Yes, I should have said reasonable suspicion, not probable cause. Brain fart. Mea culpa.
But the fact remains, Customs had neither of those with regard to the Stockton mayor, so he couldn't be legally detained, even if he refused to give up his passwords. Declining to participate or facilitate in the government's invasion of your privacy is neither probable cause nor reasonable suspicion of anything.
> I'll try that whole "just because it's the law it isn't right" angle > the next time I get stopped for speeding. Maybe the judge will > cut me a break when I tell him the speed limit was too low for > my liking.
Yeah, Rosa Parks should have just shut up and moved to the back of the bus like she was told to, right? After all, it was the law.
And those Japanese-Americans during WWII, what a bunch of "entitled" whiners, am I right? Their internment was the law, after all, so they had no business complaining about being ripped from their homes, stripped of everything they own and put in prisons for no other reason than their ethnicity. The government was just trying to keep everyone safe, so that justifies any abridgment of so-called "rights", yes?
I've read the 4th Amendment many times and there is no "except at the border" clause to the warrant requirement. That was completely made up by the court at its whim to justify the government's blatant disregard of the Constitution's restrictions on police power.
> Yea that's because a warrant isn't required by law when searching > items entering the United States.
But a warrant or probable cause that a crime has been committed *is* required to detain a U.S. citizen, even at the border, not just "we want your passwords".
Absent probable cause of criminal activity, a U.S. citizen can be detained only for so long as it takes to establish identity. And no, pretending you can't figure out who the mayor of Stockton is for 72 hours (or whatever) won't fly.
> I agree, but how many people know how to do that?
Only the people who really are up to something nefarious.
That's why this whole thing is a farce. The people they want to catch with these searches are by and large too clever to be caught by these searches. Which leaves only the innocent to be manhandled and violated for ultimately no reason.
> And for the inevitable follow-up of perpetual incarceration until you give up your password
You *cannot* be incarcerated merely for declining to give your passwords to a border agent. You may never see your devices again, as they are unfortunately allowed to keep them until they can inspect them, and without the passwords, that would be never, but they can't throw you in a cell with no due process, no charges, no nothing, just because you don't hand them your passwords.
If this mayor had stood his ground, he would have probably been detained long enough for the cops to make a point, then released, because the moment the mayor's lawyer and the city's attorneys got involved, they'd have had a lot of 'splainin' to do.
ICE and Border Patrol have a lot of leeway at the "border" but they don't have the authority to lock people up indefinitely for no other reason than they decline to facilitate their invasion of people's personal lives.
Besides, if you're really paranoid about this sort of thing, just don't memorize the key at all. Put it in a file on a different machine somewhere and set it to delete if a "reset button" isn't clicked every 24 hours or something.
Then, if you're ever arrested, by the time they get around to questioning you, charging you, arraigning you, serving you with a warrant, then scheduling a contempt hearing before the judge when you refuse to comply, the file will have auto-deleted and you can honestly say that not only don't you know the password, but that you never di know it, and you have no way of ever knowing it.
> (And for added fun, if you do 'remember' at > some point, and they really feel like twisting the > knife, they can hit you with perjury charges or > charges for lying during an investigation
Ummm... no. Perjury, by definition, is lying under oath. People are rarely, if ever, under oath when talking with the cops during their investigation. Oaths don't come into play until the court proceedings.
Some states (and the feds) have separate offenses for lying to investigators about facts material to the investigation, but that's an entirely different offense from perjury, and even so, the government would have a hell of a time proving beyond a reasonable doubt that someone lied rather than just was able to recover a memory, as he claimed.
> You can claim that you don't remember, but if > they don't believe you they just toss you in a > cell until you 'remember'
Well, if you know that by remembering, you're going to give them evidence of something serious, like a murder, then you have to weigh which is the lesser evil of your two options:
Sit in the county jail for a few months, or maybe a couple years on the outside, until the judge gets tired of it and vacates the contempt, or give them the code and send yourself to the state penitentiary for the rest of your life.
Me? I'd choose the former.
> and the real fun bit regarding contempt of court > is that it has no maximum sentence, meaning they > could conceivably keep you locked up until you either > handed over the password or died of old age.
There's a big difference between theory and practice. In reality, no one has ever, nor would likely ever, be held in contempt for more than a few years, certainly not for multiple decades. Due process would prohibit it. And the longer they hold you, away from your belongings and files, the more realistic your claim that you can't remember the code, as memories fade over time, (especially for things like strings of random characters and numbers) and so their justification for the continuation of the contempt charge will in turn start to suffer.
There are solid judicial precedents which hold that contempt cannot be punitive, only coercive, and if the government cannot maintain reasonable proof that continued incarceration for contempt is likely to coerce cooperation, then the contempt charge must be vacated.
> The fact that you can produce the key/'key' > links you to the locked/encrypted container, > which is a solid piece of potentially incriminating > evidence.
The difference is they wouldn't need you to produce the key to a safe, because if you refuse, they could just do it the hard way and drill it open.
With encryption, that option isn't available to the government. There is no "doing it the hard way" that doesn't involve tying up very expensive processing power for centuries.
Encryption really has opened up a whole set of legal issues that never needed to be addressed before, because in the past, the government could almost always work around a recalcitrant defendant. For the first time the government is faced with a tool that the ordinary citizen can use to completely thwart it.
> And, if South Korean parents somehow felt the > government might be overstepping its bounds a bit, > cell phone providers were obliged to hassle parents > about underuse of the government-approved spy app.
It seems like the best way to get around this law (especially the "nagware" part) is to just not tell the retailer you're buying the phone for your kid. Just say it's for yourself or your spouse or something, and then give it to your kid when you get home.
> The whole point of a trial is to determine whether > a crime has been committed.
Nope. The point of the trial is to determine *who* committed the crime. By the time the trial starts, it's a foregone conclusion that a crime was committed by *someone*. The jury's task is to determine whether it was the defendant or not.
> How is that even legal ,a judge can not in a > ruling trump the Constitution , or so I thought.
It's legal because a person can waive their 4th Amendment rights and consent to searches by the government.
When it comes to probation and parole, the court is making the defendant an offer: "We'll let you out early in exchange for your agreement to waive your 4th Amendment right to be free of warrantless searches. If you decline to give consent to such searches, you're free to do so, but you'll have to serve your full sentence."
Most people want to get out of jail enough (or avoid going to jail in the first place) that they agree to the conditions.
> As for warrantless searches, the parents ought to > be doing that to begin with.
I'm curious how this "warrantless search" condition actually applies with minors. The kids might give up their 4th Amendment rights as a condition of probation, but the parents don't, and neither do any *other* kids living in the same house, so when the probation officer shows up, he can't really search the whole house-- just the one kid's room who is on probation.
Makes skirting the rules real easy. Just hide anything you don't want the probation officer to find in your brother's or sister's room, and keep yours squeaky clean.