First Circuit Rejects Device Search Challenge, Says The Fourth Amendment Doesn't Apply At Our Nation's Borders

from the we-can't-see-how-we-can-accommodate-both-you-and-the-gov't-so-gov't dept

US borders continue to be lawless places. Not because there's more criminal activity there, but because the Constitution that protects us away from borders (and international airports, etc.) barely applies at all within 100 miles of them.

The First Circuit Court of Appeals is the latest appeals court to decide borders and constitutional protections don't mix. A lawsuit over warrantless, suspicionless device searches has been rejected, with the court finding in favor of the government.

This deepens the split between circuits and their interpretation of the Constitution's effectiveness within 100 miles of the border. The Ninth Circuit said device searches must be limited to searches for contraband. In that case, the government couldn't show evidence of drug dealing would be found on the suspect's phone. The court said the government couldn't use the border search warrant exception to engage in fishing expeditions for other criminal evidence.

The Fourth Circuit also limited border searches, but only required the government to show reasonable suspicion before engaging in a forensic examination of people's phones. Not great, but better than the "this is fine" rulings handed down by the Eleventh Circuit in 2018 and this one [PDF] from the First, handed down last week.

The case handled by the First Circuit is an anomaly. It deals with a civil lawsuit brought by several plaintiffs demanding an injunction blocking the government from engaging in suspicionless device searches. Everything else handled so far by Appeals Courts has arisen from criminal cases with defendants challenging evidence obtained by warrantless (and, in some cases, suspicionless) device searches.

The First Circuit rejects the district court's finding that border officers must have something more than "because we feel like it" to engage in phone searches. It says the Riley decision doesn't apply, even if it's a search incident to an arrest, because the border search exception means no border control officer should ever have to obtain a warrant.

According to the Appeals Court, a warrant requirement would just make things difficult for the government.

[G]iven the volume of travelers passing through our nation's borders, warrantless electronic device searches are essential to the border search exception's purpose of ensuring that the executive branch can adequately protect the border. [...] A warrant requirement -- and the delays it would incur -- would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.

And "basic" searches -- ones that "only" access all unencrypted data resident on the device -- don't need to be supported by reasonable suspicion. According to the court, this is fine because the government simply doesn't have enough time or manpower to trawl through every phone that happens to cross a border.

Basic border searches also require an officer to manually traverse the contents of the traveler's electronic device, limiting in practice the quantity of information available during a basic search. The CBP Policy only allows searches of data resident on the device. CBP Policy at 4. And a basic border search does not allow government officials to view deleted or encrypted files. We thus agree with the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.

And the First Circuit rejects the Ninth Circuit's narrowing of the scope of border device searches.

We cannot agree with its narrow view of the border search exception because Cano fails to appreciate the full range of justifications for the border search exception beyond the prevention of contraband itself entering the country. Advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.

The border search business will continue as usual in the First Circuit. And the court unhelpfully suggests plaintiffs stop bothering the courts with their constitutional concerns and ask Congress to change to legal contours of device searches. While legislative efforts have been made to create a warrant requirement, it was the US Supreme Court that created the first warrant requirement for phone searches. Congress had nothing to do with one the biggest Fourth Amendment alterations and it's unlikely many current legislators are ready or willing to alter the terms of constitutional engagement at our nation's borders. This isn't even a punt by the First Circuit. It's a shrug that says it's unwilling to honestly consider the privacy impact of hundreds of thousands of suspicionless device searches and would rather have someone else tell it how to think.

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Filed Under: 1st circuit, 4th amendment, border search exception, device searches


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  • icon
    That One Guy (profile), 16 Feb 2021 @ 11:00am

    Strange, I don't recall that exception in the fourth amendment

    While legislative efforts have been made to create a warrant requirement, it was the US Supreme Court that created the first warrant requirement for phone searches

    Second actually, the first would be the US Constitution, a document and set of limits on government activity that apparently numerous courts and judges consider entirely optional and to be thrown out the window the second following those restrictions would at all hamper the government's desire to do something.

    A warrant requirement -- and the delays it would incur -- would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.

    'Following the rules is too hard' has never been a valid excuse, unless it seems you work for the government. The entire point of the constitutions is to place limits on government actions, that's a feature, not a bug.

    Whether through cowardice or outright corruption many judges seem to treat the constitutional limitations on the government as mere 'suggestions', and thus show that they are grossly unfit for the job and need to be replaced by those that actually do consider the constitution a document worth paying attention to.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2021 @ 1:02pm

      Re: Strange, I don't recall that exception in the fourth amendme

      There's too many criminals to give them all a trial, so we're just going to skip that and start handing out sentences.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2021 @ 11:12am

    this is fine because the government simply doesn't have enough time or manpower to trawl through every phone that happens to cross a border.

    But somehow they find time and manpower when known human rights lawyer, immigrants rights lawyers, and investigative journalists cross a border.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 16 Feb 2021 @ 11:14am

    Most stupid argument ever

    A warrant requirement -- and the delays it would incur -- would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.

    What the eff does the First Circuit even think the Bill of Rights is for? Its sole purpose is to hamstring the government. Once you consider hamstringing the government a concern overriding the rights of citizens, the whole Bill of Rights goes out the door.

    A right does not stop being a right when it is inconvenient for the government. When it does, the result is not called a republic but a fascist regime. Which is not a misapplication of terms: fascism is defined as the doctrine that government concerns trump those of the citizens.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2021 @ 11:41am

      Re: Most stupid argument ever

      Soon to be: A warrant requirement -- and the delays it would incur -- would hamstring the agencies' efforts to prevent crime

      Why should the borders have all the fun?

      reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 16 Feb 2021 @ 11:28am

    Yet another reason to use a burner phone when going outside the US....or coming to the US.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2021 @ 12:04pm

      Re:

      Yep. Buy a clean and unlocked phone before you leave, don't use it for anything before traveling, get a prepaid sim card once you arrive, use a VPN for all your internet usage, backup any data you need to a server somewhere, wipe / destroy / throw away the phone before you come back. If you are using a laptop, start with a clean device and use a VPN to a remote terminal for all usage then reset to factory config and perform secure wipe of unused space before coming back.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 16 Feb 2021 @ 12:18pm

        Re: Re:

        Yep. Buy a clean and unlocked phone before you leave, don't use it for anything before traveling, get a prepaid sim card once you arrive, use a VPN for all your internet usage, backup any data you need to a server somewhere, wipe / destroy / throw away the phone before you come back. If you are using a laptop, start with a clean device and use a VPN to a remote terminal for all usage then reset to factory config and perform secure wipe of unused space before coming back.

        Alternatively, be brave and do nothing like that. Could get you locked up, though.

        Oh the land of the free, or the home of the brave. Choose one.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Feb 2021 @ 3:58pm

          Re: Re: Re:

          But then our resident device advice pontificator(s) would have nothing to do...

          reply to this | link to this | view in chronology ]

          • icon
            sumgai (profile), 16 Feb 2021 @ 6:21pm

            Re: Re: Re: Re:

            would have nothing to do...

            Trust me, I've got plenty to do. My Honey-do list is so long that when she passes on, her daughter will inherit the thing, and I'll be still be working off that list until it's my turn to meet my maker.

            And for the record..... I don't hand out advice, I "give you the benefit of some of my life's experiences". There is a difference, subtle though it may seem. ;)

            reply to this | link to this | view in chronology ]

        • identicon
          Tin-Foil-Hat, 17 Feb 2021 @ 9:33pm

          Re: Re: Re:

          Or neither

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2021 @ 11:50am

    Must be great to be able to just declare the constitution to not apply whenever you feel like it.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 16 Feb 2021 @ 11:55am

      Re:

      Helped along I'm sure by the knowledge that they(the judges in question) will never have to worry about having their stuff rifled through on a whim. It's easy to brush aside if not outright dismiss violations of rights when you know that you'll never have to deal with the same treatment or disdain for your rights.

      reply to this | link to this | view in chronology ]

  • icon
    Caleb (profile), 16 Feb 2021 @ 12:16pm

    Isn't all cellphone data encrypted now by default?

    And a basic border search does not allow government officials to view deleted or encrypted files.

    So unless I willingly unlock my phone (didn't a court recently rule that you cannot be forced to unlock your phone) all data on the phone is encrypted so no data on the phone is viable for a "basic border search".

    Isn't that how logic works?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 17 Feb 2021 @ 2:02am

      Unlocking your phone

      Apparently, to block law enforcement, school administrators, industrial spies and hackers from using the available cracking software to unlock your phone, you have to turn off the phone before surrendering it.

      Incidentally, not returning your electronic device has become routine by law enforcement. You may have to fight the precinct in court to get your phone back.

      Curiously, ICE is defying orders from the White House, and Biden doesn't appear to be too concerned about it or about atrocities that continue to be committed by ICE.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2021 @ 1:26pm

    Basic border searches also require an officer to manually traverse the contents of the traveler's electronic device, limiting in practice the quantity of information available during a basic search.

    ... which is to say, if they had a "phone vacuum" that you just plug the phone into and it lights a red light if there is contraband on the phone, the court would be perfectly OK with that being a thing everyone would have to submit to.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2021 @ 1:39pm

    I'd like to point out here that the courts only have authority under the constitution, and not over it. If there First circuit is claiming they have no need to comply with the constitution, they are also claiming to lack any authority. Which means they are claiming to be terrorists &| mob rule, or what ever form of illegitimate government you like.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 16 Feb 2021 @ 1:47pm

      Re:

      Which means they are claiming to be terrorists &| mob rule, or what ever form of illegitimate government you like.

      Didn't you get the memo? There's nothing wrong with that. At least nothing convictable by a two-thirds majority of the Senate.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2021 @ 4:01pm

    I still want to know what kind of contraband can be stored on a phone which can't be found (and probably at scale) elsewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 17 Feb 2021 @ 9:36pm

    Do they get to detain you?

    If you don't unlock your phone do they get to detain you indefinitely?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 17 Feb 2021 @ 10:15pm

      Detention for refusing to unlock

      While I can't speak for all law enforcement (and no law enforcement outside the US), most police departments have a maximum length of time you can be detained (around 72 hours) before they either have to charge you with a crime or let you go.

      In the case of a phone they can't open, they can keep the phone and make it hell getting it back. If it's not shut down, they should easily be able to crack it with handy cracking software.

      Some departments will hold you indefinitely whether or not there's a law. ICE routinely puts American citizens into situations where they cannot prove their citizenship, only to deport them right into war zones or prisons in other nations, so they might threaten to make your life difficult if you don't cooperate and unlock a phone. Essentially, if someone in ICE wants to ruin your life, you're screwed.

      Then there are some circumstances in which a court may require the unlocking of a phone or block of encrypted data (I believe this is called the foregone conclusion exception) where they allegedly already know what the data is. I personally don't get it, as IANAL but if the nature of the data is known well enough to prosecute, then the court doesn't need the data to be unlocked. But they might want it anyway, or for some reason need to see the data to prosecute. It sounds to me like legal shenanigans but again, IANAL.

      In these rare cases, someone can be held for contempt of court, and held indefinitely until they unlock the data. Since the longest detention for contempt was fourteen years, that's the upper limit so far. More precisely, it's until a lawyer convinces a judge that you're not motivated to unlock your phone by promising release from jail when you do. It may take years.

      This is why you want to keep your secrets in a data block with two compartments, one filled with gothy furry porn for the court to enjoy. That way you can follow their orders, open it and let the prosecution deal with disappointment.

      reply to this | link to this | view in chronology ]


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