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posted by Fnord666 on Monday May 14 2018, @10:09AM   Printer-friendly
from the sudden-outbreak-of-common-sense dept.

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.

Source: https://www.eff.org/deeplinks/2018/05/fourth-circuit-rules-suspicionless-forensic-searches-electronic-devices-border-are


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  • (Score: 5, Interesting) by Runaway1956 on Monday May 14 2018, @11:03AM (10 children)

    by Runaway1956 (2926) Subscriber Badge on Monday May 14 2018, @11:03AM (#679520) Journal

    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)

      by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Monday May 14 2018, @11:33AM (#679524) Journal

      While we're heartened that the Fourth Circuit left open the possibility that manual searches may also require individualized suspicion, we disagree with the court’s unsupported statement that “the distinction between manual and forensic searches is a perfectly manageable one,” given that manual searches of electronic devices enable government agents to access virtually the same personal information as forensic searches.

      [...] Importantly, the Fourth Circuit also left open the possibility that forensic border device searches may require the highest standard of individualized suspicion under the Fourth Amendment: “What precisely that standard should be—whether reasonable suspicion is enough… or whether there must be a warrant based on probable cause… is a question we need not resolve.”

      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.

      --
      [SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
      • (Score: 5, Insightful) by terrab0t on Monday May 14 2018, @11:40AM (1 child)

        by terrab0t (4674) on Monday May 14 2018, @11:40AM (#679526)

        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

          by Anonymous Coward on Monday May 14 2018, @10:22PM (#679797)

          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)

        by DannyB (5839) Subscriber Badge on Monday May 14 2018, @04:17PM (#679617) Journal

        "I smell marijuana!" "You seem nervous!"

        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".

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
        • (Score: 2) by takyon on Monday May 14 2018, @04:29PM

          by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Monday May 14 2018, @04:29PM (#679623) Journal

          We have an alert to be on the lookout for people not wearing purple and green stripes on days ending in "y".

          Then you're letting too many drug users go! [youtube.com]

          --
          [SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
        • (Score: 2) by pdfernhout on Monday May 14 2018, @06:13PM (3 children)

          by pdfernhout (5984) on Monday May 14 2018, @06:13PM (#679688) Homepage

          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)

            by DannyB (5839) Subscriber Badge on Monday May 14 2018, @06:20PM (#679695) Journal

            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.)

            --
            People today are educated enough to repeat what they are taught but not to question what they are taught.
            • (Score: 5, Interesting) by pdfernhout on Monday May 14 2018, @06:37PM

              by pdfernhout (5984) on Monday May 14 2018, @06:37PM (#679710) Homepage

              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

            by NewNic (6420) on Monday May 14 2018, @06:36PM (#679708) Journal

            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

          by edIII (791) on Monday May 14 2018, @06:45PM (#679715)

          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 :)

          --
          Technically, lunchtime is at any moment. It's just a wave function.
  • (Score: 4, Insightful) by AthanasiusKircher on Monday May 14 2018, @01:28PM (4 children)

    by AthanasiusKircher (5291) on Monday May 14 2018, @01:28PM (#679555) Journal

    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)

      by vux984 (5045) on Monday May 14 2018, @02:55PM (#679584)

      " 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)

        by AthanasiusKircher (5291) on Monday May 14 2018, @03:42PM (#679599) Journal

        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

          by Anonymous Coward on Monday May 14 2018, @04:36PM (#679626)

          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

      by edIII (791) on Monday May 14 2018, @06:50PM (#679716)

      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.
  • (Score: 1, Informative) by Anonymous Coward on Monday May 14 2018, @03:59PM (3 children)

    by Anonymous Coward on Monday May 14 2018, @03:59PM (#679608)

    Still missing a step

    Suspicion => Warrant =0> Search

    Since the searches are/should be unconstitutional without a warrant and a warrant shouldn't be granted without suspicion, this is true, but the real ruling should have addressed the root cause. We should be secure in our papers and effects at borders, within 100 mi of borders and everywhere else under US jurisdiction.

    • (Score: 2) by bob_super on Monday May 14 2018, @05:20PM (1 child)

      by bob_super (1357) on Monday May 14 2018, @05:20PM (#679648)

      That pushes us to the next problem: warrants are way too easy to get, because there are no consequences for carefully-worded abuses.

      • (Score: 0) by Anonymous Coward on Tuesday May 15 2018, @05:26PM

        by Anonymous Coward on Tuesday May 15 2018, @05:26PM (#680099)

        Yes every system can be abused, but I'll gladly take the warrant route over nothing. As long as they require a judge to be inconvenienced that is, if they automate warrants where officers can just check the boxes and get authorization then fuck that.

    • (Score: 2) by crafoo on Monday May 14 2018, @10:48PM

      by crafoo (6639) on Monday May 14 2018, @10:48PM (#679806)

      I agree with your root cause in principle.

      I think, practically speaking, the root cause is incentives. There is no incentive to treat people as innocent until proven guilty. There is no incentive to act courteous and decent to citizens. Their is no incentive to not fully prosecute and imprison innocent people (even if you know they are innocent!)

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