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In a victory for privacy rights at the border, the U.S. Court of Appeals for the Fourth Circuit today ruled that forensic searches of electronic devices carried out by border agents without any suspicion that the traveler has committed a crime violate the U.S. Constitution.
The ruling in U.S. v. Kolsuz is the first federal appellate case after the Supreme Court's seminal decision in Riley v. California (2014) to hold that certain border device searches require individualized suspicion that the traveler is involved in criminal wrongdoing. Two other federal appellate opinions this year—from the Fifth Circuit and Eleventh Circuit—included strong analyses by judges who similarly questioned suspicionless border device searches.
(Score: 5, Interesting) by Runaway1956 on Monday May 14 2018, @11:03AM (10 children)
Customs and game wardens both need to be brought to heel. Both have powers above and beyond what most law enforcement departments have. This isn't nearly enough to get them under control, but it's at least a small beginning. Essentially, none of your rights are applicable at the border. No warrant, no reasonably suspicion, nothing. If a dickhead customs officer wants to dismantle your vehicle, no one will stop him. He wants to confiscate just about anything, no one will tell him differently. At least one circuit has told them that enough is enough. Screw customs. I really want to see them put under the same restrictions that all other law enforcement is under. Let them do some actual police work to get their busts.
Now we need the other circuits to fall into line, and start bringing all the OTHER enforcement agencies out of the dark ages. No, you can't search my cell phone without a warrant. No, you can't search my car. No, you can't shoot a suspect unless you are very sure that he has a weapon - just because his hands are near his waist doesn't justify murdering him. No, no, no, you don't have my permission for anything, and I'm not waiving any rights!
(Score: 4, Interesting) by takyon on Monday May 14 2018, @11:33AM (9 children)
Law enforcement agents are masters at becoming suspicious. "I smell marijuana!" "You seem nervous!" It helps that they can already stop whoever they want at the border or virtual border equivalent.
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(Score: 5, Insightful) by terrab0t on Monday May 14 2018, @11:40AM (1 child)
I’m thinking the same thing.
I’m not sure if it will make much difference in practice. They are used to
doing whatever they want to travellers. The police can always invent probably
cause and suffer little to no consequences for it later. Border security can do
the same. They may continue being jerks to foreign travellers. What they do at
the border has little to do with security. They are exercising power and
dominance. They have a strong, primitive drive do so. I’m sure Robin Hanson
would see right through their behaviour.
Unless I see clear evidence that US border security has stopped their usual
practice I will maintain my policy of carrying absolutely no personal
information on my person and no means that someone else could use to access it.
Want to travel with a laptop?
It has to have nothing but the base OS with not so much as a browser history entry
when you cross through customs.
Want to travel with a phone?
It has to have its data wiped and no SIM card in it when you cross the
border. Print out your boarding pass. Navigate to the airport and back without
a working phone (some people still do this routinely). Buy a temp SIM card at
your destination (you’d need to anyway). Throw out the temp SIM card and
wipe the phone’s data before you enter the airport to go home (newer phones
can self‐reset and wipe all of their data).
(Score: 0) by Anonymous Coward on Monday May 14 2018, @10:22PM
Here's the problem with that argument: Most people don't cross the border with a blank empty phone, and empty laptop, and especially one with no SIM in it.
That you don't have anything on your phone or laptop whatsoever will be more suspicious to them than if you did. A missing SIM especially is likely to get you lots of special attention. They might not do anything to you, but they can detain you for secondary screening and questioning and you will go into a database as someone to be watched, and not just when you're at the border.
Far better to have a temp SIM in it and a few meaningless contacts and a couple of games. You also will have the SAME SIM in it as you come back across the border as well. For bonus points, go ahead and use that phone at least once or twice / have it connected to their networks. Swap SIMs for anything you deem truly important, although then you run the risk of associating your IMEI with multiple SIMs - again a red flag if anyone is watching for that unless you must change SIMs with that phone. Then throw the phone away if you're not a frequent international traveler. Better to carry a dummy burner phone than to attract attention with "No I don't have no SIM because I'll buy one when I get there."
(Score: 4, Insightful) by DannyB on Monday May 14 2018, @04:17PM (6 children)
Try this one: "You seem to be calm and not nervous."
That makes me suspicious.
We have an alert to be on the lookout for people not wearing purple and green stripes on days ending in "y".
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(Score: 2) by takyon on Monday May 14 2018, @04:29PM
Then you're letting too many drug users go! [youtube.com]
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(Score: 2) by pdfernhout on Monday May 14 2018, @06:13PM (3 children)
The book "Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts", which focuses on cognitive dissonance theory, has a chapter on how the most common official police training for interrogation encourages exactly such double-think -- officers are trained essentially that any reaction or none at all is taken as evidence: https://en.wikipedia.org/wiki/Mistakes_Were_Made_(But_Not_by_Me) [wikipedia.org] And the book argues that over time, many police officers become so convinced that "bad guys" are let go that planting evidence becomes commonplace. Essentially, if someone arrested, there is too much cognitive dissonance for police offices to think they are not guilty of something because otherwise that would imply the arrest was in error. And by the time someone has been in jail for a bit after a conviction, then even if contradictory evidence shows up later, it is human nature to want to avoid the thought that an innocent was jailed, so new evidence of non-guilt tends to be ignored by prosecutors and many others in the legal system.
The biggest challenge of the 21st century: the irony of technologies of abundance used by scarcity-minded people.
(Score: 3, Interesting) by DannyB on Monday May 14 2018, @06:20PM (1 child)
If there MUST be a choice, because police work is imperfect, then I would prefer that we let too many bad guys get away than let innocent people be prosecuted.
The whole purpose of rights is to protect people from government overreach.
Police work is hard.
(Except in a police state where police work is easy. Beat 'em to a bloody pulp. Declare they are guilty. Lookup some offense to charge them with, although an offense on the law books is not always a strict requirement. Of course, our country would never become like that.)
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(Score: 5, Interesting) by pdfernhout on Monday May 14 2018, @06:37PM
For another aspect of this, see: https://www.vice.com/en_us/article/mvkgnp/law-professor-police-interrogation-law-constitution-survival [vice.com]
"In 2008, Duane, a professor at Virginia's Regent Law School, gave a lecture about the risks of talking to police that was filmed and posted to YouTube. It's since been viewed millions of times, enjoying a new viral boost after the Netflix documentary Making a Murderer spurred interest in false confessions. His argument, which he's since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven't committed a crime, it's dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy "expert" testimony, and sheer bad luck, lead to you being convicted of a serious crime. Duane's book details several outrageous incidents just like that around the country, clearly showing the many ways the system is stacked against suspects. These include a proliferation of poorly written laws that make nearly anything a potential crime, rules that allow prosecutors to cherry-pick only the most damning parts of police interrogations at trials, and a little-known 2013 Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you. For that reason, Duane thinks that you shouldn't even tell the police that you are refusing to talk. Your safest course, he says, is to ask in no uncertain terms for a lawyer, and keep on asking until the police stop talking to you."
He also gives an example where a boy was interrogated for hours, and all the time his parents were outside the room with a lawyer -- but because the boy did not say those four words, the interrogation went on and on. Sometimes suspects are emotionally beaten down after many hours and then confess to a crime they did not commit just to get the police to stop the interrogation. Imagine having that happen when all the time there is a lawyer right outside the door and you could stop the interrogation of the moment with those four words "I want a lawyer" -- but you don't know to say them. And they can't be said in a wishy-wash "maybe I want to talk to a lawyer" or "my dad says I should ask for a lawyer" or such. Obviously, the investigation will likely still proceed afterwards, but at a different pace and in a different way.
The biggest challenge of the 21st century: the irony of technologies of abundance used by scarcity-minded people.
(Score: 4, Informative) by NewNic on Monday May 14 2018, @06:36PM
Before you attempt to justify the way police interrogations are done as unconscious confirmation bias, consider this: why are so few interrogations in the USA recorded?
The lack of recording shows an awareness by police that their interrogations are not focused on finding facts and instead, are mostly on finding a way to make the person under interrogation implicate themselves.
The interrogation method taught to police in the USA is known to have a very high false confession rate. Other countries use different techniques which are aimed more at fact finding rather than confirming a pre-conceived notion of guilt.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory
(Score: 3, Funny) by edIII on Monday May 14 2018, @06:45PM
My favorite, was the state trooper that calmly asked me if I had any alcohol in the car, or dead bodies and tanks in my trunk. I was nervous in the beginning, but then I looked at him and asked how many bodies in the trunk is illegal?
He laughed, and said based on my reaction that I was probably okay, and that was his little psychological trick to pull on people. Guilty people he said most often don't hear the dead bodies or hand grenades. At which point I laughed again.
Not sure if I agree with his psychological assessment, but thank God he didn't ask about any weed or cookies :)
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