It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
The 4th Amendment says, exactly:
The right of the people to be secure in their persons, houses, papers, and effects, 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.
I do not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].
> It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
People keep misconstruing this.
The border search exemption only applies when someone is actually crossing a border, and it does grant broad authority to search whatever they're carrying with them at the time. The authority to do border enforcement within a 100-mile zone around borders does not grant a broad authority to search. It does grant a narrow authority to do things like traffic checkpoints, but those don't permit searches for anything smaller than a person without additional evidence.
I do think the ruling establishing the authority to run checkpoints other than actual border crossings was wrongly decided and harmful, but it's not what's at issue in this case.
To add to that, the ruling intentionally did not make a decision on two important distinctions:
1. Forcing you to unlock - in this case, Alisigwe unlocked their phone willingly after being asked.
2. Forensic extraction - the ruling does not give authorities the power to run a sophisticated off-site break-in on your phone without reasonable suspicion.
So if you are a US citizen, and you are willingly unlocking your phone at the border (or you don't have a passcode), the Fourth Amendment no longer protect you from a suspicionless manual search of the phone at the border
But what they can do is confiscate your phone, _image_ it, without the access attempt, and keep the phone as evidence until or unless they feel the need to apply for a warrant for the access.
No. They cannot keep the phone, and they cannot copy the phone data without reasonable suspicion under this ruling (connecting the phone to an external device to copy is considered advanced forensic and already has case law around it).
True, but Egbert v. Boule (2022) the SCOTUS determined there's no penalty established or monetary damages owed to you if Border Agents cross the boundary of the exemption and violate your Fourth Amendment right.
The remedy is disallowing evidence collected. This is the same for almost every case in which law enforcement searches without proper cause or a warrant.
And I don't know what that would be surprising. Where monetary damages are due they are because statute establishes them, or you can show some specific and direct financial harm (thus money damage is the remedy).
Doesn't stop further action based on your private data and retribution for evidence of anti-American speech or potentially-criminal travel patterns. In terms of government surveillance, evidence doesn't need to be submitted to court. It can be provided to a government surveillance contractor like Palantir or Flock for national security purposes.
The current Exectutive Branch has a history of keyword-search driven action, without a chain-of-command of proper review before action.
At least one American citizen has successfully been un-deported based on bad information resulting in deportation action. DHS has a Predictive Policing division willing to conduct unconstitutional, warantless parellel construction.
Warrantless surveillance is well established, and anti-American evidence may exist on your device depending on the reasonable suspicion provided by other Palantir-esque analysis of your online activity and your level of support of the ruling power. The law enforcement agent you encounter won't receive that context, just that the system they usually use flagged you as suspicious without your knowledge (depending on the jurisdiction you're in).
To your point, it only needs to be justified in court if you take legal action. Per Egbert v. Boule (2022), no remedy for American citizens seeking damages for unjustified violations of the First Amendment or Fourth Amendment when it comes to immigration enforcement-related action exists unless explicitly defined by Congress (which it has not, yet).
So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
The US has famously failed to update its legal framework via the legislative branch, so
It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
>>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
>>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today
It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
> The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting…
Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
There, shoftim refers to judges who interpret and apply the law, requiring deep literacy in the Torah to ensure righteous judgment without favoritism or bribery. Shotrim are the enforcers of the court (sheriffs, etc.).
I don't know where people get the idea that the role of a judge is not to interpret the law. This is literally the only thing SCOTUS does.
It's their job to interpret but not to invent new laws or ponder which laws "make sense".
In particular just because it "makes sense" to extend 4th amendment reading doesn't justify judges just going for it. That would be legislating from the bench.
But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?
That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?
Well intentioned laws today can be used by illintentioned actors in the future, and mild legal exceptions can become significant ones with a couple additions.
The 100 mile zone is a good example - that 100 mile zone assumes the entirety of the great lakes is international waters, even though Lake Michigan is 100% American Territory and over 300 miles long. So, you could be in a landlocked county of Indiana, and be harassed by the federal government for being in a border zone.
Whats to stop someone from saying, the entire Mississippi river and its tributaries are a border zone? With that you could get 80% of the US population into the border zone.
By enabling some "rule based" decisions that skirt the constitution, you enable a legal mechanism for constitutional rights to be violated without any legislation.
It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.
Sure, but if you're driving in NM or TX or AZ, what constitutes that reasonable basis for a stop? As long as the car is legal, there can't be any, yet they still do roving patrols. The also stop buses and trains mid-transit (not at stations), which again, hard to conceive of why that would be necessary - if they know an illegal is on a bus/train, sure stop it and get the person, but asking everybody onboard - should be illegal.
I don't see many maps that include them in the visuals of border so I'm not sure of the status of that and if the feds are arguing it would count and I think they would if there was an indication they were. I do remember that that was part of the discussion when the policy/rule first got a lot of attention a few years ago but it's not showing up in the visuals now. Maybe there was a clarification or restriction added either by courts or by the executive?
Because you can't exactly sneak on/off of an international airplane. It should be pretty trivial for customs to funnel travelers through a checkpoint where they can search at the time of the actual border crossing.
Likewise we now have the technology to automatically surveil the border 24/7 (maybe modulo tunnels, though I wouldn't be surprised if we could detect those too?), so a 100-mile exception only ever becomes more and more dubious. We could've built the wall and lined it with a surveillance system for less than the cost of this Iran war (never mind all the m̶o̶n̶e̶y̶ ̶p̶r̶i̶n̶t̶i̶n̶g̶ stimulus this decade), shutting up the whole border debate once and for all, and ending justifications for internal surveillance for trafficking.
> Because you can't exactly sneak on/off of an international airplane.
I'm actually pretty curious about this. You can't easily sneak on/off a commercial international airplane, but that's because they've got the gates set up in the airport to funnel you through a specific path that leads to customs. Showing up on an international charter or GA flight seems squishier. http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20... The process seems to be that you schedule an ETA, taxi to a CBP station and wait there until a CBP officer arrives.
On the other side of it, it looks like CANPASS would let you land in Canada even if the CBSA station is closed...
It's still quite hard to sneakily fly into the US in a GA or charter plane and land unexpectedly at an international airport which is why they seem to not count. I say that because places like the SBCC don't include 100 mile bubbles around international airports on their maps of the issue.
On the other hand all aircraft are tracked (we are surely not trying to account for the possibility of a stealth aircraft transporting illicit goods across the border and secretly landing somewhere), and they can decide what they're going to demand from international flights. They might be somewhat lax on runway security, maybe? But it's a pretty constrained problem and easy to keep it localized if they want to tighten it.
Two main cases and the interpretation there-of [0]. The most expansive interpretation of the 100 mile zone that includes all coastal areas hasn't really been tested and AFAIK CBP mostly uses it in a more justifiable area around land borders so far relying on other justifications for more inland operations.
Do constitutional rights apply to non-citizens? I always thought the constitution of the USA was for USA citizens, but then I'm not from the USA and am watching all this from very far away.
Most of them do. They're usually constructed as restrictions on the government's authority rather than grants of rights to a specific group of people, and there are court rulings clearly stating rights like freedom of speech and freedom from unreasonable search apply to any person subject to the government's authority.
Non-citizens don't get the right to bear arms as far as I know.
This *1000. It's a supreme failure on our educational system and society at large that most Americans don't think about our government and our rights in these terms.
The Constitution actually takes away our rights. It has to, it lays out the powers the government has over us. Even the bill of rights doesn't technically give us rights---it explicitly details the ways our government cannot operate.
It depends on the right, some are describing "person", some are "the people". E.g. the 2nd amendment talks about the right of "the people" to keep and bear arms not being infringed and there are federal laws on the books directly barring aliens from keeping firearms so "the people" evidently does not apply to anyone everywhere in the Constitution.
Most of them do. The Constitution is clear on when it talks about citizens versus all people. The exceptions are things like the right to vote or hold federal office.
We gave the government the ability to police itself and there's no punishments for poor rulings.
The structure of the Supreme Court is foolish. It made sense initially, having the people who drafted the constitution adjudicate it. But I think it would be better to drop SCOTUS all together, letting the Federal courts sort out their disagreements via consensus. Or have a review panel setup like the House (elected, population based) who have the ability to override rulings and censure/discipline judges who make poor rulings.
Either way, we need more people involved in the process.
Also crazy that lake michigan counts as the border, despite being entirely in the US, so you could be minding your business in Fort Wayne, Indiana and have your phone searched for no reason.
You can complete a water crossing by phone or so (so like in some random harbor in Wiscansin).
That doesn't justify a random search of course, but if there was some reason to believe that you were importing something illegal they could come search ya boat.
Yeah the plain language is unambiguous. That there is an historical border search exception simply doesn't matter to me. We fought a war for this, and it's bullshit.
I mean... yea we also have some shaky interpretations of the 1st amendment (see especially, assembly), 2nd, 5th (e.g. the incredible pressure for plea bargaining), 6th (which, paradoxically, is a major reason for aforementioned pressure on plea bargaining, so I kinda get it), 8th given how bad some prisons are, arguably 10th (even if I am personally not a fan of the 10th amendment so much), and arguably still the 15th (though it's obviously orders of magnitude better than the first 100 years of its existence).
And also various other parts of the construction, like the interstate commerce clause does some comically heavy lifting.
Proximity to borders leaves the government the possibility that if it really, really wanted to search a property, they'd just have to cede some land in a 100mile radius to a foreign country and instantly create an international border wherever they need one.
The word "unreasonable" leaves the entire thing up to interpretation. Is it "reasonable" to search a traveler's phone with no indication of any wrongdoing? You'd probably say no. I'd say no. The courts say yes. Neither answer is objectively right or wrong according to this text.
If you torture the US constitution enough it will eventually confess.
There are a lot of issues that fail the constitutional grep test yet somehow they are deemed (un)constitutional. The constitution was written to protect the people and states from the overly zealous congress. Not to fix the situation in which the congress is so dysfunctional that the judiciary has to replace it.
This happened to me last month in Halifax Canada, I wanted to board a transfer flight to Amsterdam, going through Boston. I was stopped as I had salts with me from a buddhist relic I couldn't exactly identify. The machine said it contained a primary explosive (silver azide). I was ordered to give my access code to my iphone and 3 suspicious screenshots were found I made 2 years ago about the Iran/Israel war. I said I'm interested in geo-politics and watched the news.
I was barred from the US for life - it was said that it could have been much worse. When I wanted to go to the main airport hall a number of canadian police officers arrested me and drove me handcuffed to a cell.
I was asked if I wanted a lawyer and they arranged a phone call. The lawyer said I would spend to nights in a cell and then she would come to prepare my case and was strongly advised not to talk to people before that.
I was released from my cell 7 hours later that evening after a thorough and friendly conversation with the canadian special police.
I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job. That day there was a threat alert I heard later.
A week later I heard from the person who gave me the relic (I was on retreat) that the border guard contacted them and said it was a false positive (what I suspected at the time, but I didn't dare argue against the machine results).
> suspicious screenshots were found I made 2 years ago about the Iran/Israel war
> I was barred from the US for life
Getting banned for life due to wrongthink screenshots is pretty wild. No idea why screenshots would be suspicious.
> I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job.
I'd understand rejecting your entry on that day but why would they make you persona non grata forever? That seems completely out of proportion.
And just to clarify another element of the story: there is a significant legal difference between pre-clearance in a Canadian airport and landing in the US and proceeding through customs on US soil. At a pre-clearance station, you are still on Canadian soil. I'm sure there are exceptions, but you generally can "withdraw your application to enter" and basically just turn around and walk away from the border. If you decide you don't want to unlock your phone for the CBP officer, you can walk away. At that point they've already seen your passport and you're going to be flagged and may never be approved for entry again, but you're not going to end up on a CBP facility. Once you're through, you'll need to clear Canadian customs to go back, but if something happens it will be Canadian police that arrest you.
I’m confused why they would contact the person that gave you the relic to tell them it was a false positive? It doesn’t seem like something they would do. Why not contact you?
Customs has always been able to search everything without a warrant or suspicion when crossing the border. I guess this is saying that they can search the digital contents of physical devices/media as well?
"To be sure, nonroutine searches, which are “more invasive
searches, like strip searches, require reasonable suspicion.” Id. But we
have held that “the label ‘non-routine’ should generally be reserved
for intrusive border searches of the person (such as body-cavity
searches or strip searches), not belongings.” United States v. Levy, 803
F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added)."
The best time to delete all social media accounts and never post anything online with your name attached ever again was 10 years ago. The second best time is right now. This stuff can and will be used against you out of context 10, 20, 30 years into the future.
Also consider the fact that if someone else makes accounts in your name (whether maliciously or simply because they share the same name) I imagine this could be used against you.
This has happened to multiple people I know who have deleted a Facebook account. Shortly after, a fake account with their picture and info popped up. I wonder if there are bots scanning for this waiting for people to delete accounts.
I haven’t done that since around 2012. But it’s rough since you get cut off from family and friends who exclusively use social media to stay in touch. Because I don’t use Instagram or fb, there are so many local events and opportunities I keep missing out on.
Maybe not all customs are created equally, but flying between Toronto and the states I have never had to show my phone let alone my social accounts. Also never seen that going up through customs.
Anyone still crossing US borders with electronic devices that aren't fully wiped? This is company policy for some European companies for a long time. Even during the Biden administration.
Most employees just receive a wiped phone/laptop for the duration of the trip. Depending on the country its either a device that only has access to the bare minimum of Services, or for countries like Russia they issue a dumb phone that can only call and text.
Half of the commenters here seem to believe that nobody has ever done this successfully because it must be “suspicious”. Despite it being a common practice for many organizations.
It might be suspicious, but they don't get any incriminating evidence that way. It's also much easier for people visiting. Most of the time entry is denied and you can take the next plane back home. I'm fine with that, don't care. I only care if I would get taken into ICE detention. This risk grew significantly, so I simply won't go.
You make it sound so "meh, whatever", but there's a few realities attached to this:
The airline in question will likely not serve you again, but probably more importantly, when you apply for a tourist visa to just about any country on earth, you'll now have to answer that question "Have you ever been denied or refused a visa or entry into a country?" and while some might take sympathy on "Oh, yeah, we get it", you can be sure you'll be getting extra attention and some countries will threaten to deny entry too.
> Have you ever been expelled or deported from the Federal Republic of Germany, had an application for a residence permit rejected, or been refused entry into the Federal Republic of Germany?
Almost like you're just making shit up based on some anti-US sentiment.
LOL at your hypocrisy. I am a UK citizen, and I am an Australian citizen, and I am -not- a US citizen, lived and worked in both and in Europe though I am, currently, in the US. But sure, make the same assumptions that you want to think I'm guilty of making.
"Just lie on your visa applications, no countries on earth share data with each other and no-one cares except the US and who cares about them, nothing will ever happen to you."
I’m Canadian and work in healthcare. I have a dedicated travel phone that I move my SIM card to whenever I travel to the US.
I carry a letter from my work explaining that I’m not allowed to travel with electronic devices potentially containing confidential patient information in case a recently wiped phone raises any flags
I do that several times a year, and never wipe my phone. I looked at statistics of such phone examinations over the last few years, and I didn't see any difference between the current and last administrations, when nobody was wiping their phones.
Not in my organization, or in any that I know of. I don't even understand why it would be in an organization's interest to do that. Why should they care if I'm harrassed for data of a political nature? They generally tell me not to even have any such data on their property.
They do, however, require that I take a burner device or wipe it completely, if I travel to China.
I will be wiping my before I pass through US Customs next, no matter who the president is. I have no idea what some guard might randomly take issue with, best not to risk it.
Is there any difference between US citizens and visitors? It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal. Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
Ps: we also don't have some special paramilitary border police. Just regular police stationed at the border.
> It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched
What home country is that? Some places (UK I think is one) have less protection at the border for citizens than the US does. The risk of being searched for Average Joe is so small that most people don't even think about it. HN is disproportionately worried.
all of our police are essentially paramilitary now. There's nothing special about ICE or CBP other than they're federal rather than local. Even local cops have become hyper-militarized and think they're patrolling the streets of Fallujah
Yes, there's a difference: US citizens have the right to enter the USA; visitors do not. US officials can deny a visitor entry arbitrarily, and the visitor has limited recourse to appeal such a decision. A visitor who does not cooperate with officials who want to search something is likely to be denied entry.
A citizen may only be denied entry if they're entering the country for the purpose of committing a crime, and if the government can prove that, they'll probably admit the citizen and immediately arrest them instead.
A US citizen cannot be denied entry into the country for ANY reason. A valid US passport is prima facie evidence of citizenship so once you show it the worst that can happen is you getting arrested.
It's not routine. Most tourist visitors don't have any trouble. I'm a US citizen, but I've never had my phone searched at an airport or border crossing, not that I cross the border all that often.
I know it isn't routine. But it does happen. I know two people that had to go into secondary inspection and I think they had to unlock their phones. Both of them were completely normal business travelers without anything dubious in their life or their business. One was a medical doctor another one a government employee going to an international conference hosted by a US federal institution (which required some extensive clearance and background checks to even attend). Both Western European citizens with a completely spotless CV.
>Is there any difference between US citizens and visitors?
Yes. US citizens have an absolute right of return to the US (at a land border anyway, they can be stopped from boarding a flight to the US while physically in another country). If there's an active warrant for arrest or they commit a crime right there or the like they can be arrested, but the process at that point plays out the same as an arrest anywhere in the country with the same standards. Property can be screened and denied, or potentially seized, but the person can than challenge that and it must be returned unless there is reason. This significantly changes the math as far as practical inconvenience to refusal to cooperate, though I don't want to downplay how much it could suck for most people to have expensive stuff taken for even a short period of time. But they can't keep someone from getting home and, in turn, back to financial, legal, political, and social support networks which can back them from there.
Visitors on the other hand have no right to entry at all and can be denied for any legal reason (which in practice amounts to near anything). They can be banned from future entry as well for a period of time or indefinitely. So they face different (and greater) pressure.
>In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal.
This sounds roughly the same as America then, depending on specifics. Here LEAs may not unfortunately need a court order to search the devices of an American "as best they can", but they can't compel cooperation either (and in fact generally cannot get a court order for that at all outside of a narrow exception due to the 5th Amendment). So if a device isn't encrypted, or if it is but they're able to break into it, or if (as in this case) the person in question simply goes ahead and unlocks it for them then that's at least for now allowed (hopefully SCOTUS overrules the 2C), but they can't legally force password entry.
>Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
You don't mention your country (and that's fine!) but I don't think there is a single nation anywhere that doesn't have "police superpowers" at international borders. It's sorta a core part and parcel with the basic idea of a "nation" at all, that it can if it wishes regulate its people/goods exchange with the rest of the world. When you travel within a typical free-ish country you can just stop at a store in town and buy stuff and then take it home and the police can't investigate it and demand receipts and that you pay additional taxes or just outright seize it or make you take it back. Right? That's just, normal, within a single polity everything is already under the same rules.
But a border between independent polities by definition means that there could be goods legal in one but illegal in the other, or that are subject to different standards, or different safety considerations, or where there is disagreement on whether/how externalities are accounted for, or just simply taxed differently for pure revenue purposes. In turn, what country doesn't give themselves the right to regulate import of physical stuff, even if internally there is total freedom of movement and goods? Genuinely curious?
The argument here though is that this isn't about regulation of imports, but a criminal investigation. And I agree with legal scholars like Orin Kerr that the Second Circuit got this one wrong. This was not an import power thing, trying to stop contraband or levy legal import taxes, this was a criminal case, and I think that should always be protected by the 4A.
It's the same thing for US citizens entering the US. They can try to search your device, and they can seize it temporarily (although that may end up being a long temporarily), but they can't deny you entry.
For a non-citizen, it's basically comply or go home, possibly with a fun stay in a detention center first.
So it's even better for a non-citizen, because you can just turn around and go home?
I don't get why some people end up in a detention center. Why not send them back home on the next flight? Even if people can't pay the ticket a lot of embassies will immediately pay for their citizen's ticket. Especially if they have a job and will be able to pay it back in a reasonable time. If it's an EU citizen they can be sent back on any flight going to Europe. So there is usually a possibility to leave within the hour.
Most people probably won't like having their plans ruined and a bunch of money wasted being forced to abandon their travel. And the US may be home to a noncitizen.
As for why they end up in a detention center, maybe immigration thinks they might want to ask them some more question, or maybe they're just exacting some punishment on the uncooperative foreigner.
So carry a separate device while traveling. Or wipe your phone, then restore after the border. This is just going to lead to a service that does this for you and the overreaching feds won’t be able to do anything about it.
And as far as I can tell you still don’t have to give them your pin code.
Not really. Cellebrite isn't magic. If you have an up to date OS and a strong password not pin, encryption functions as it should. The best thing to do is simply have a travel phone.
iOS: Cellebrite supports access to the latest iPhone models and iOS versions, including both after-first-unlock (AFU) and before-first-unlock (BFU) states. Recent updates have introduced new AFU access methods for previously unsupported iOS device configurations, expanding the range of devices that can be accessed without requiring a prior unlock event.
Android: The latest releases restored and expanded full file system (FFS) extraction across a broad range of newer Android models, which is an area where the competitive landscape had seen fluctuation. Coverage now spans Samsung, Google Pixel and other major Android manufacturers at their current OS versions.
They can investigate all they want, they can even detain you briefly, but if you are a citizen and there’s no evidence of a crime then they have to let you in.
That doesn't support the proposition that carrying a new or previously-cleaned phone across the border is cause for suspicion. In that case, the defendant wiped the phone after he was encountered by CBP.
What are they going to do if you’re not carrying anything illegal and you’re a citizen? You cannot be refused entry to the US as a citizen and they can’t charge you or hold you without evidence. You don’t have to tell them why your phone is wiped, just stay silent until you’re released.
It's a massive swing and a miss that GrapheneOS has a religious opposition to a VeraCrypt-style hidden volume arrangement that allows different passwords to unlock different OS volumes.
It would be vastly superior to their current solution, which basically guarantees contempt charges.
It's a bad idea because of the increased attack surface even if it was possible and it's not possible according to Veracrypt [1]. It would quickly become a known feature document in guides regularly updated and handed to law enforcement. Forensic tools would also add detections.
The problem is it will be detectable and detected and then the password demanded and a failure to provide it will result in charges. I think unfortunately the answer is the phone has to be plausibly empty when crossing the US border, they should focus their efforts on being able to store the full state of the phone remotely and encrypted and being able to restore it easily.
Would it be detectable to some goon at the border? Probably not. They'd put in the sanitized password, see nothing, and let the person go. If it gets seized and an FBI or CIA analyst gets ahold of it, then yeah the smart guys are going to see it but you'd be in that situation anyway, so why not have an out that may avoid it?
This is confusing; what happens to you if you refuse a warantless search of your property?
I'm a US citizen returning home. Do they just... send me back out of the country? :) I don't suppose they'd have the grounds to arrest me since there is no law that I can see being broken. I suppose they could keep the device until such time that a warrant could be obtained to digitally search / break into the device (but that requires some reasonable suspicion - simply refusing a warantless search isn't it).
As a citizen they cannot block you from returning to the country. What they can do however is seize your devices (and briefly your person) and other property.
Not for this they can't. They can seize your belongings but they can't detain you for something that isn't a crime and they cannot prevent you from entering the country if you're a citizen. You have an absolute right per Supreme Court rulings to enter the country unconditionally as a citizen
It’s hard to find an authoritative source with perfect data but it seems unanimous the US is in the bottom quintile in terms of share of GDP from tourism.
Almost all countries below the US have much more immediate concerns about physical safety.
It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
The 4th Amendment says, exactly:
I do not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].[1] https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...
> It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
People keep misconstruing this.
The border search exemption only applies when someone is actually crossing a border, and it does grant broad authority to search whatever they're carrying with them at the time. The authority to do border enforcement within a 100-mile zone around borders does not grant a broad authority to search. It does grant a narrow authority to do things like traffic checkpoints, but those don't permit searches for anything smaller than a person without additional evidence.
I do think the ruling establishing the authority to run checkpoints other than actual border crossings was wrongly decided and harmful, but it's not what's at issue in this case.
To add to that, the ruling intentionally did not make a decision on two important distinctions:
1. Forcing you to unlock - in this case, Alisigwe unlocked their phone willingly after being asked.
2. Forensic extraction - the ruling does not give authorities the power to run a sophisticated off-site break-in on your phone without reasonable suspicion.
So if you are a US citizen, and you are willingly unlocking your phone at the border (or you don't have a passcode), the Fourth Amendment no longer protect you from a suspicionless manual search of the phone at the border
But what they can do is confiscate your phone, _image_ it, without the access attempt, and keep the phone as evidence until or unless they feel the need to apply for a warrant for the access.
No. They cannot keep the phone, and they cannot copy the phone data without reasonable suspicion under this ruling (connecting the phone to an external device to copy is considered advanced forensic and already has case law around it).
True, but Egbert v. Boule (2022) the SCOTUS determined there's no penalty established or monetary damages owed to you if Border Agents cross the boundary of the exemption and violate your Fourth Amendment right.
https://en.wikipedia.org/wiki/Egbert_v._Boule
https://harvardlawreview.org/print/vol-136/egbert-v-boule/
The remedy is disallowing evidence collected. This is the same for almost every case in which law enforcement searches without proper cause or a warrant.
And I don't know what that would be surprising. Where monetary damages are due they are because statute establishes them, or you can show some specific and direct financial harm (thus money damage is the remedy).
Doesn't stop further action based on your private data and retribution for evidence of anti-American speech or potentially-criminal travel patterns. In terms of government surveillance, evidence doesn't need to be submitted to court. It can be provided to a government surveillance contractor like Palantir or Flock for national security purposes.
The current Exectutive Branch has a history of keyword-search driven action, without a chain-of-command of proper review before action.
At least one American citizen has successfully been un-deported based on bad information resulting in deportation action. DHS has a Predictive Policing division willing to conduct unconstitutional, warantless parellel construction.
Warrantless surveillance is well established, and anti-American evidence may exist on your device depending on the reasonable suspicion provided by other Palantir-esque analysis of your online activity and your level of support of the ruling power. The law enforcement agent you encounter won't receive that context, just that the system they usually use flagged you as suspicious without your knowledge (depending on the jurisdiction you're in).
To your point, it only needs to be justified in court if you take legal action. Per Egbert v. Boule (2022), no remedy for American citizens seeking damages for unjustified violations of the First Amendment or Fourth Amendment when it comes to immigration enforcement-related action exists unless explicitly defined by Congress (which it has not, yet).
So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
>>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
>>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today
It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
https://www.rightsprotection.org/the-united-states-constitut...
If the constitution doesn't take away a right from you specifically, then you have that right.
As you snipped out
> The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting…
Yes but it's still not the job of the judges to do that for them.
Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
There, shoftim refers to judges who interpret and apply the law, requiring deep literacy in the Torah to ensure righteous judgment without favoritism or bribery. Shotrim are the enforcers of the court (sheriffs, etc.).
I don't know where people get the idea that the role of a judge is not to interpret the law. This is literally the only thing SCOTUS does.
It's their job to interpret but not to invent new laws or ponder which laws "make sense".
In particular just because it "makes sense" to extend 4th amendment reading doesn't justify judges just going for it. That would be legislating from the bench.
And this is a particular opinion you hold, not necessarily an agreement in the community / nation or even a belief of the legal system about itself.
But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?
That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?
Well intentioned laws today can be used by illintentioned actors in the future, and mild legal exceptions can become significant ones with a couple additions.
The 100 mile zone is a good example - that 100 mile zone assumes the entirety of the great lakes is international waters, even though Lake Michigan is 100% American Territory and over 300 miles long. So, you could be in a landlocked county of Indiana, and be harassed by the federal government for being in a border zone.
Whats to stop someone from saying, the entire Mississippi river and its tributaries are a border zone? With that you could get 80% of the US population into the border zone.
By enabling some "rule based" decisions that skirt the constitution, you enable a legal mechanism for constitutional rights to be violated without any legislation.
It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.
Sure, but if you're driving in NM or TX or AZ, what constitutes that reasonable basis for a stop? As long as the car is legal, there can't be any, yet they still do roving patrols. The also stop buses and trains mid-transit (not at stations), which again, hard to conceive of why that would be necessary - if they know an illegal is on a bus/train, sure stop it and get the person, but asking everybody onboard - should be illegal.
I've heard (but can't back up) that any city with an international airport counts as a 'border' for this purpose.
I don't see many maps that include them in the visuals of border so I'm not sure of the status of that and if the feds are arguing it would count and I think they would if there was an indication they were. I do remember that that was part of the discussion when the policy/rule first got a lot of attention a few years ago but it's not showing up in the visuals now. Maybe there was a clarification or restriction added either by courts or by the executive?
See the map here: https://www.southernborder.org/100_mile_border_enforcement_z...
Probably. If international flights are arriving, why wouldn't it?
Because you can't exactly sneak on/off of an international airplane. It should be pretty trivial for customs to funnel travelers through a checkpoint where they can search at the time of the actual border crossing.
Likewise we now have the technology to automatically surveil the border 24/7 (maybe modulo tunnels, though I wouldn't be surprised if we could detect those too?), so a 100-mile exception only ever becomes more and more dubious. We could've built the wall and lined it with a surveillance system for less than the cost of this Iran war (never mind all the m̶o̶n̶e̶y̶ ̶p̶r̶i̶n̶t̶i̶n̶g̶ stimulus this decade), shutting up the whole border debate once and for all, and ending justifications for internal surveillance for trafficking.
> Because you can't exactly sneak on/off of an international airplane.
I'm actually pretty curious about this. You can't easily sneak on/off a commercial international airplane, but that's because they've got the gates set up in the airport to funnel you through a specific path that leads to customs. Showing up on an international charter or GA flight seems squishier. http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20... The process seems to be that you schedule an ETA, taxi to a CBP station and wait there until a CBP officer arrives.
On the other side of it, it looks like CANPASS would let you land in Canada even if the CBSA station is closed...
It's still quite hard to sneakily fly into the US in a GA or charter plane and land unexpectedly at an international airport which is why they seem to not count. I say that because places like the SBCC don't include 100 mile bubbles around international airports on their maps of the issue.
https://www.southernborder.org/100_mile_border_enforcement_z...
On the other hand all aircraft are tracked (we are surely not trying to account for the possibility of a stealth aircraft transporting illicit goods across the border and secretly landing somewhere), and they can decide what they're going to demand from international flights. They might be somewhat lax on runway security, maybe? But it's a pretty constrained problem and easy to keep it localized if they want to tighten it.
Yeah, where does this come from? Who keeps defending this, has it been challenged?
About 213 million people live in this zone, so 2/3 of people in the USA. So I guess the 4th amendment doesn't actually apply to most US citizens?
Two main cases and the interpretation there-of [0]. The most expansive interpretation of the 100 mile zone that includes all coastal areas hasn't really been tested and AFAIK CBP mostly uses it in a more justifiable area around land borders so far relying on other justifications for more inland operations.
[0] ^f Supreme Court: https://forumtogether.org/article/explainer-u-s-border-patro...
Do constitutional rights apply to non-citizens? I always thought the constitution of the USA was for USA citizens, but then I'm not from the USA and am watching all this from very far away.
Most of them do. They're usually constructed as restrictions on the government's authority rather than grants of rights to a specific group of people, and there are court rulings clearly stating rights like freedom of speech and freedom from unreasonable search apply to any person subject to the government's authority.
Non-citizens don't get the right to bear arms as far as I know.
This *1000. It's a supreme failure on our educational system and society at large that most Americans don't think about our government and our rights in these terms.
The Constitution actually takes away our rights. It has to, it lays out the powers the government has over us. Even the bill of rights doesn't technically give us rights---it explicitly details the ways our government cannot operate.
It depends on the right, some are describing "person", some are "the people". E.g. the 2nd amendment talks about the right of "the people" to keep and bear arms not being infringed and there are federal laws on the books directly barring aliens from keeping firearms so "the people" evidently does not apply to anyone everywhere in the Constitution.
Generally yes but government can currently cancel your visa due to exercising those rights in many cases.
The constitution applies to all people under US jurisdiction. It only specifies a few citizen-only rights, like voting.
Most of them do. The Constitution is clear on when it talks about citizens versus all people. The exceptions are things like the right to vote or hold federal office.
We gave the government the ability to police itself and there's no punishments for poor rulings.
The structure of the Supreme Court is foolish. It made sense initially, having the people who drafted the constitution adjudicate it. But I think it would be better to drop SCOTUS all together, letting the Federal courts sort out their disagreements via consensus. Or have a review panel setup like the House (elected, population based) who have the ability to override rulings and censure/discipline judges who make poor rulings.
Either way, we need more people involved in the process.
Also crazy that lake michigan counts as the border, despite being entirely in the US, so you could be minding your business in Fort Wayne, Indiana and have your phone searched for no reason.
You can complete a water crossing by phone or so (so like in some random harbor in Wiscansin).
That doesn't justify a random search of course, but if there was some reason to believe that you were importing something illegal they could come search ya boat.
Yeah the plain language is unambiguous. That there is an historical border search exception simply doesn't matter to me. We fought a war for this, and it's bullshit.
I mean... yea we also have some shaky interpretations of the 1st amendment (see especially, assembly), 2nd, 5th (e.g. the incredible pressure for plea bargaining), 6th (which, paradoxically, is a major reason for aforementioned pressure on plea bargaining, so I kinda get it), 8th given how bad some prisons are, arguably 10th (even if I am personally not a fan of the 10th amendment so much), and arguably still the 15th (though it's obviously orders of magnitude better than the first 100 years of its existence).
And also various other parts of the construction, like the interstate commerce clause does some comically heavy lifting.
Proximity to borders leaves the government the possibility that if it really, really wanted to search a property, they'd just have to cede some land in a 100mile radius to a foreign country and instantly create an international border wherever they need one.
The word "unreasonable" leaves the entire thing up to interpretation. Is it "reasonable" to search a traveler's phone with no indication of any wrongdoing? You'd probably say no. I'd say no. The courts say yes. Neither answer is objectively right or wrong according to this text.
If you torture the US constitution enough it will eventually confess.
There are a lot of issues that fail the constitutional grep test yet somehow they are deemed (un)constitutional. The constitution was written to protect the people and states from the overly zealous congress. Not to fix the situation in which the congress is so dysfunctional that the judiciary has to replace it.
https://en.wikipedia.org/wiki/Border_search_exception apparently
This happened to me last month in Halifax Canada, I wanted to board a transfer flight to Amsterdam, going through Boston. I was stopped as I had salts with me from a buddhist relic I couldn't exactly identify. The machine said it contained a primary explosive (silver azide). I was ordered to give my access code to my iphone and 3 suspicious screenshots were found I made 2 years ago about the Iran/Israel war. I said I'm interested in geo-politics and watched the news. I was barred from the US for life - it was said that it could have been much worse. When I wanted to go to the main airport hall a number of canadian police officers arrested me and drove me handcuffed to a cell. I was asked if I wanted a lawyer and they arranged a phone call. The lawyer said I would spend to nights in a cell and then she would come to prepare my case and was strongly advised not to talk to people before that. I was released from my cell 7 hours later that evening after a thorough and friendly conversation with the canadian special police. I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job. That day there was a threat alert I heard later. A week later I heard from the person who gave me the relic (I was on retreat) that the border guard contacted them and said it was a false positive (what I suspected at the time, but I didn't dare argue against the machine results).
> suspicious screenshots were found I made 2 years ago about the Iran/Israel war
> I was barred from the US for life
Getting banned for life due to wrongthink screenshots is pretty wild. No idea why screenshots would be suspicious.
> I can understand that security don't want to take any chances with people carrying supposed explosive powders on an airport, so the system was doing it's protective job.
I'd understand rejecting your entry on that day but why would they make you persona non grata forever? That seems completely out of proportion.
> I was barred from the US for life
I'm a little confused. Canadian police barred you from the US for life?
Also sounds like you did not take your lawyer's advice not to talk. Regardless, sorry you went through such a stressful ordeal over a false positive.
You can pre-clear US customs and immigration in a number of Canadian airports, including Halifax
And just to clarify another element of the story: there is a significant legal difference between pre-clearance in a Canadian airport and landing in the US and proceeding through customs on US soil. At a pre-clearance station, you are still on Canadian soil. I'm sure there are exceptions, but you generally can "withdraw your application to enter" and basically just turn around and walk away from the border. If you decide you don't want to unlock your phone for the CBP officer, you can walk away. At that point they've already seen your passport and you're going to be flagged and may never be approved for entry again, but you're not going to end up on a CBP facility. Once you're through, you'll need to clear Canadian customs to go back, but if something happens it will be Canadian police that arrest you.
I commend your understanding. I would have been losing my mind with rage.
You were barred for life over a false positive? That's crazy.
They were barred for life for having screenshots the current administration considers anti-American.
I’m confused why they would contact the person that gave you the relic to tell them it was a false positive? It doesn’t seem like something they would do. Why not contact you?
Customs has always been able to search everything without a warrant or suspicion when crossing the border. I guess this is saying that they can search the digital contents of physical devices/media as well?
Not everything. From the case itself:
"To be sure, nonroutine searches, which are “more invasive searches, like strip searches, require reasonable suspicion.” Id. But we have held that “the label ‘non-routine’ should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings.” United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added)."
It says they can manually search them. According to this, the ruling explicitly doesn’t say if they can digitally search them.
digitally also means “using the fingers”, so never consent to a digital search without prior clarification
You using the whole fist, doc?
Breathe easy.
The best time to delete all social media accounts and never post anything online with your name attached ever again was 10 years ago. The second best time is right now. This stuff can and will be used against you out of context 10, 20, 30 years into the future.
Also consider the fact that if someone else makes accounts in your name (whether maliciously or simply because they share the same name) I imagine this could be used against you.
This has happened to multiple people I know who have deleted a Facebook account. Shortly after, a fake account with their picture and info popped up. I wonder if there are bots scanning for this waiting for people to delete accounts.
I haven’t done that since around 2012. But it’s rough since you get cut off from family and friends who exclusively use social media to stay in touch. Because I don’t use Instagram or fb, there are so many local events and opportunities I keep missing out on.
I always thought it was bold for people to post anything using their real identity.
You never know if a stance you have now will be frowned upon in 5 or 10 years from now.
I’ve heard you can’t pass customs with a phone without your social network accounts.
You don't need to post under your real name to be IDed.
It's trivial to acquire a list of real people tied to email addresses, phones, social media. And that's what's out there for "normal" businesses.
Who knows what kind of tooling is available to people who serve on the boards of tech giants?
Maybe not all customs are created equally, but flying between Toronto and the states I have never had to show my phone let alone my social accounts. Also never seen that going up through customs.
Sometimes people get searched randomly, and occasionally it correlates to their skin color.
Completely agree.
Does HN comply with CCPA requests?
Anyone still crossing US borders with electronic devices that aren't fully wiped? This is company policy for some European companies for a long time. Even during the Biden administration.
Most employees just receive a wiped phone/laptop for the duration of the trip. Depending on the country its either a device that only has access to the bare minimum of Services, or for countries like Russia they issue a dumb phone that can only call and text.
Half of the commenters here seem to believe that nobody has ever done this successfully because it must be “suspicious”. Despite it being a common practice for many organizations.
It might be suspicious, but they don't get any incriminating evidence that way. It's also much easier for people visiting. Most of the time entry is denied and you can take the next plane back home. I'm fine with that, don't care. I only care if I would get taken into ICE detention. This risk grew significantly, so I simply won't go.
You make it sound so "meh, whatever", but there's a few realities attached to this:
The airline in question will likely not serve you again, but probably more importantly, when you apply for a tourist visa to just about any country on earth, you'll now have to answer that question "Have you ever been denied or refused a visa or entry into a country?" and while some might take sympathy on "Oh, yeah, we get it", you can be sure you'll be getting extra attention and some countries will threaten to deny entry too.
Lol no. Nobody cares. Also airlines don't care.
Edit: typical US perspective. Something that happens in the US doesn't have relevant implications to the rest of the world.
Airlines do care. They get assessed a fee for every passenger that is turned around.
Oh look, Australia cares: https://immi.homeaffairs.gov.au/form-listing/forms/1563.pdf
> Have you, or any other person included in your visa application, ever been removed, deported or excluded from any country (including Australia)?
Oh look, Germany cares: https://preview.auswaertiges-amt.de/blueprint/servlet/resour...
> Have you ever been expelled or deported from the Federal Republic of Germany, had an application for a residence permit rejected, or been refused entry into the Federal Republic of Germany?
Almost like you're just making shit up based on some anti-US sentiment.
LOL at your hypocrisy. I am a UK citizen, and I am an Australian citizen, and I am -not- a US citizen, lived and worked in both and in Europe though I am, currently, in the US. But sure, make the same assumptions that you want to think I'm guilty of making.
Just mark "no" on the form and it's no problem anymore. Or mark "yes" and list it. Nothing is going to happen.
That's the best you got.
"Just lie on your visa applications, no countries on earth share data with each other and no-one cares except the US and who cares about them, nothing will ever happen to you."
Cool.
Back in 2010 my employer was requiring everyone to take blank burner devices to china. Sad that's come to this in America.
I’m Canadian and work in healthcare. I have a dedicated travel phone that I move my SIM card to whenever I travel to the US.
I carry a letter from my work explaining that I’m not allowed to travel with electronic devices potentially containing confidential patient information in case a recently wiped phone raises any flags
I do that several times a year, and never wipe my phone. I looked at statistics of such phone examinations over the last few years, and I didn't see any difference between the current and last administrations, when nobody was wiping their phones.
Wiping phones/laptops before entering the US is common practice for many organizations for over a decade now.
Not in my organization, or in any that I know of. I don't even understand why it would be in an organization's interest to do that. Why should they care if I'm harrassed for data of a political nature? They generally tell me not to even have any such data on their property.
They do, however, require that I take a burner device or wipe it completely, if I travel to China.
Yes, the vast majority of US citizens returning from international travel cross the border with their regular personal, unwiped phones every day.
I will be wiping my before I pass through US Customs next, no matter who the president is. I have no idea what some guard might randomly take issue with, best not to risk it.
Yes, the whole system is broken for a long time. Basically since 9/11.
It's frankly insane that y'all have to do that, and yes Americans cross the border, perhaps haplessly.
Is there any difference between US citizens and visitors? It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal. Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
Ps: we also don't have some special paramilitary border police. Just regular police stationed at the border.
> It just seems like US citizens think those charades are normal and don't question them. In my home country I can just deny getting my devices searched
What home country is that? Some places (UK I think is one) have less protection at the border for citizens than the US does. The risk of being searched for Average Joe is so small that most people don't even think about it. HN is disproportionately worried.
It's not the UK, which is similarly fu*d up as the US.
all of our police are essentially paramilitary now. There's nothing special about ICE or CBP other than they're federal rather than local. Even local cops have become hyper-militarized and think they're patrolling the streets of Fallujah
Yes, there's a difference: US citizens have the right to enter the USA; visitors do not. US officials can deny a visitor entry arbitrarily, and the visitor has limited recourse to appeal such a decision. A visitor who does not cooperate with officials who want to search something is likely to be denied entry.
A citizen may only be denied entry if they're entering the country for the purpose of committing a crime, and if the government can prove that, they'll probably admit the citizen and immediately arrest them instead.
A US citizen cannot be denied entry into the country for ANY reason. A valid US passport is prima facie evidence of citizenship so once you show it the worst that can happen is you getting arrested.
That's the theoretical worst that should happen. The theoretical worst that could happen is far worse than that.
I remember reading about narrow exceptions, but a quick search suggests I was mistaken.
It's not routine. Most tourist visitors don't have any trouble. I'm a US citizen, but I've never had my phone searched at an airport or border crossing, not that I cross the border all that often.
I know it isn't routine. But it does happen. I know two people that had to go into secondary inspection and I think they had to unlock their phones. Both of them were completely normal business travelers without anything dubious in their life or their business. One was a medical doctor another one a government employee going to an international conference hosted by a US federal institution (which required some extensive clearance and background checks to even attend). Both Western European citizens with a completely spotless CV.
>Is there any difference between US citizens and visitors?
Yes. US citizens have an absolute right of return to the US (at a land border anyway, they can be stopped from boarding a flight to the US while physically in another country). If there's an active warrant for arrest or they commit a crime right there or the like they can be arrested, but the process at that point plays out the same as an arrest anywhere in the country with the same standards. Property can be screened and denied, or potentially seized, but the person can than challenge that and it must be returned unless there is reason. This significantly changes the math as far as practical inconvenience to refusal to cooperate, though I don't want to downplay how much it could suck for most people to have expensive stuff taken for even a short period of time. But they can't keep someone from getting home and, in turn, back to financial, legal, political, and social support networks which can back them from there.
Visitors on the other hand have no right to entry at all and can be denied for any legal reason (which in practice amounts to near anything). They can be banned from future entry as well for a period of time or indefinitely. So they face different (and greater) pressure.
>In my home country I can just deny getting my devices searched. They might be allowed to seize and seal them, awaiting a court order for searching the device. Which I could appeal.
This sounds roughly the same as America then, depending on specifics. Here LEAs may not unfortunately need a court order to search the devices of an American "as best they can", but they can't compel cooperation either (and in fact generally cannot get a court order for that at all outside of a narrow exception due to the 5th Amendment). So if a device isn't encrypted, or if it is but they're able to break into it, or if (as in this case) the person in question simply goes ahead and unlocks it for them then that's at least for now allowed (hopefully SCOTUS overrules the 2C), but they can't legally force password entry.
>Basically the same process as anywhere else in the country, international borders are not some special place that gives the police superpowers.
You don't mention your country (and that's fine!) but I don't think there is a single nation anywhere that doesn't have "police superpowers" at international borders. It's sorta a core part and parcel with the basic idea of a "nation" at all, that it can if it wishes regulate its people/goods exchange with the rest of the world. When you travel within a typical free-ish country you can just stop at a store in town and buy stuff and then take it home and the police can't investigate it and demand receipts and that you pay additional taxes or just outright seize it or make you take it back. Right? That's just, normal, within a single polity everything is already under the same rules.
But a border between independent polities by definition means that there could be goods legal in one but illegal in the other, or that are subject to different standards, or different safety considerations, or where there is disagreement on whether/how externalities are accounted for, or just simply taxed differently for pure revenue purposes. In turn, what country doesn't give themselves the right to regulate import of physical stuff, even if internally there is total freedom of movement and goods? Genuinely curious?
The argument here though is that this isn't about regulation of imports, but a criminal investigation. And I agree with legal scholars like Orin Kerr that the Second Circuit got this one wrong. This was not an import power thing, trying to stop contraband or levy legal import taxes, this was a criminal case, and I think that should always be protected by the 4A.
It's the same thing for US citizens entering the US. They can try to search your device, and they can seize it temporarily (although that may end up being a long temporarily), but they can't deny you entry.
For a non-citizen, it's basically comply or go home, possibly with a fun stay in a detention center first.
So it's even better for a non-citizen, because you can just turn around and go home?
I don't get why some people end up in a detention center. Why not send them back home on the next flight? Even if people can't pay the ticket a lot of embassies will immediately pay for their citizen's ticket. Especially if they have a job and will be able to pay it back in a reasonable time. If it's an EU citizen they can be sent back on any flight going to Europe. So there is usually a possibility to leave within the hour.
Most people probably won't like having their plans ruined and a bunch of money wasted being forced to abandon their travel. And the US may be home to a noncitizen.
As for why they end up in a detention center, maybe immigration thinks they might want to ask them some more question, or maybe they're just exacting some punishment on the uncooperative foreigner.
Land of the … laugh … free!
The problem with these laws isn't that they can search you at the border. It's that they can search you within 100 miles of the border (https://en.wikipedia.org/wiki/Border_search_exception). The total number of people who live within that zone is 213 Million people, or 2/3 of the total population (https://www.aclu.org/know-your-rights/border-zone).
Seems like a generally terrible idea. Why this cannot be one day changed to 200 miles on a whim?
Patriot Act did basically that.
It will, one day, be changed to 200 miles (or more) on a whim
So carry a separate device while traveling. Or wipe your phone, then restore after the border. This is just going to lead to a service that does this for you and the overreaching feds won’t be able to do anything about it.
And as far as I can tell you still don’t have to give them your pin code.
They don't need your pin, they can just hack the phone take all your data anyway. ICE has a contract with Cellebrite
Not really. Cellebrite isn't magic. If you have an up to date OS and a strong password not pin, encryption functions as it should. The best thing to do is simply have a travel phone.
Right now it seems GrapheneOS is the only OS capable of resisting Cellebrite.
Imaged encrypted volumes can be decrypted later. We're building massive amounts of compute with government bonds these days.
It's not magic, but that doesn't mean it doesn't work most of the time.
From https://cellebrite.com/en/blog/the-access-gap-is-closed-what... :
Here’s what that looks like in practice in 2026:
iOS: Cellebrite supports access to the latest iPhone models and iOS versions, including both after-first-unlock (AFU) and before-first-unlock (BFU) states. Recent updates have introduced new AFU access methods for previously unsupported iOS device configurations, expanding the range of devices that can be accessed without requiring a prior unlock event.
Android: The latest releases restored and expanded full file system (FFS) extraction across a broad range of newer Android models, which is an area where the competitive landscape had seen fluctuation. Coverage now spans Samsung, Google Pixel and other major Android manufacturers at their current OS versions.
the worry is that this will be interpreted as tampering and cary consequences.
This would not be tampering, because you haven’t tampered with anything. The “evidence” is simply at home.
The law isn't a computer program. Intent matters.
Try proving intent when it’s a common practice. I’d even say it’s a best practice these days, especially for business.
You’re fearmongering. Find me a case of someone getting prosecuted for having a burner phone. It doesn’t exist.
If you're worried about that, you are not living in a free country anymore.
It's been somewhat established that having a wiped or basic phone is in itself sus and reason for them to investigate you further.
They can investigate all they want, they can even detain you briefly, but if you are a citizen and there’s no evidence of a crime then they have to let you in.
And if you're not a citizen?
Then this does not apply. Best to consult a lawyer
They have more guns than you do, and these days, most of the judges are blindly and shamelessly on their side. They don't "have" to do jack.
You’re fearmongering. Despite what some may say, it’s not Nazi Germany. Rule of law still has sway.
Find me caselaw where a “basic” phone was used as valid evidence. Or where the phone was already empty when someone began to approach the border.
Rule of law still has sway.
Get back to me once the Good and Pretti homicides in Minneapolis have been prosecuted.
Rule of Law was very strong in Nazi Germany. Everything that regime did was legal in Germany at the time.
I mean they'll shoot protesters execution-style and retroactively declare that person a terrorist before they've even done any investigations.
It's not Nazi Germany, but this administration has certainly demonstrated that they're not above inventing reasons to justify their actions later.
Do you have any references to this?
https://news.ycombinator.com/item?id=49386895
That doesn't support the proposition that carrying a new or previously-cleaned phone across the border is cause for suspicion. In that case, the defendant wiped the phone after he was encountered by CBP.
What are they going to do if you’re not carrying anything illegal and you’re a citizen? You cannot be refused entry to the US as a citizen and they can’t charge you or hold you without evidence. You don’t have to tell them why your phone is wiped, just stay silent until you’re released.
Have not heard this, whats your source? I don't see how they could determine that because "its a new phone" is hard to dispute.
best case scenario is that a higher court overturns this but not holding my breath.
[dupe] https://news.ycombinator.com/item?id=49754687
What a terrible fucked up system.
It's a massive swing and a miss that GrapheneOS has a religious opposition to a VeraCrypt-style hidden volume arrangement that allows different passwords to unlock different OS volumes.
It would be vastly superior to their current solution, which basically guarantees contempt charges.
I hope they change their mind soon!
It's a bad idea because of the increased attack surface even if it was possible and it's not possible according to Veracrypt [1]. It would quickly become a known feature document in guides regularly updated and handed to law enforcement. Forensic tools would also add detections.
https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que...
[1] https://veracrypt.io/en/Wear-Leveling.html
https://veracrypt.io/en/Trim%20Operation.html
The problem is it will be detectable and detected and then the password demanded and a failure to provide it will result in charges. I think unfortunately the answer is the phone has to be plausibly empty when crossing the US border, they should focus their efforts on being able to store the full state of the phone remotely and encrypted and being able to restore it easily.
Would it be detectable to some goon at the border? Probably not. They'd put in the sanitized password, see nothing, and let the person go. If it gets seized and an FBI or CIA analyst gets ahold of it, then yeah the smart guys are going to see it but you'd be in that situation anyway, so why not have an out that may avoid it?
Yes. https://news.ycombinator.com/item?id=49399927. In the US you don't have key disclosure laws so the best course of action is to shut the fuck up [1].
[1] https://reddit.com/r/funny/comments/olecn5
Hidden volumes are impossible to detect, even with the password to the 'clean' volume and full device access.
Hidden volumes are not detectable and impossible to prove, even with the password to the clean volume and device access. That's the entire point.
My understanding is that wear-leveling on SSDs leaves forensic traces which allows hidden volumes to be detected.
This. There should be a password that unlocks to a fairly minimal, but not too minimal configuration that wouldn't have anything of interest on it.
What do you imagine being on your phone that is "of interest" to CBP at a border crossing?
Perhaps a screenshot of a politically-incorrect social media post.
https://news.ycombinator.com/item?id=49759504
This is confusing; what happens to you if you refuse a warantless search of your property?
I'm a US citizen returning home. Do they just... send me back out of the country? :) I don't suppose they'd have the grounds to arrest me since there is no law that I can see being broken. I suppose they could keep the device until such time that a warrant could be obtained to digitally search / break into the device (but that requires some reasonable suspicion - simply refusing a warantless search isn't it).
They let you in and keep your property. I've never had an issue at a border, but I still keep my devices encrypted and powered off when crossing.
As a citizen they cannot block you from returning to the country. What they can do however is seize your devices (and briefly your person) and other property.
They can put you in custody.
Not for this they can't. They can seize your belongings but they can't detain you for something that isn't a crime and they cannot prevent you from entering the country if you're a citizen. You have an absolute right per Supreme Court rulings to enter the country unconditionally as a citizen
Given that the US's economy is utterly dependent on tourism, do they just not want to have money any more or something?
Because who in their right mind is ever going to travel there at the moment?
It’s hard to find an authoritative source with perfect data but it seems unanimous the US is in the bottom quintile in terms of share of GDP from tourism.
Almost all countries below the US have much more immediate concerns about physical safety.
The US's economy is definitely not "utterly dependent on tourism".
And now you're extra suspicious if you don't have one at all