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JoeJustJoe
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BP agents can't search your phone without good reason
The border agents searches of personal cell phones really increased since 2016.
Thank You ACLU for fighting against these suspicionless forensic searches of cell phones at the border.
________________________________________
Border agents can't search your phone without good reason, US court rules
Federal appeals court says there must be some reason to suspect a particular traveler has committed a crime
US border authorities cannot search the cellphones of travelers without having some reason to believe a particular traveler has committed a crime, a
federal appeals court ruled on Wednesday.
The 4th US circuit court of appeals in Richmond ruled in the case of a Turkish national who was arrested at Dulles international airport after agents
found firearm parts in his luggage.
A lower court judge refused to suppress evidence obtained from a warrantless search of Hamza Kolsuz’s phone.
The 4th circuit upheld that ruling and found that a forensic search of electronic devices requires “individualized suspicion” of wrongdoing. The
court said agents had that suspicion because Kolsuz had made two previous attempts to smuggle weapons parts out of the US.
The fourth amendment requires law enforcement officers to obtain warrants based on probable cause. But courts have made an exception for searches at
airports and US ports of entry, finding that the government can conduct warrantless border searches to protect national security, prevent
transnational crime and enforce immigration and customs laws.
The American Civil Liberties Union (ACLU) had urged the 4th circuit to find that the government should be required to obtain a warrant or at least a
determination of probable cause that evidence of a crime is contained on electronic devices before agents can search them at airports.
read the rest here:
https://www.theguardian.com/world/2018/may/09/us-border-cell...
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DaliDali
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firearm parts in the luggage
Busted twice before with firearm parts.
Well hello..........search his damn ear canals for all I care.
Outrageous ruling.
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BajaNomad
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Thread Moved
5-10-2018 at 08:02 PM |
Paco Facullo
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Completely irrelevant as the NSA already knows everything that is on your phone .....
Welcome to the "New world order"
Since I've given up all hope, I feel much better
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wilderone
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That court UPHELD the lower court's finding re reasonable suspicion for border searches. The ACLU filed the suit, persevered through the appeal, et.,
yet the underlying principles did not change. Too, this was only a Circuit Court ruling. The U S Supreme Court (supreme law of the land) has made
previous rulings yet to be overturned. The standard is "reasonable suspicion" balanced against the known Fourth Amendment law at the time. So until
the reigning cases dictating the law as applied in BORDER search cases are distinguished or overturned, they still prevail. Here are some of those
cases:
The Supreme Court has thus allowed warrantless searches of mail and gas tanks entering the United States. United States v. Ramsey, 431 U.S. 606,
624–25 (1977) (mail); Flores-Montano, 541 U.S. at 155–56 (gas tanks). It permitted even the 16-hour warrantless detention of a woman at the border
whom customs officials reasonably suspected to be smuggling narcotics in her alimentary canal. Montoya de Hernandez, 473 U.S. at 535, 541, 544. We
have held that officials at the border may cut open the lining of suitcases without any suspicion, United States v. Chaplinski, 579 F.2d 373, 374 (5th
Cir. 1978), and that with reasonable suspicion they may strip search suspected drug smugglers and drill into the body of a trailer, United States v.
Afanador, 567 F.2d 1325, 1329 (5th Cir. 1978) (strip search); United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling into trailer). These
cases establish that routine border searches may be conducted without any suspicion. See id. at 367. So-called “nonroutine” searches need only
reasonable suspicion, not the higher threshold of probable cause. Id.; United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002); United States v.
Saboonchi, 48 F. Supp. 3d 815, 819 (D. Md. 2014) (“Defendant has not cited to a single case holding that anything more than reasonable suspicion was
required to perform a search of even the most invasive kind at the international border, and I have found none.”).
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bajatrailrider
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This law that law not important. They can hold you at border for hours make up anything. More easy here check my phone your on your way.
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David K
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I often wonder if there are some Americans who don't realize they are in another country when they drive into Baja?
The border is the only place we can keep bad stuff or bad people from entering the United States... so it is not unreasonable that you may undergo
extra questions or searches. For the number of cars and people that cross the border, they do an amazing job.
Sure, I have had stupid border guards ask or say really dumb things and the wait to get back into the U.S. is the only ugly part of a Baja vacation...
but that is simply the 'price' of going to Baja... and it is still worth it to me. I suppose if you are into doing illegal activities, you may not
want anything searched? The solution is to not go to Mexico or don't break the law. For them to take the time to look at your phone would mean some
pretty bright red lights went off in their head or on their computer screen.
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JoeJustJoe
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What I think most of us want is to be treated fairly at the border, and many of us don't want jackbooted thugs( CBP agents) with a chip on their
shoulder to be profiling us by race, ethnicity, or because they have a whim, and now they want to search our computers, and cells phones, both
manually by hand or with their intrusive forensic tools, which is about as equivalent to an anal cavity search except forensic searches are doing
this cyber cavity search on your cell phones!
Now I could understand the border agents, using these tools if they have probable cause, or even reasonable suspicion, but the border agents are doing
these intrusive "suspicionless" cell phone searches just because they feel like it, or because we suspect they are engaged in profiling.
BTW, the ruling by the 4th circuit, only concerns intrusive " forensic" searches, and sadly the Border Agents, can still check your cell phone
manually, for no reason at all, although the ACLU is working to also stop suspicionless manual searches of your cell phone at the border.
Regarding the case of the Turkish national which this appeal case is based on.
The CPB agents first manually checked his iPhone, and then used a forensic tools that gathered up a 896 page report about the Turkish National's
iPhone that included "personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs,
along with a history of Kolsuz’s physical location down to precise GPS coordinates."
Now Kolsuz, the Turkish National, will still do jail time based on existing law, and because they had reasonable suspicion he was doing something
illegal.
The question to ask yourself is, do you really want to border agents using forensic tools on your cell phones so they could get a 900 page report on
you based on nothing more than a whim?
Hell, I don't even want them to manually check my iPhone.
[Edited on 5-11-2018 by JoeJustJoe]
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Alm
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Quote: Originally posted by David K  |
The border is the only place we can keep bad stuff or bad people from entering the United States... so it is not unreasonable that you may undergo
extra questions or searches. |
Yep. They have a lot of leeway when applying the "reasonable suspicion" test. Crimes committed in the past - like those firearms parts in the luggage
previously, or frequent trips to countries known for terrorist ties - half a dozen of Middle East stamps in your passport would suffice. Or pretty
much anything else.
Here in Canada people "tried" to fight it, but there is a ruling by Supreme Court saying that "at the border people should have lower expectations of
privacy" - in other words they can search you all they want. Relax and let it be.
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David K
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True that Alm!
Oh, and JoeJstJoe ... the officers that I have come across at the border have never seemed to care about what I look like on the outside, so I don't
know why you mention race/ ethnic profiling as a problem. I have been questioned by all kinds of American officials at the border who were Asian,
Latino, Black, and all kinds of women, as well as the occasional white guy!
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chuckie
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JJJ is full of horse hockey as usual....They will do, and should, what they think is needed....
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Alm
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Racial profiling they don't do.
Citizenship, country of origin and country of habitual residence they do consider, along with tons of other factors.
This is a dumb job but it is not easy and occasionally can be dangerous. They follow manuals. Questions are cursory when there is nothing unusual
about you.
When he hears or sees something that is not "average", not in the manual, or something he doesn't understand (there are tons of things that they don't
know about, it's a constant learning for them) - this immediately triggers a new and different set of questions and checks aimed to elicit more info.
This world is not safe anymore, BP activity is a result of this.
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JoeJustJoe
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| Quote: Originally posted by Alm |
Yep. They have a lot of leeway when applying the "reasonable suspicion" test. Crimes committed in the past - like those firearms parts in the luggage
previously, or frequent trips to countries known for terrorist ties - half a dozen of Middle East stamps in your passport would suffice. Or pretty
much anything else.
Here in Canada people "tried" to fight it, but there is a ruling by Supreme Court saying that "at the border people should have lower expectations of
privacy" - in other words they can search you all they want. Relax and let it be. |
Currently the border agents at the border do not apply the "reasonable suspicion test," when they stop you and ask you to open your car's truck or
check your cell phone manually or forensically.
What they do is a suspicionless check on everybody, randomly, or just some people. They don't need a reason to make these checks at the border, and
that has been the law for a long time at the border.
However, it's a new century and it's 2018, and so many of us who care about our personal privacy especially when it comes to our computers and smart
phones, balk at US customs making suspicionless checks on our electronic devices especially our smart phones that hold so much private information,
photos, and endless personal details about us.
I'm amazed at David K, Chuckie and others who quickly want to give away or throwaway our constitutional rights to privacy and against unreasonable
searches and seizures because they trust the border agents.
Thank God, a few years ago, a woman took the thugs/ CBP to court over an unwarranted body cavity search, and then they took her to a hospital for even
a more intrusive search!
That woman won a half million dollar lawsuit, and now thanks to her, the border agents now at least need a reasonable suspicion to do unwarranted body
cavity searches on us at the border.
If David K, and Chuckie, had it their way, they would probably allow border agents to once again make random body cavity searches on anybody
crossing the border back into the US, because they always trust those in the US with a badge.
I think at the very least the border agents should have at least reasonable suspicion to make manual or forensic searches on our smart phones at the
border.
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mtgoat666
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| Quote: Originally posted by David K | True that Alm!
Oh, and JoeJstJoe ... the officers that I have come across at the border have never seemed to care about what I look like on the outside, so I don't
know why you mention race/ ethnic profiling as a problem. I have been questioned by all kinds of American officials at the border who were Asian,
Latino, Black, and all kinds of women, as well as the occasional white guy! |
Well, you are white,... you are unable to see bias, perhaps reflecting your own bias, eh?
Woke!
“...ask not what your country can do for you – ask what you can do for your country.” “My fellow citizens of the world: ask not what America
will do for you, but what together we can do for the freedom of man.”
Prefered gender pronoun: the royal we
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wilderone
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"I think at the very least the border agents should have at least reasonable suspicion to make manual or forensic searches on our smart phones at the
border."
Read the whole decision - makes routine, non-routine; reasonable suspicion, probable cause; border exception -- very clear. A manual cell phone
check is routine. That's a fact - accept it.
I don't think you appreciate the magnitude and types of international crimes that transpire at our borders. Yes, it is a new century and it is 2018.
All kinds of new ways to commit crimes - so all facets of society shift with the times. I guess the whiz-bang of techno gadgets are a double-edged
sword - accept that too. Hence, new laws, new case law, new analysis. Good for you that you're trying to keep up on nuances of the law - but you
rewind the clock. If you have nothing to hide, then you don't have to worry about your constitutional rights being infringed upon. Personally, I
don't want sex and child trafficking occurring cross-border; child porn and exploitation; exporting of firearms or parts of firearms to enemy
factions; importing of drugs dangerous to society and younger generation; illegal immigration; foreign conspirators taking flying lessons in the USA
and then leaving to plan to blow up New York, and so on. And if routine border searches can stop those crimes or assist in apprehending those
criminals, then I support that. Have you actually ever been asked by a border agent to search your cell phone?
https://www.aclu.org/sites/default/files/field_document/kols...
the forensic examination of Kolsuzs phone must be considered a nonroutine border search, requiring some measure of individualized suspicion. What
precisely that standard should be whether reasonable suspicion is enough, as the district court concluded ..
government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.
Almeida-Sanchez v. United States, 413 U.S. 266, 27273 (1973); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).
While suspicionless border searches generally are reasonable simply by virtue of the fact that they occur at the border, Ramsey, 431 U.S. at 616 .
As a nonroutine border search, the court went on to hold, the forensic analysis of Kolsuzs phone required particularized suspicion, in the form of
the familiar reasonable suspicion standard. The court rejected the more demanding requirement of a warrant based on probable cause, noting that no
reported case has held a border search to that standard.
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SFandH
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| Quote: Originally posted by wilderone |
If you have nothing to hide, then you don't have to worry about your constitutional rights being infringed upon.
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That's a common argument used to not worry about government surveillance.
But, it is certainly debatable. My favorite example of this attitude causing problems occurred in the early 20th century. Back then it was standard
procedure for residents of western European countries to register their name, address, and other info with "city hall". One piece of data recorded was
the individual's religion. What's the problem with that? Well, when the N-zis invaded western Europe and within Germany itself, when they decided to
round up the Jews all they needed to do was go to city hall to find out where they lived. I know, it's an extreme example, but so were the results of
simply saying you were a Jew when there was no reason to hide the fact.
If you don't like my example, OK. I don't want to debate whether or not it is a good one. I'm just using it to make a point. You may not think you
have anything to hide today. But will that be true tomorrow even though nothing about you has changed?
Someone said: "Arguing that you don't care about the right to privacy because you have nothing to hide is no different than saying you don't care
about free speech because you have nothing to say."
Also, "reasonable cause" is embedded in our search and seizure laws for a good reason. The concept should not be watered down for any reason.
4th amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated...."
If the police want to know anything about me they don't already know, they should convince a judge there is a reasonable cause and get a search
warrant.
IMHO, of course.
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DaliDali
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| Quote: Originally posted by SFandH | | Quote: Originally posted by wilderone |
If you have nothing to hide, then you don't have to worry about your constitutional rights being infringed upon.
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4th amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated...."
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In the example that the resident anarchist used.....a Turkish man, now a three time loser for attempting to smuggle gun parts, would the classic
example of "probable cause" to dig deeper, including electronic devices and any other means as deemed necessary.
In addition, why would this Turkish man, twice before busted for smuggling, even be allowed to set foot on a plane bound for the USA.
And how did this Turkish man even get passed the security check points with a bag full of gun parts........
[Edited on 5-12-2018 by DaliDali]
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JoeJustJoe
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| Quote: Originally posted by wilderone |
Read the whole decision - makes routine, non-routine; reasonable suspicion, probable cause; border exception -- very clear. A manual cell phone
check is routine. That's a fact - accept it.
I don't think you appreciate the magnitude and types of international crimes that transpire at our borders. Yes, it is a new century and it is 2018.
All kinds of new ways to commit crimes - so all facets of society shift with the times. I guess the whiz-bang of techno gadgets are a double-edged
sword - accept that too. Hence, new laws, new case law, new analysis. Good for you that you're trying to keep up on nuances of the law - but you
rewind the clock. If you have nothing to hide, then you don't have to worry about your constitutional rights being infringed upon. Personally, I
don't want sex and child trafficking occurring cross-border; child porn and exploitation; exporting of firearms or parts of firearms to enemy
factions; importing of drugs dangerous to society and younger generation; illegal immigration; foreign conspirators taking flying lessons in the USA
and then leaving to plan to blow up New York, and so on. And if routine border searches can stop those crimes or assist in apprehending those
criminals, then I support that. Have you actually ever been asked by a border agent to search your cell phone?
https://www.aclu.org/sites/default/files/field_document/kols...
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I read it, and I'm also well aware of the international crimes at occur at the border and elsewhere, but I fail to see how letting the CBP make
suspicionless checks on smart phones on mostly minorities and Muslims will make America safer, especially under this current administration that is
openly racist to people of color and immigrants.
If you really care about making America safer, you should join me and advocate increase gun control, like better background checks in all 50 states,
and you should be for outlawing of assault weapons, and their equivalent.
What's this Wilerone when you write:" Personally, I don't want sex and child trafficking occurring cross-border; child porn and
exploitation"
If you ask me your statement sounds a little sexually repressive. Who cares if someone crosses the border for sex? Yes, child trafficking, child porn
and exploitation is a serious crime, but I think much of this talk is about throwing out the baby with the bathwater. I do read the sensationalized
headlines, and follow some of these new bills, and they make it sound like all "sex workers" are both underage, and sex slaves.
BTW, the ACLU is not only looking out for minorities with dark skin and Muslims, but they are looking out for old white men who make up the majority
of foreign sex tourists. Anecdotally, you just know the border agents, are profiling creepy looking white dudes, and manually looking through their
cameras, and smart phones in hopes of finding illegal images or getting their jollies.
I also disagree with Wilerone when he writes, "A manual cell phone check is routine. That's a fact - accept it."
It may now be pretty routine, just like opening up your car's truck or your suitcase, but I don't have to accept it.
Thanks to the EFF and ACLU, they can proceed with their legal challenge against warrantless searches of travelers at the border. This case extends
"Alasaad v. Nielsen" where the CBP and ICE, stopped mostly Muslim-Americans returning to the US, and demanded to make warrantless searches of their
cell phones, and at times the CBP kept their cell phones for weeks and even months for no reason, other than they could. I doubt any of these 10
people were guilty of anything other than having dark skin, or being Muslim.
If the EFF and ACLU wins, this will be a win for the digital rights of all international travelers.
_____________________________
EFF and ACLU Can Proceed With Legal Challenge Against Warrantless Searches of Travelers' Smartphones, Laptops
https://www.eff.org/press/releases/eff-and-aclu-can-proceed-...
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wilderone
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"If you ask me your statement sounds a little sexually repressive. Who cares if someone crosses the border for sex ...."
Sex trafficking. Maybe you'd sing a different tune if YOU were kidnapped, drugged, raped and made a sex slave. And if you read the Published
Decision, you would know that "routine" in its legal sense applied to border searches (vs. nonroutine) has firm footing in the law. So
non-acceptance, or failure to understand, or failure to adapt, only leaves you with a weak and unsubstantiated position should the time come to defend
yourself.
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MrBillM
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Those of you who have something to HIDE ......................
.................. Should be CAUGHT !
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DaliDali
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The anarchist blew it big time...
Using a Turkish national, a two time loser no less, and pulling off a third arms parts smuggling again for a third, as an example of unwarranted
electronic searches.
Perfectly legit and totally warranted.
Great job CBP
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