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Submitted via IRC for Runaway1956
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: 4, Insightful) by AthanasiusKircher on Monday May 14 2018, @01:28PM (4 children)
While this ruling is a step in the right direction, I don't think it's time to celebrate much of anything here. The Circuit Court didn't rule on what legal standard must apply, only that there must be some "suspicion."
Depending on future rulings and how SCOTUS sorts issues like this out, this could essentially be meaningless. Border searches that meet any "suspicion" standard generally fall under the reasonable suspicion [wikipedia.org] standard, which is a vague legal category that allows just about anything with only vague "suspicion." Classic example is this case [wikipedia.org], where "reasonable suspicion" allowed someone to be detained for 16 hours and undergo a rectal exam -- all without a warrant. What was the "reasonable suspicion"? It seems like it all began only with a bulge in her abdomen. She claimed she was pregnant, but that wasn't believed. That led to a more invasive strip search, where she was found to be wearing two sets of underwear. Which led to a full strip search... and things kept going.
Fourth amendment protection would require a warrant in such circumstances, which requires "probable cause," a much higher standard for suspicion. But the Fourth Amendment doesn't apply at international borders [wikipedia.org], and for those who would claim it's unconstitutional -- no, it's not. The first border search laws passed in 1789 allowed broad leeway for searches at borders, and law has pretty consistently upheld broad searches with minimal or no suspicion over the centuries. This was clearly an exemption that the Founders were in favor of.
Anyhow, point is -- if you actually care about privacy at borders, this is hardly a great victory. It's better than nothing, but a "reasonable suspicion" standard could be vague enough to encompass just about any minor observation a customs official has... and that could lead to a search. If you really want protection at borders, a warrant and "probable cause" standard would be legally necessary.
(Score: 3, Informative) by vux984 on Monday May 14 2018, @02:55PM (2 children)
" Classic example is this case [wikipedia.org], where "reasonable suspicion" allowed someone to be detained for 16 hours and undergo a rectal exam -- all without a warrant. What was the "reasonable suspicion"? It seems like it all began only with a bulge in her abdomen. She claimed she was pregnant, but that wasn't believed. That led to a more invasive strip search, where she was found to be wearing two sets of underwear. Which led to a full strip search... and things kept going."
In that case, she was smuggling cocaine though. Which is exactly what they suspected in the first place. I mean, I don't disagree that a warrant should have required, but I also suspect they could have gotten one if one had been required.
(Score: 2) by AthanasiusKircher on Monday May 14 2018, @03:42PM (1 child)
Just because someone is guilty doesn't mean rights disappear. And yes, THIS woman was guilty. The danger with such things without supervision by warrant is that it leads to border official behavior that will ensnare innocent people. That woman was guilty, but this woman [aclutx.org] wasn't, and yet was forced to undergo similar humiliating tests over many hours (actually more invasive). After years of court battles, she successfully used over it... But in any rational place that would never have occurred, or if it did, the lawsuit would have been determined immediately in her favor and everyone involved summarily fired.
The point is that even a "reasonable suspicion" standard allows broad discretion to border patrol officials... Leading them to think they have the right to take very invasive actions without oversight.
(Score: 0) by Anonymous Coward on Monday May 14 2018, @04:36PM
Due process is so 20th century. Get over it. Progress marches on. The authorities know best. If they didn't, they wouldn't be authorities.
(Score: 2) by edIII on Monday May 14 2018, @06:50PM
I'm not going to trust it. Even if there is legal precedence I can use to ultimately defend my Constitutional and Human rights, the damage can still be done by some authoritarian dickhead.
Any time I cross the border now, I do not do so with my own personal phone. Ever. My system itself will be defended by extremely strong encryption, and I will remove the high performance drives and replace them with stock. Then run a Live CD of Ubuntu or something while I'm travelling.
I'll ship my expensive storage to my destination if I think I need them, otherwise I'll just connect back up with my servers when reaching my destination and downloading whatever data I need.
They'll never have the chance to violate my privacy.
Technically, lunchtime is at any moment. It's just a wave function.