Bipartisan Bill Would Require A Warrant To Search Americans' Devices At The Border

from the would-be-a-start dept

As we’ve discussed for many years, Homeland Security and the Justice Department have convinced too many courts that there is some sort of 4th Amendment “exception” at the border, whereby Customs and Border Patrol agents (CBP) are somehow allowed to search through your laptops, phones, tablets and more just because, fuck it, they can. Now bipartisan pairs in both the Senate and the House have introduced a new bill that would require that CBP get a warrant to search the devices of Americans at the border. On the Senate side, the bill is sponsored by Senators Ron Wyden and Rand Paul, and in the House, it’s Reps. Blake Farenthold and Jared Polis. Honestly, it’s absolutely ridiculous that this kind of bill is even needed in the first place, because the 4th Amendment should just take care of it. But with DHS and the courts not properly appreciating the 4th Amendment’s requirment for a warrant to do a search, here we are. Here’s a short summary of the bill as well, that notes:

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the ?border search exception? to the Fourth Amendment?s requirement for probable cause or a warrant.

Until 2014, the government claimed it did not need a warrant to search a device if a person had been arrested. In a landmark unanimous decision, the Supreme Court (in Riley v. California) ruled that digital data is different and that law enforcement needed a warrant to search an electronic device when a person has been arrested.

This bill recognizes the principles from that decision extend to searches of digital devices at the border. In addition, this bill requires that U.S. persons are aware of their rights before they consent to giving up online account information (like social media account names or passwords) or before they consent to give law enforcement access to their devices.

That last part is especially important, given how eager Homeland Security has been to start demanding social media passwords as you deplane. Unfortunately, the bill as written only applies to “US Persons” as defined here, meaning that it may not be of much help for a new DHS proposal, also revealed this week, to more aggressively pursue phone and social media searches of foreigners. This is a bad idea for a whole host of reasons we’ve already discussed, but the short version is that it’s bad for security, it’s bad for tourism, it’s bad for Americans’ safety (because other countries will reciprocate). It’s just a bad, bad idea.

At the very least, this new bill would block this from happening for American citizens or otherwise legal aliens, but it should go much further. And, of course, who knows if this bill will get any traction, or get signed by the President.

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Comments on “Bipartisan Bill Would Require A Warrant To Search Americans' Devices At The Border”

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That One Guy (profile) says:

Must be from the Bill of Rights: Special Edition

The government has asserted broad authority to search or seize digital devices at the border without any level of suspicion due to legal precedent referred to as the “border search exception” to the Fourth Amendment’s requirement for probable cause or a warrant.

Strange, I don’t seem to recall that particular exception listed.

The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Hmm, nope, read and re-read, just can’t seem to find the ‘… unless the person happens to be within 100 miles of the border, in which case you can perform any search you want without limits’ exception talked about. It’s almost as though it was made up out of thin air to justify after the fact actions which would have otherwise been found to be in violation of the Fourth by judges too spineless to tell border agents "No, you do not get to search anything you want ‘just because you can’."

My_Name_Here says:

Re: Must be from the Bill of Rights: Special Edition

Here, let me get that for you:

Now, if you want to read the “lies” of this whole deal, you can go here:

The 100 mile zone is a lie often repeated, it seems. There is no “constitution free” zone, the same laws that apply to other law enforcement apply to the border agents working away from border inspection stations. The only real exception is that they can operate inspection stations are stop and question all traffic moving past that point (in a manner similar to a DUI checkpoint, also long proven constitutional!).

They cannot randomly inspect cell phones in the 100 mile zone. That would be a lie.

The law that they are trying to pass here likely won’t pass muster as it’s attempting to regulate what the courts have already ruled otherwise on: The border agents AT THE BORDER have broad search rights as a normal part of their job of inspecting people arriving into the US. There is a lot of unsettled ground as to the rights of US citizens (and legal aliens) when they present at the border but have not yet entered the US.

It’s not as simple as they are making it out to be.

That One Guy (profile) says:

Re: Re: Must be from the Bill of Rights: Special Edition

Yeah, pointing me to a page with dozens of links is rather less than helpful in making your point. Is there a particular part I’m supposed to be looking at?

They cannot randomly inspect cell phones in the 100 mile zone. That would be a lie.

After a little bit of digging into old articles, yes and no.

Anywhere within 100 miles of the border? Not so much.

At any of the checkpoints or stations they’ve set up, which can be many miles from the border? Yes.

As for the ‘They cannot randomly inspect cell phones’ bit? They seem to think otherwise, to the point where they argue that ‘…imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

When they’re arguing that the most basic requirement of the fourth, that of reasonable suspicion being needed for a search is actually an un-reasonable and outright harmful requirement for them to have to put up with that seems to be a pretty clear case of saying that they don’t have to follow the fourth(a view that an unfortunate number of spineless judges seem to accept).

btr1701 (profile) says:

Re: Re: Must be from the Bill of Rights: Special Edition

The law that they are trying to pass here likely won’t
> pass muster as it’s attempting to regulate what the
> courts have already ruled otherwise on

The fact that a court has ruled on an issue is not a bar to legislative action on that same issue.

For example, the Supreme Court ruled in Kelo vs New London that the taking of private property by the government and giving it to other private individuals does not violate the 5th Amendment’s “public purpose” clause. However, that didn’t stop many state legislatures from legitimately passing their own laws forbidding that practice.

The Wanderer (profile) says:

Re: Must be from the Bill of Rights: Special Edition

The key word which lets them do this is here:

The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nothing in that says that a warrant, or probable cause, is required for a search to be reasonable.

The arguments here which seem intuitively obvious to me are something like:

  • It is clearly reasonable to search luggage, etc., of people who are attempting to cross the border at a checkpoint.
  • Because such a search is reasonable, it does not require a warrant.
  • It is also clearly reasonable to search in areas within a short travel time of the border, to locate people or items which may have come across the border without passing through a checkpoint.
  • In the modern day, with modern vehicle technology, it is possible travel a hundred miles in two hours or less, without great difficulty.
  • Two hours is a short travel time, as cross-border journeys go.
  • Therefore a search within a hundred miles of the border is reasonable, and as such, does not require a warrant.

The resulting situation seems to me to be in clear conflict with the intent of the amendment, but it does seem compatible with the text, and the courts would seem to either disagree about that conflict or to hold the intent as less important than the text.

Chris-Mouse (profile) says:

Re: Re: Re:

You know. I’ve read through the US constitution several times, and nowhere in there do I ever see a distinction made between US citizens and non-US citizens. Instead, the constitution refers to “people” or “persons”
I guess that means the United states government considers everyone not a citizen to also not be a person.

Anonymous Coward says:

Re: Re: Re: Re:

“nowhere in there do I ever see a distinction made between US citizens and non-US citizens.”

Read it a few more times. It is very much there, like in your face there, heck you don’t even have to read very far into it to find it either. Just because someone failed to teach you reading comprehension does not mean you get to be correct in ignorance.

I guess that is why they say ignorance is bliss. You get to believe whatever amount of stupid you like and you get to ignore facts that challenge your ideas along the way!

Anonymous Coward says:

Re: Re: Re: Re:

I guess that means the United states government considers everyone not a citizen to also not be a person.

Yep. The whole "the Constitution only applies to US citizens or stuff we do IN America" argument always fell a bit flat for me. Either you believe this stuff or you don’t.
I was always under the impression the Constitution was basically supposed to be a codification of the whole "We hold these truths to be self evident.." thing. I don’t recall the bit there that said, "Except for those Johnny Foreigners – that lot of non-people can take a running jump", either.

Though if you’re being picky there is always the whole "3/5 of a person" bit…

Anonymous Coward says:

Re: Re: Re:2 Re:

—I don’t recall the bit there that said, “Except for those Johnny Foreigners…—

hey… another person that does not like to read! it’s in there, you and the AC you are responding too should join forces and split the cost of a tutor so you can become more educated. Or you can go back and read it again until you figure it out.

But you are partially correct about one thing… The Constitution is not location specific. Americans have full rights when dealing with the US government even if they are on Pluto.

Anonymous Coward says:

Re: Re: Re:4 Re:

Nah, it would be better for you to keep reading the U.S. Constitution until you see it. It works out better for everyone else because you seriously need the education.

Anyways, I already posted a response to another person over this so go and read it. The Constitution only applies to citizens because the constitution says it itself. It is also implied by natural logic as well.

I do not specifically mind if police decide to treat non-citizens the same way they treat citizens per se, but saying that the Constitution protects non-citizens is the same as admitting gross ignorance of the entire subject at hand. You can’t just say “unconstitutional” for every law enforcement activity you do not like.

Roger Strong (profile) says:

Re: Re: Re:

Even when in the US illegally, non-citizens have constitutional rights.

Politifact: Do undocumented immigrants have constitutional rights?

They get the protections of the Constitution vs. deprivation of life, liberty or property without due process of law. They have freedom of speech and religion, and if arrested, a right to a Miranda warning.

The big exception – other than not being allowed to vote in state and national elections – is that they get almost no due process in removal proceedings.

Anonymous Coward says:

Re: Re: Re: Re:

You are wrong, but hey, don’t let that stop you.

Non-Citizens have no rights, but the ones we grant them. If we do want to grant them those rights by creating new laws then fine, but do not make the mistake of saying they are there by virtue of the Constitution.

This is why America is failing there are droves of idiots that “THINK” they know when they don’t. Classic Dunning-Kruger effect right here.

The Dunning–Kruger effect is a cognitive bias in which low-ability individuals suffer from illusory superiority, mistakenly assessing their ability as much higher than it really is. Psychologists David Dunning and Justin Kruger attributed this bias to a metacognitive incapacity, on the part of those with low ability, to recognize their ineptitude and evaluate their competence accurately. Their research also suggests corollaries: high-ability individuals may underestimate their relative competence and may erroneously assume that tasks which are easy for them are also easy for others.

Roger Strong (profile) says:

Re: Re: Re:2 Re:

Gosh, this leaves me in a difficult position.

I have to choose between Politifact’s article, for which they interviewed several legal scholars. And cite the author of immigration books about constitutional protections for undocumented immigrants. And quote a law professor at University of California-Davis. And cite several court decisions outlining the rights of undocumented immigrants. And more.

Or, believe an Anonymous Coward babbling the sort of pretentious nonsense expected from those who wander out of Breitbart of InfoWars when their views don’t align with the facts.

What to do, what to do…

Anonymous Coward says:

Re: Re: Re:3 Re:

“for which they interviewed several legal scholars”

Yea, I know right? There is no chance an entire group of people could be wrong at the same time and the fact that they are also magical word time “professionals”… there is just no way they would just pick the professionals they do like and ignore the ones they don’t! That is just impossible.

But hey check this out. It’s the preamble to the U.S. Constitution. Let us have a look at what it says shall we?

—We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.—

Oh snap! whats this part again? —and secure the Blessings of Liberty to ourselves and our Posterity,— How in the FUCK did that get in there? They must be using disappearing and reappearing ink that disappears and reappears depending on the bias/intelligence of the person reading it.

Wait… tell me again how all of those professionals got it wrong? They would not be the same professionals that called it global cooling before they called it global warming and just settled for climate change right? Or are they the clowns that said eggs were bad for you right before they said they were good for you? I mean fuck me, professionals are NEVER WRONG, bought off, or willing to spew alternate facts because…. just because right?

It’s right fucking there in the U.S. MUTHA FUCKIN Constitution ITSELF… Please… avoid trotting out a bunch of corrupt politically biased and willfully ignorant professionals next time. I really do not need a group of people that is more interested in sucking their parties dick telling what I can clearly read for myself!

Roger Strong (profile) says:

Re: Re: Re:4 Re:

The United States is built on immigration. This was especially true when the U.S. Constitution was written. Many of those who wrote it were immigrants if not children of immigrants.

There is no sign, let alone any reason to believe, that they wanted to deny anyone the Constitution’s protections until they gained citizenship.

Those professors, legal scholars and courts I “trotted out” are experts on the Constitution and US law. You on the other hand get a 5% member discount on Breitbart merchandise. I’m still having a hard time deciding which is more convincing…

Anonymous Coward says:

Re: Re: Re:5 Re:

Just keep clinging to those alternate facts, when others come along and tell you that words don’t mean what they mean when you need them to mean something else, you need to shut your pie hole.

There is every indication of what I say in both the Constitution, the Founders writings, History itself, and the natural consequences of nationality itself.

Sure you can remain willfully ignorant, but as long as you allow your politics to corrupt what things mean, then you have no standing to challenge others when they do it to you. Word have meanings and purpose, use them appropriately or you get what we have here in the USA right now. An entire country threatening to shed blood all over itself.

Now you tell me… are you willing to commit to that? To willfully ignore the facts and meanings of words right in front of your face to cause others to hate you and potentially plunge he nation into despotism? If you can do it, so can the president!

You might as well just say “Hail Trump!”, roll over and go back to sleep! Because if you okay with your side intentionally abusing words to justify their political ideologies then you directly justify the same for your foes!

Roger Strong (profile) says:

Re: Re: Re:6 Re:

Non-citizens – and that would include both immigrants and tourists – have rights protected under the Constitution. That is a simple fact backed by the courts, legal scholars and law professors. Citations provided above.

Your claim is your opinion alone. Your interpretation of the Constitution is yours alone.

Anonymous Coward says:

Re: Re: Re:7 Re:

Then you must agree with the Dred Scott decision as well huh?

I sadly must say that the efforts to trick people like you into thinking that the Constitution is something that is is not has been entirely too successful. You treat things that are not even mentioned in the Constitution as though they are, and treat things that ARE mentioned in the constitution as though they are not.

Your intellectual dishonesty is staggering.

Anonymous Coward says:

Re: Re: Re:7 Re:

You mean people like you have already wrecked America?

I know I am in the minority, of that I have no doubt. But even though it is difficult to educate you and those like you, it must still be attempted. Perhaps one day I will find someone who does understand and has been intelligent enough to avoid drinking the cool aid.

AnonCow says:

Good and racist

Why would we grant these protections to only US citizens and legal aliens?

While it may be wonderful to clarify and strengthen the 4th Amendment, at the same time, it is clearly racist and xenophobic.

I assume that the part about protecting our rights was written by the Democrat sponsors and the racist, xenophobic part was written by the Republican sponsors?

Anonymous Coward says:

Re: Good and racist

Uh, what? You know that many US persons aren’t white, and some of them weren’t even born or raised in the US, right?

Have you considered that maybe it was done this way on the basis that it would be much much easier to get through Congress as-is than if it contained language that opponents could assert would "protect suspected terrorists" from being searched? Once an allegation like that is thrown down, and I am almost certain the pro-surveillance legislators would do so, the bill is on the defensive for the rest of its life. By restricting the bill to people who have a long list of precedents protecting their rights in other contexts, it’s easier to get this through. If it goes through, maybe we can get an amendment later to expand it to cover others. If it dies here, then nobody benefits. If it lives, CBP is slightly more constrained than before. Nothing in the reported text says it’s easier for CBP to screw over foreigners with the bill than without it.

Uriel-238 (profile) says:

Re: Re: "Citizenship is not a Race"

Sometimes it is.

We don’t mandate proof of citizenship here in the US. Oh, we’ve batted about the notion of national IDs and the necessity for US adults to carry them and present them to authorities, but that’s to federalist even for Republicans, so such programs don’t get off the ground.

And yet…only those who pass as white get this advantage. Plenty of Latins (for example) who are legally here, whether by visa, green-card or are in fact US citizens, are often harassed, detained, incarcerated or even deported (to where?) on the basis that they’re non-whites without valid ID, hence can’t prove they legitimately belong in the United States.

The same goes for most other non-white races. The same harassment policy applies to black Americans as well, but we don’t deport them. Instead we just throw them into prison.

Anonymous Coward says:

Wrong Way!

There should not be a new law.

People should be getting fucking prosecuted and congress can sure as fuck do something about it by calling these agencies in and making a big deal about it, and then recommending prosecutions.

But no… we don’t want to do any actual work. Not even people IN government understand how government should work.

And as usual, we “informed” citizens just go right along with it, thinking… yea! that will teach them!

—Unfortunately, the bill as written only applies to “US Persons”—

The Constitution only applies to Citizens anyways! It does not serve our sovereignty very well if non-citizens are able to invoke protections we reserve only for ourselves. So thumbs up on the intellectual bankruptcy! While I can agree that the US should not be acting like a paranoid country, we should never entertain the idea of granting constitutional protections to anyone outside of our countrymen!

“If tyranny ever comes to this land it will be under the guise of fighting a foreign enemy.”

~James Madison

Extending the constitution to cover non-citizens means that the US will have to start cutting big exceptions into the constitution to deal with enemy combatants and creating oppressive laws that can then be used on actual citizens that are called terrorists for bitching about the quality of the water supply.

Governments using fear to convince people to liver under tyrannical laws is old hat and here we are again… repeating fucking history!

TheResidentSkeptic says:

I am so confused.

So we are having to pass a law – not for citizens to follow – but for our own government agencies to follow which basically requires them to follow the law of the land and adhere to the constitution which they had to swear to uphold when they were hired into their government positions?

So this new law says you have to follow the old law?

And who/how/when will this new law be enforced? If you fail to follow this law, haven’t you already violated the first one?

Why can’t we just sue all the CBP agents under CFAA? They have certainly been accessing computers and other electronics without proper authorization..

Ninja (profile) says:

Re: I am so confused.

Reminding everybody that what the law doesn’t forbid the citizens can do but the Government must have explicit permission by law or the Constitution to do something.

Of course you can always be Salvador Dali and treat rocks as molten clocks and everything is allowed as long as there are molten clocks and saxophone-headed elephants in the law.

The Wanderer (profile) says:

Re: I am so confused.

Such a new law says that the courts’ interpretation of a place where the old law was not explicit is incorrect.

In theory, this will be enough to get the courts (judicial branch) to rule differently; also in theory, that will be enough to restrain the border agents (executive branch) from taking these actions.

Theory and practice may differ.

Roger Strong (profile) says:

What Happens Next...

The US already has agreements with Canada and other countries whereby any time an American flashes his passport to cross into a *third* country, the US is notified. It already shares legal and some medical history, so that a citizen can be stopped at the border if they’ve ever been busted for pot possession or threatened suicide.

Americans must have a passport to cross into Canada, not because Canada requires it, but because America requires it for them to return.

If this law passes you can expect similar agreements for devices. The other countries will be required to search devices – outside US territory and the US Constitution’s reach – and report the data back to the US.

JoeCool (profile) says:

Re: What Happens Next...

I’m glad I don’t travel anymore. We I was a kid, we made a number of trips into Canada (tracing my mom’s family tree) and not once did you need ANYTHING to cross the border. They would stop you to briefly ask if you were crossing for business or not, then wave you on. They never once asked my dad for even an ID card… either direction! Now you need three forms of PHOTO ID, a passport, your birth certificate, a urine sample, and pass three different polygraphs.

Wyrm (profile) says:

Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Although not a direct legally binding document, it states explicit that “all humans” are equal in rights.
If you start carving exceptions for your own citizens, you might as well admit that you don’t consider foreigners as human.

Uriel-238 (profile) says:

Re: Police have rights in America.

There are plenty of academic discussions of the Bill of Rights and its intent mandating application to all persons foreign and domestic.

But as application goes, rights quickly dissolve once agents or officials (typically prosecutors and law enforcement) decide you’re a threat to their interests, e.g. you have something they want or allegedly have done something they resent.

This is how we can have detection dogs with high rates of false positives count as probable cause, or civil forfeiture in the face constitutional protections against unreasonable seizure. This is how the right to not self-incriminate is discarded when a judge wants encrypted data to be unlocked. It’s how we sustain a 90% conviction rate, and a higher incarceration rate than any other nation in the world.

So really, tourists have the same rights the rest of us do, specifically none at all except the ones that the Department of Justice deign to allow us at a given moment.

Eldakka (profile) says:

This bill is on the wrong track

what they should be proposing is a bill that states something along the lines of:

1) The US constitution, including, but not limited to, all clauses, articles and amendments, apply in full force to:
i) Any place that is part of US Territory;
ii) Any place that is administered as part of US Territory;
iii) Any place that is under the control of US civil or military personnel
iv) Any place US civil or Military personnel claim or exercise jurisdiction, or appear to claim or exercise jurisdiction, in full or in part.
v) Any personnel acting in the capacity of or under the authority of US civil or military authority or direction.

2) There is no border exception to the constitution.

3) there is no place that US civil or military personnel can exercise authority or jurisdiction in any civil or military matter that is not subject to the full constitution, including, but not limited to, all clauses, articles and amendments.

4) SCOTUS has full legal jurisdiction in any and all cases covered in this act, whether preceding, including or following this clause, and can make binding rulings on any such situation that apply to all US citizens, including, but not limited to, the US congress, executive, military and POTUS and to all locations covered in clause 1.

5) SCOTUS is the sole arbitor of whether any clauses in this act, whether preceding, including or following this clause, apply.

6) POTUS must not:
i) make any Executive Order; or
ii) issue an order as the Supreme Commander of US military forces; or
iii)make any other direction;
that is not compliant with any clause in this act, whether preceding, including or following this clause.

6) The Congress of the US can make no law abridging any clause in this act, whether preceding, including or following this clause.

Even better, Something like the above should be added as an amendment to the constitution.

The Wanderer (profile) says:

Re: This bill is on the wrong track

The trouble with this is that the existing practices have been established under court rulings made in light of the Constitution and laws as they stand.

In other words, the courts involved have concluded that the Constitution does not prohibit the activities being undertaken which this bill would seek to prohibit.

You would need to somehow clarify to the courts that the language in the Constitution which they have thought does not prohibit this does, in the mind of Congress, prohibit this.

6) The Congress of the US can make no law abridging any clause in this act, whether preceding, including or following this clause.

That would be useless. Legislation passed by the current Congress cannot limit what legislation can be passed by future Congresses; only Constitutional amendment can do that, and even such amendments cannot limit future amendments. (ISTR that this has been held in court, quite possibly by the Supreme Court.)

Uriel-238 (profile) says:

A better law...

…would exact specific penalties to agents who violate the constitutional rights of persons of the public with whom they interact, from increasing fines to (say) mandated prison time after many repeated violations.

The problem with our system as it stands is that there is no impetus to follow any law, all the way up to the Constitution of the United States. Law enforcement, including ICE and CBP officers, are above the law, and can (and often do) get away with murder frequently.

It’s not going to happen in the current administration (regime?) but nothing less than a system with near-certain detection and enforced penalties is going to make any change.

Our police forces love to bust heads, and only now in the age of ubiquitous cameras are we seeing this.

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