Bill Introduced To Create A Warrant Requirement For Border Device Searches
from the 4th-amendment-matters dept
With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn’t apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.
So far, courts have been hesitant to push back against the government’s assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.
So, it’s good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:
Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., on Wednesday introduced legislation that would increase digital privacy protections for U.S. residents crossing the border and limit the situations in which agents could legally seize their devices. If enacted, the Protecting Data at the Border Act would curb law enforcement’s extensive authority over electronic information at the border.
Rep. Ted Lieu, D-Calif., introduced a companion bill in the House.
The bill [PDF] would institute a warrant requirement for border device searches, which is a really weird sentence to type considering the Supreme Court of the United States of America instituted a warrant requirement for device searches five years ago. But there it is: an attempt to codify a SCOTUS decision so it’s respected by US government agencies.
It also prevents border agents from denying entry to anyone refusing to disclose passwords or unlock devices during screening. It also blocks them from detaining anyone for more than four hours in hopes of turning denials into consensual searches.
Unfortunately, there are some loopholes. And one of those is sizable. “Emergency situations” allow border agents to bypass the Constitutional niceties. One of those is an old — and super-vague — favorite:
[c]onspiratorial activities threatening the national security interest of the United States
That’s the catch-22. The law can’t pass without this exception and it’s this exception that will be abused the most. But the institution of a warrant requirement will force the government to put a little more effort into its “national security” hand-waving if it hopes to use evidence pulled from devices in court.
Also important is the institution of documentation procedures for consent searches. It won’t be enough for officers to claim detainees volunteered passwords or otherwise agreed to have their devices searched. They’ll need to have the whole thing documented and the form signed by the detainee. Every device search must be documented as well, whether or not a forensic search was performed.
It’s a good bill, national security exception notwithstanding. But it’s being lobbed into an unwelcoming political arena. President Trump is still demanding a wall and has declared a national emergency simply because he wants to discourage immigrants from coming to this country. Border security is national security, according to this administration, even when there’s little evidence showing immigrants are more likely to commit acts of terrorism, never mind regular crime. This administration and those backing it (and they are many) are more than happy to suspend the Bill of Rights at the border for as long as they’re in power. That’s the reality of the situation.
While this bill would bring border agencies into alignment with Supreme Court precedent, it’s highly unlikely this won’t be rejected by the President if it even manages to make it that far.
Filed Under: 4th amendment, border, border search, cbp, device searches, warrants
Comments on “Bill Introduced To Create A Warrant Requirement For Border Device Searches”
I suppose if they tried to create some definitions that described the types of ‘activities’ that constituted this clause it would sink the bill. On the other hand without any definition they could rely on the old and very tired ‘I relied on my training and experience, I know conspiracy when I see it’ strawman.
The very least they could do is require specificity when documenting what those specific activities were and how they not only were a part of a conspiracy, but actually threatened the national security.
Oh, and no mention of the 100 mile wide border? Or is this a one step at a time type of thing?
(b) EMERGENCY EXCEPTIONS.— (1) EMERGENCY SITUATIONS GENERALLY.—
(A) IN GENERAL.—An investigative or law enforcement officer of a Governmental entity who is designated by the Secretary of Home-land Security for purposes of this paragraph may access the digital contents of electronic equipment belonging to or in possession of a United States person at the border without a warrant described in subsection
(a)(1) if the investigative or law enforcement officer—
(i) reasonably determines that—
(I) an emergency situation exists that involves—
(aa) immediate danger of death or serious physical injury to any person;
(bb) conspiratorial activities threatening the national security interest of the United States; or
(cc) conspiratorial activities characteristic of organized crime;
(II) the emergency situation described in subclause (I) requires access to the digital contents of the electronic equipment before a warrant described in subsection (a)(1) authorizing such access can, with due diligence, be obtained; and (III) there are grounds upon which a warrant described in subsection (a)(1) could be issued authorizing such access; and
(ii) makes an application in accordance with this section for a warrant described in subsection (a)(1) as soon as practicable, but not later than 7 days after the investigative or law enforcement officer accesses the digital contents under the authority under this subparagraph.
Well, it sure seems to me that in order to make use of those ’emergency’ exceptions they would have to have some prior knowledge of the activities of the individual(s) who’s equipment they want to search. It doesn’t seem like acting ‘furtively’ in the airport or at the border crossing is going to suffice. Or will it?
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Careful where you’re stepping, fam.
blue doesn’t like it when other posters question authority. Or use horizontal lines; he’s got a monopoly on those.
Re: Re: Since when does any fanboy question the NYT / WaPo view?
This is THE most Establishment site I know of, where mild-mannered ME is the rebel! Sheesh. I’M the one tells ya don’t give in to the OBVIOUSLY IMMINENT corporate control system, kids. It’s literally fascism with a rainbow color facade.
Those aren’t showing up for me in two widely disparate browsers. I concluded, perhaps wrongly, that had been disabled in "Markdown". If you’re seeing one above the second blockquote above, that’s fine with me, enjoy.
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The establishment right now is Trump. Which you regularly criticize the site for not kissing the feet of.
So by your own metrics, you claimed the site is pro-establishment… by being the most anti-establishment.
Hook, line and sinker. Thanks for playing!
How’s that "Shiva Ayyadurai invented email" fund coming along? John Smith stop crying yet?
Re: Re: Re: Since when does any fanboy question the NYT / WaPo v
"THE most Establishment site"
What does this mean? Are you attempting to communicate or are you just babbling?
Re: Re: Re:2 Since when does any fanboy question the NYT / Wa
He wanted to use the word "antidisestablishmentarianism" but couldn’t spell it.
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This is a catch all clause per their subsection headings. Anyone obtuse can see it.
Yet another flight of fancy. As Shatner said: "This won't go."
Borders are not ordinary places nor ordinary conditions. NEVER have been anywhere since invented. The obvious REASON why set up borders in first place is to keep out undesirables. And, YES, We have a right to do so, while no one has ANY right to enter the US without permission and on our terms. Period.
But it’s always a shock to Techdirt that even have borders! Techdirt being of globalist views has the notion that all borders should be done away with. [By the way: "BlackListedNews" and others who are STILL linking to this corporatist site: just LOOK at Techdirt. This is not a "libertarian" outpost. It’s Ivy League / Establishment like the New York Times / WashPo!]
Wyden and Paul are impractical loonies. No country EVER practiced "libertarianism" because it’s simply witlessly inviting people to "control themselves", which will never work, and without any awareness that are truly evil people around. It’s the "philosophy" of overly-mothered thirteen-year-olds.
And why even worry about gov’t when the same fools with "smartphones" give away as much to utterly unknown entities? — Which almost certainly gets to gov’t! Only requires specific search, just as whatever they put in directly does.
https://www.washingtonpost.com/technology/2019/05/28/its-middle-night-do-you-know-who-your-iphone-is-talking/
Whatever drawbacks you suffer are deserved.
Re: your an ignorant xenophobic fuck
Wiki: …."On 30 December 1853, the [two] countries by agreement altered the [ 1,900 mile ] border from the initial one by increasing the number of border markers from 6 to 53. Most of these markers were simply piles of stones, …later conventions, in 1882 and 1889, further clarified the boundaries, as some of the markers had been moved or destroyed. Photographers were brought in to document the location of the markers. These photographs are in Record Group 77, Records of the Office of the Chief Engineers, in the National Archives."
California is the 6th or 9th largest economy on the planet BECAUSE of brown "illegals". France imports Algerians, Germany Turks, England Pakistanis, Japan Vietnamese, because their working age populations are shrinking, and fresh first generation aliens work hard. Thus, America had no immigrant boundary except the last century. Disclaimer; this Quaker meetinghouse started as a USC sorority for Asian students, they had no legal place to live in the 1930’s. Hitler gave credit and precedents to our 1920’s exclusion laws
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In the case of the Trump administration, “undesirables“ means “brown people” regardless of any other context. I would ask if you share his views, but I’m pretty sure you don’t have any of your own to begin with.
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Sorry to burst your bubble, but you might be surprised to learn that Trump’s immigration authorities have been arresting and deporting White, English-speaking Christians in record numbers.
https://www.irishtimes.com/news/world/us/us-crackdown-on-illegal-irish-intensifies-in-boston-1.3322514
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And yet, the immigrants he targets in the press and on Twitter are from south of the American border. I haven’t heard him talk about Irish immigrants in any of his rants on the subject.
Also, from that two-year-old article:
That might be a “record number” of deported Irish people. But I doubt that number was significantly higher than the number of deported Mexican/Southern American people in 2017.
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Do any Irish immigrants get yelled at for speaking their native language?
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Whatever drawbacks you suffer are deserved.
I agree. Now you have to pass the "whether the judge thinks your porn lawsuit is copyright trolling" test.
Your tears are delicious. Please don’t stop.
Re: Yet another flight of fancy. As Shatner said: "This won't go
What does an iphone have to do with "ut it’s always a shock to Techdirt that even have borders! Techdirt being of globalist views has the notion that all borders should be done away with. [By the way: "BlackListedNews" and others who are STILL linking to this corporatist site: just LOOK at Techdirt. This is not a "libertarian" outpost. It’s Ivy League / Establishment like the New York Times / WashPo!]"
I think you have no path in logic or you’re pathological.
Re: Re: Yet another flight of fancy. As Shatner said: "This won'
Shatner was the epitome of white male privilege, after spouting BS about ‘not interfering’ with each and every obviously inferior culture around our Universe, Star-Dreck always had to introduce American exceptionalism & violence to resolve the Alien’s ‘problem’. At the Sci-Fi Convention® in 1977, Shatner answered the first question from the audience about StarWars; Are there no Blacks in Space? by inferring that Wookies are black inside.
"It’s death to cinema, I can’t watch those Star Wars films, they’re dead things." -film director Terry Gilliam
Re: Yet another flight of fancy. As Shatner said: "This won't go
"Borders are not ordinary places nor ordinary conditions. NEVER have been anywhere since invented. The obvious REASON why set up borders in first place is to keep out undesirables."
And this is absolutely irrelevant to the debate which has border patrol agents able to refuse entry if you don’t unlock your phone – which is tantamount to giving up EVERY vestige of personal privacy without any cause or suspicion given.
Actually dangerous criminals, meanwhile, who know there’s the risk someone will demand they unlock their device, won’t be dumb enough to actually carry one containing compromising data.
As usual, Baghdad Bob, it appears the concept of "law" to you has nothing to do with proportionality, actual guilt, or reason.
Ah yes officer, my password is "DELETEALLFILES" . Thats all caps, no spaces.
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I think that would work on the low IQ level but the not data retrieval experts if they have any experts.
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The thought of setting the password before travels was amusing.
According to the ACLU site, 2/3 of the population lives in the 100 mile ‘border’
https://www.aclu.org/other/constitution-100-mile-border-zone
This week on 'Bills that should in NO way be needed...'
It’s just beyond sad that there is actually a need to make it explicit(again) that if you want to engage in a search you need a gorram warrant and can’t just do it on a whim.
While I’d give a snowball better odds of surviving hell than this bill surviving both houses and Trump, the fact remains that it is needed, and dearly, given how many government agencies/employees(and the gutless and/or corrupt judges that support them) consider that pesky ‘Constitution’ to be entirely optional and binding only at their whim.
They’re not “immigrants”; they’re illegal immigrants. Not acknowledging the difference disrespects those who put in the hard work to come to the country legally and shows your bias. It’s not about whether they commit more crime or not (not even counting the crime of entering illegally); it’s about respecting rule of law, the foundation of our country.
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You get called a racist a lot don’t you. And you also think that instead of you being a racist it’s everyone else’s problem isn’t it.
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You get called an idiot a lot don’t you. And you also think that instead of you being an idiot it’s everyone else’s problem isn’t it.
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Did you think that was clever?
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Do you know what the word Idiot means?
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Fuck off with that noise. The whole "you’re racist if you don’t support unchecked illegal immigration" schtick is beyond tired at this point. No one actually believes it, even the ones hurling the accusation. It’s just become a convenient way to shut up the opposition on the issue.
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"Support unchecked illegal immigration" is nothing more than a shit-filled strawman.
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wth does that mean anyways
I have not heard of anyone, even the anarchists, that suggest the borders be completely open – as in no walls, no customs, no checking at all. How ridiculous.
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It certainly is a bizarre false dichotomy – that the only alternative position to this administration’s willful breaking of the law is to want no laws at all.
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Then you haven’t been paying attention. The open borders crowd on the Left is significant and vocal. And if you disagree with them and/or don’t support anything less than unchecked movement of people from Central and South America into the U.S., you’re immediately branded a racist by them.
The Case for Opening Our Borders
http://inthesetimes.com/features/immigration-reform-open-borders-ice-border-wall.html
What if There Was No Border?
https://www.vogue.com/article/open-borders-america-history-surveillance-citizenship
Progressives Should Support Open Borders — With No Apology
https://fpif.org/progressives-should-support-open-borders-with-no-apology/
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The people you are accusing of wanting completely open borders are not "the crowd on the left" as you have attempted to portray them.
Where do any of those articles claim anyone wants completely open borders? Where does it say that open borders means there is nothing at all stopping anything from crossing?
Re: Re: Re:5 Re:
Jeezus Christ, it’s in the damn title of one of the articles: "What if There was No Border?"
I can’t tell if you actually that thick or if you’re just playing stupid for effect.
Re: Re: Re:3 Your under a rock for a reason
As a lifetime member of the basic anarchist religion of America (historically, ‘Yearly’ and ‘1/4ly’ meetings only have a phone number, no desk, office or decision power, which rests only in the local meetings) i argued OPEN BORDERS at the 2000 Democratic Convention. Under NAFTA, our nations border are transparent to goods, services and capital; the French & Israel own & run our LA city bus system. Only persons (wages) are restricted. Thus, when GM opens a new plant in Chihwhwa Mexico, skilled employees are screwed. When GM shuts down their Detroit plant for each model change…. In a few years, the reverse happens, over and over since January 1, 1994. Under ‘GDP’, only that which is ‘monetized’ AND CROSSES A BORDER COUNTS, not like the GNP of Bretton Woods.
Re: Re: Re:4 Your under a rock for a reason
"Your under a rock for a reason"
My under a rock? I assume you meant to type you’re. Which, having looked around a bit, is absolutely not the case.
Please tell us what you think open borders means.
Re: Re: Re:5 You'r rock is the same wage for 40 years & a x10 house price
http://www.forbes.com/sites/joannmuller/2012/06/01/gm-unloads-26-billion-in-white-collar-pensions-could-union-workers-be-next/
MIT says: " The top exports of Mexico are Cars ($45.1B), Vehicle Parts ($28B), Delivery Trucks ($26.7B), Computers ($22.5B) and Crude Petroleum ($19.5B), $307B into the US. "
He He, I’v misused You’r at least thrice, & nue some1 wood hook me, Jerk.
Webster spent the later half of his life creating his diction-ary too stratify America according to his vision based on white cristian & a class-based diction. A sub-set of Quakers have spent generations replacing Webster’s spelng and enunciation to thwart the prerequisite of twelve years of formal education before entering polite society; thus a peculiar and deliberate Quaker lingo and a resistance to language oppression, manifest in Ebonics et al.
Wiki; " Noah preached the need to Christianize the nation.[46] Webster grew increasingly authoritarian and elitist, fighting against the prevailing grain of Jacksonian Democracy. Webster viewed language as a tool to control unruly thoughts. His American Dictionary emphasized the virtues of social control over human passions and individualism, submission to authority, and fear of God; they were necessary for the maintenance of the American social order. "
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You’re the only one talking about race, dimwit. The discussion is about rule of law, regardless of what race you are or where you come from. Try flying into the country (any country) from Norway, Mexico, or Canada without a passport, and I guarantee that your results will be the same, regardless of nationality. Get ready for a swift kick in the ass out of the country.
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They also don’t do daft things, like having border officers lie to asylees in express contravention of statute and international convention to prevent them from applying for asylum…
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Yeah.
They do not rape the immigrants either. And they immigrants are provided sweet accommodations, why it is the life of riley. I might leave and come back simply for the free stuff!
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Hint: it’s ICE who hasn’t been respecting the rule of law re: asylum applicants as of late. (And that’s but one of their many lawless acts, up to and including occasionally managing to deport US citizens in violation of their Fifth and Fourteenth Amendment due process rights.)
Well, that's everyone isn't it?
With the conspiratorial activities clause in there, the rest of the bill text might as well be quiche. The government already think every single living person is conspiring against the government. That’s why they’re searching all the devices in the first place.
Why?
These are people who already spit on their oath to uphold the Constitution; why do you think that they’d be any more likely to obey a law that Congress passed?
Re: Why?
So instead we should do … what?
Let’s have our cake and eat it too.
Proudly proclaim that citizen privacy and dignity is paramount, prove it by sponsoring a bill.
Said bill has fine print and the fine print you are not supposed to be aware of says none of the above is applicable anywhere under certain circumstances … which happens to be all the time.
Bill Introduced To Create A Warrant Requirement...
Gee, and here I was thinking that we already had such a requirement in the 4th amendment to the US Constitution.
You know, it’s getting pretty bad when the courts ignore the rights enshrined in the US Constitution and say "Oh that doesn’t matter. If the government really wanted people to have those rights they would make a law saying so."
Well, they are part of the same system, aren’t they? What do you expect?
Fuckers.
Pure baloney. He’s not doing because he "wants to discourage immigrants from coming to this country".
He’s doing it because he "wants to discourage illegal aliens from illegally jumping the border into this country.
You can be (justifiably) critical of Trump’s wall effort without lying, Cushing. A little honesty in your rhetoric would go a long way.
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Unless his plan is to put it in the middle of the Rio Grande, they will already be in this country when they encounter the wall.
It’s a retarded idea that caters to xenophobic dimwits who apparently aspire to be melon-pickers and think Mexicans are taking their dream away from them.
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It’s funny to watch those who accuse immigrants of taking their jobs, but when offered they refuse to take the same jobs.
Re: Re: Re: Re:tired trope
Have you ever scrubbed a toilet that wasnt your own, or tilled soil for a strangers garden?
If not, please retire that trope that just sharted out of your faceass.
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You (and other cops) should just be glad that this author no longer focuses on police brutality stories.
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And here I thought he was doing all these crazy machinations for the votes.
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[Asserts facts not in evidence]
That’s so easy, in fact, that that’s… exactly what Tim already did.
Perhaps you should lay off potent hallucinogens like Sean Hannity’s emissions.
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The evidence is that a wall wouldn’t stop anyone but illegal aliens. Legitimate immigrants don’t cross the border in the open desert out in the middle of nowhere, genius.
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Yeah, your wall will stop a few. Only problem is that most illegal immigrants are not from Mexico and did not cross the border from Mexico.
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Ah, here we have another member of the Disingenuous Ad Hom Brigade.
It’s not ‘my wall’. I’ve never advocated for it. In my initial post, I even said criticism of the wall was justified. But here you are calling it ‘my wall’ so you can take a cheap shot.
That trick might be effective if you can find someone stupid enough to fall for it.
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Exactly – no evidence whatsoever.
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Toom1275: "Asserts facts not in evidence"
Me: <points out the evidence is basic logic and common sense>
Toom1275: "No evidence!"
It’s impossible to do anything with that. You’re basically doing that thing that 5-year-olds do when they shut their eyes, stick their fingers in their ears, and chant ‘la-la-la’ to avoid an unwanted truth.
You have fun with that.
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Emulating Jhon’s call-hallucinations-logic-and-common-sense schtick lole that isn’t that great of an idea.
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Well, then why don’t you tell me how many legal immigrants cross the border out in the middle of the open desert where there is no port of entry?
Tell me how that works in detail, since you’re so clever and I’m ‘hallucinating’.
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DHS counts ~60k asylum seekers from South American origins in 2017. As Trump keeps shutting down the legal ports of entry to keep the browns out, ‘illegal’ ones have to pick up the gap.
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Addendum: Legal presence (asylum) overrides "illegal" method (desert).
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No, it doesn’t. Asylum requests have to be made according to the established policies and procedures found in the enabling treaty. You don’t get to do whatever you want and then claim it’s legal because asylum.
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[citation needed]
(from a fact-based source, please)
Re: Re: Re:6 Re:
(1) Asylum is not immigration. Legally, they are two completely different things. People requesting asylum are not immigrants.
(2) Crossing the border illegally, then suddenly declaring asylum only when caught, is not a legitimate way to seek asylum, so ‘picking up the gap’ doesn’t turn illegal aliens into legal ones.
REALLY..
So, they can HOLD my phone until they get the warrant????
And that takes how long?? And my Phone is no longer in my possession??
"President Trump is still demanding a wall and has declared a national emergency simply because he wants to discourage immigrants from coming to this country."
Way to insert your bias way way up in there. False statement by the way, but you knew that already.