://freedomhouse.org/countries/freedom-world/scores?sort...
You, too. This is not helping you get your point across, which I'm assuming was the reason you wrote your comment.
However, I would question whether denying historical facts is an opinion. There seem to be fewer cases of people demanding that the holocaust should be resumed. That I would call an opinion. I assume that it would lead to prison if repeated often enough, albeit based on a different law. Still, I am more willing to travel to such country than to a country requesting my passwords at the border. Call it illogical or not, it's my preference.
Historical facs have a tendency to change based on the current political climate. Which is to say, they are always more like opinions.
Although a better example would be insulting a police officer or politician, which can include as bening things as making fun of them on twitter. Granted, this is more a concern for citizens than it is for tourists so I agree with your assessment that the US border controls are a bigger threat to you as a traveller.
I've been asked for my phone at customs, and I just hand over the "nokia". They can play snake all the like.
Doesn't seem to protect you if the government doesn't like your political opinions.
That said, as far as I’m aware based on publicly available evidence (not simply speculation), in that situation the government was motivated more by the significant extended disruption from the protest than by the particular political views involved.
What are you referring to?
Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
These people didn't swear an oath to the constitution, the people who wrote the unconstitutional laws they are enforcing did.
You seem to be implying a different model under which unconstitutional legislative laws would remain in effect, but the people who passed them would be personally responsible for having gone against the constitution.
I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?
There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.
E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:
<https://www.npr.org/2023/12/22/1221230390/biden-pardons-clem...>
This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.
But your damage control is within reach.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
Passwords are personal data, faces and fingerprints are not, apparently.
The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.
You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
(One might argue that breaking your door without due process of law would be a Fifth Amendment violation. I have no idea what existing precedent says about that.)
Depending on your version and flavour of Android you may need to enable this "Show Lockdown Option" in your settings.
[1] Opening this varies - my pixel is power + vol up, some phones are hold power, etc.
What's the alternative? The guy paid $1000+ just to get there and spent 3+ hours at customs. Refusing is basically saying "ok I fly back home"
The US is known for giving a fuck about privacy and personal borders. That's literally the one thing they are known for
Why Android? Try GNU/Linux with SXMo instead: https://news.ycombinator.com/item?id=39155103
"Why do you use this OS"
"I like the OS"
"Why do you use this language"
"I like the language"
"Why did you buy GME shares"
"I like the stock"
https://cellebrite.com/en/advanced-services/
The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").
And with GrapheneOS you can relock the bootloader, once you've installed it.
Source:
https://news.ycombinator.com/item?id=41072905
https://discuss.grapheneos.org/d/14344-cellebrite-premium-ju...
Does a strip search also require a warrant though?
https://en.wikipedia.org/wiki/Border_search_exception#Search...
So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.
Source? If so, that's a privacy boon for CarPlay and Android Auto.
https://www.theregister.com/2023/11/09/car_text_harvesting/
Several of those can be limited to specific applications, e.g., by setting the $DISPLAY value (X11). For remote desktop that's a bit more challenging but can be managed to an extent using Group Policy settings under MS Windows:
<https://serverfault.com/a/354165>
Then why does iOS warn me that my car will receive data from my phone when enabling car play? Does this just mean the screen, or does it get the texts/calls too?
In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.
Edit: add source 1. https://www.cbp.gov/travel/international-visitors/visa-waive...
In what part of the article or thread to which you commented asserted a "necessary" anal cavity search?
<https://www.aclunc.org/our-work/know-your-rights/know-your-r...>
Just as example, I'm one of those weirdos with the vehicle tag "No Plate" — never received anything but laughs from police officers.
' OR 1=1; DROP TABLE licenses; --
The government has a 100% absolute right and responsibility to control what's coming across the border. That's been the common law since King Narmer.
In law school, it's common to skip these cases for time and have the professor summarize the caselaw as "you have no rights at border."