https://liveandletsfly.com/cbp-fourth-amendment-airport/

So this citizen flew into Bush Intercontinental from Nicaragua and CBP flagged him, demanding he give over his passwords for phone and laptop.

He said it's a 4th Amendment violation. They said there essentially is no 4th Amendment at the border. He stood his ground for about 4 hours before giving in and they searched all his stuff. He is suing.

It'll work its way through the court system but for now looks like you pretty much have to hand over your digital stuff when crossing back into the homeland.

I give it 5 years to be heard by SCOTUS.

And if you're that worried about it leave your phone at home and buy a burner overseas.

jacketman03 said:

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techno-ag said:

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https://liveandletsfly.com/cbp-fourth-amendment-airport/

So this citizen flew into Bush Intercontinental from Nicaragua and BP flagged him, demanding he give over his passwords for phone and laptop.

He said it's a 4th Amendment violation. They said there essentially is no 4th Amendment at the border. He stood his ground for about 4 hours before giving in and they searched all his stuff. He is suing.

It'll work its way through the court system but for now looks like you pretty much have to hand over your digital stuff when crossing back into the homeland.

I give it 5 years to be heard by SCOTUS.

And if you're that worried about it leave your phone at home and buy a burner overseas.

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That's not how constitutional rights work, buddy.

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Agreed. But it is what it is unless SCOTUS rules otherwise.

techno-ag said:

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jacketman03 said:

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techno-ag said:

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https://liveandletsfly.com/cbp-fourth-amendment-airport/

So this citizen flew into Bush Intercontinental from Nicaragua and BP flagged him, demanding he give over his passwords for phone and laptop.

He said it's a 4th Amendment violation. They said there essentially is no 4th Amendment at the border. He stood his ground for about 4 hours before giving in and they searched all his stuff. He is suing.

It'll work its way through the court system but for now looks like you pretty much have to hand over your digital stuff when crossing back into the homeland.

I give it 5 years to be heard by SCOTUS.

And if you're that worried about it leave your phone at home and buy a burner overseas.

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That's not how constitutional rights work, buddy.

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Agreed. But it is what is unless SCOTUS rules otherwise.

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Man, I was really hoping for an "I'm not your buddy, pal" there.

But yeah, and SCOTUS needs to clarify that we don't lose our constitutional rights just because we're coming back home.

SCOTUS has ruled CBP has broad search rights at the border. Electronic stuff is in dispute.

If, as a condition of saving your hostage wife from narco traffickers, you had to go through the border with secret stuff on your phone...turn off the biometric crap... fingerprints, eyes, face recognition. CBP is wild west enough than they might use this stuff against your will.

Rely on a good password, and hope that they can't break it.

As in the OP, there is still 4th amendment protections (with exceptions) but CBP will intentionally lie.

This brings up a good point. CBP does have an overriding interest in searching everything coming into the country, which has long been recognized. Searches at the border are considered reasonable. However, phone and laptop contents can't possibly have any kind of physical contraband that CBP is inspecting for. How can it be considered reasonable given the context?

itsyourboypookie said:

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Anyone that's ever been within 75 miles of Mexico knows this. They do random searches at the checkpoints. I've been randomly searched 3 times.

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Oh well then. They've always done it this way so Constitution does not apply. I'm sure OP was just not aware of the "it's always been done this way" clause.

Over_ed said:

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SCOTUS has ruled CBP has broad search rights at the border. Electronic stuff is in dispute.

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Thus the lawsuit.

ABATTBQ11 said:

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This brings up a good point. CBP does have an overriding interest in searching everything coming into the country, which has long been recognized. Searches at the border are considered reasonable. However, phone and laptop contents can't possibly have any kind of physical contraband that CBP is inspecting for. How can it be considered reasonable given the context?

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Thus the lawsuit.

not certain of the appellate history after this Fifth Circuit opinion in 2023 from a 2021 seizure (attorney suing; privileged information discussion) but this guy may face an uphill battle at least in the Fifth

22-10772-CV0.pdf

"Turning to the merits, we do not agree that Malik is entitled to expungement. The Fourth Amendment protects each individual's "right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "Although the Fourth Amendment applies at the border, its protections are severely diminished."That is because "an individual's privacy expectations are lessened by the tradition of inspection procedures at the border."Those "inspections" fall into two categories: routine and nonroutine. Routine searches do not require "individualized suspicion or probable cause." On the other hand, "'nonroutine' searches need only reasonable suspicion, not the higher threshold of probable cause." DHS "flagged" Malik because his surname appeared in connection with an investigation involving an international arms dealer. That apparent connection gave DHS reasonable suspicion for the search, even if hindsight suggests that any actual connection was illusory. On appeal, Malik argues that DHS's search and seizure of his phone was unlawful in three ways. We disagree on each front.

"Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." DHS found the cell phone on Malik's "person" because it was part of the "baggage" that he was carrying with him into the United States. The search easily falls within the "plenary authority" that Congress has granted to the Executive branch. Malik's statutory argument therefore fails."

Over_ed said:

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SCOTUS has ruled CBP has broad search rights at the border. Electronic stuff is in dispute.

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Ok, thats a better answer than "that's just how it's done"

fredfredunderscorefred said:

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not certain of the appellate history after this Fifth Circuit opinion in 2023 from a 2021 seizure (attorney suing; privileged information discussion) but this guy may face an uphill battle at least in the Fifth

22-10772-CV0.pdf

"Turning to the merits, we do not agree that Malik is entitled to expungement. The Fourth Amendment protects each individual's "right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "Although the Fourth Amendment applies at the border, its protections are severely diminished."That is because "an individual's privacy expectations are lessened by the tradition of inspection procedures at the border."Those "inspections" fall into two categories: routine and nonroutine. Routine searches do not require "individualized suspicion or probable cause." On the other hand, "'nonroutine' searches need only reasonable suspicion, not the higher threshold of probable cause." DHS "flagged" Malik because his surname appeared in connection with an investigation involving an international arms dealer. That apparent connection gave DHS reasonable suspicion for the search, even if hindsight suggests that any actual connection was illusory. On appeal, Malik argues that DHS's search and seizure of his phone was unlawful in three ways. We disagree on each front.

"Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." DHS found the cell phone on Malik's "person" because it was part of the "baggage" that he was carrying with him into the United States. The search easily falls within the "plenary authority" that Congress has granted to the Executive branch. Malik's statutory argument therefore fails."

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OK. I may have to adjust SCOTUS expectations. They love competing appellate rulings. Oh well. Maybe something else will expedite things.

techno-ag said:

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fredfredunderscorefred said:

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not certain of the appellate history after this Fifth Circuit opinion in 2023 from a 2021 seizure (attorney suing; privileged information discussion) but this guy may face an uphill battle at least in the Fifth

22-10772-CV0.pdf

"Turning to the merits, we do not agree that Malik is entitled to expungement. The Fourth Amendment protects each individual's "right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "Although the Fourth Amendment applies at the border, its protections are severely diminished."That is because "an individual's privacy expectations are lessened by the tradition of inspection procedures at the border."Those "inspections" fall into two categories: routine and nonroutine. Routine searches do not require "individualized suspicion or probable cause." On the other hand, "'nonroutine' searches need only reasonable suspicion, not the higher threshold of probable cause." DHS "flagged" Malik because his surname appeared in connection with an investigation involving an international arms dealer. That apparent connection gave DHS reasonable suspicion for the search, even if hindsight suggests that any actual connection was illusory. On appeal, Malik argues that DHS's search and seizure of his phone was unlawful in three ways. We disagree on each front.

"Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." DHS found the cell phone on Malik's "person" because it was part of the "baggage" that he was carrying with him into the United States. The search easily falls within the "plenary authority" that Congress has granted to the Executive branch. Malik's statutory argument therefore fails."

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OK. I may have to adjust SCOTUS expectations. They love competing appellate rulings. Oh well. Maybe something else will expedite things.

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a Boston lawyer recently sued on this, though I can't easily find what happened after October. Boston immigration attorney fights feds over confiscated phone Since the judiciary is openly-hostile to anything Trump-related, there is likely going to be conflicting rulings (I tend to agree that its BS they can search the phone based on lower standards, and I tend to loathe the fact that the govt can openly LIE to people they are interrogating etc). I think I read one time it suggested to ask for an ombudsman/supervisor (at least if US citizen) if ever asked to provide passwords etc.

the FAQs say a little more:

Border Search of Electronic Devices at Ports of Entry | U.S. Customs and Border Protection

If a traveler being admitted as a U.S. citizen does not present their device in a condition that allows for examination, the U.S. citizen traveler will not be denied entry into the United States based on CBP's inability to complete an inspection of their device. However, as noted above, their device may be subject to exclusion, detention, or other appropriate action or disposition.

techno-ag said:

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Over_ed said:

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SCOTUS has ruled CBP has broad search rights at the border. Electronic stuff is in dispute.

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Thus the lawsuit.

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Exactly

fredfredunderscorefred said:

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techno-ag said:

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fredfredunderscorefred said:

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not certain of the appellate history after this Fifth Circuit opinion in 2023 from a 2021 seizure (attorney suing; privileged information discussion) but this guy may face an uphill battle at least in the Fifth

22-10772-CV0.pdf

"Turning to the merits, we do not agree that Malik is entitled to expungement. The Fourth Amendment protects each individual's "right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "Although the Fourth Amendment applies at the border, its protections are severely diminished."That is because "an individual's privacy expectations are lessened by the tradition of inspection procedures at the border."Those "inspections" fall into two categories: routine and nonroutine. Routine searches do not require "individualized suspicion or probable cause." On the other hand, "'nonroutine' searches need only reasonable suspicion, not the higher threshold of probable cause." DHS "flagged" Malik because his surname appeared in connection with an investigation involving an international arms dealer. That apparent connection gave DHS reasonable suspicion for the search, even if hindsight suggests that any actual connection was illusory. On appeal, Malik argues that DHS's search and seizure of his phone was unlawful in three ways. We disagree on each front.

"Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." DHS found the cell phone on Malik's "person" because it was part of the "baggage" that he was carrying with him into the United States. The search easily falls within the "plenary authority" that Congress has granted to the Executive branch. Malik's statutory argument therefore fails."

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OK. I may have to adjust SCOTUS expectations. They love competing appellate rulings. Oh well. Maybe something else will expedite things.

---

a Boston lawyer recently sued on this, though I can't easily find what happened after October. Boston immigration attorney fights feds over confiscated phone Since the judiciary is openly-hostile to anything Trump-related, there is likely going to be conflicting rulings (I tend to agree that its BS they can search the phone based on lower standards, and I tend to loathe the fact that the govt can openly LIE to people they are interrogating etc). I think I read one time it suggested to ask for an ombudsman/supervisor (at least if US citizen) if ever asked to provide passwords etc.

the FAQs say a little more:

Border Search of Electronic Devices at Ports of Entry | U.S. Customs and Border Protection

If a traveler being admitted as a U.S. citizen does not present their device in a condition that allows for examination, the U.S. citizen traveler will not be denied entry into the United States based on CBP's inability to complete an inspection of their device. However, as noted above, their device may be subject to exclusion, detention, or other appropriate action or disposition.

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That last bit is interesting, as they're turning a 4th amendment issue where the government is given broad deference into a 5th amendment takings issue, which seems to be the worse of the issues for the government to me.

Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

TA-OP said:

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Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

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I'm a big secure-border and law enforcement kind of guy, but even this is too much for me. A US citizen has US constitutional rights with US authorities no matter where they are in the world.

Searching your car or person? That's one thing to check for drugs or weapons. But making you give up your digital ID's? A step too far.

ABATTBQ11 said:

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This brings up a good point. CBP does have an overriding interest in searching everything coming into the country, which has long been recognized. Searches at the border are considered reasonable. However, phone and laptop contents can't possibly have any kind of physical contraband that CBP is inspecting for. How can it be considered reasonable given the context?

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They will basically hold you indefinitely and then sieze the devices if/when they cut you loose. They claim they look for child sexual abuse and evidence of other illegal activities.

I have had them go through my phone a couple of times. Much more of a hassle at airports, land border they care much more about physical items. Check points are a little of a gray area when you are a citizen, I cross those all the time and have never had a phone or laptop jacked with.

Now I have been a victim to this deal, it has been confirmed recently but along with several friends and acquaintances we have long suspected this type of surveillance. It is a whole other topic, and one that concerns me more. https://www-newsnationnow-com.cdn.ampproject.org/v/s/www.newsnationnow.com/us-news/immigration/border-patrol-hidden-plate-readers-tracking-drivers/amp/?amp_gsa=1&_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=17658546862022&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fwww.newsnationnow.com%2Fus-news%2Fimmigration%2Fborder-patrol-hidden-plate-readers-tracking-drivers%2F

The SC has repeatedly made judgements that 4A rights are limited at a POI though not sure if a person can be ordered to disclose personal passwords. I'm guessing it is doubtful but I'm not a lawyer.

TA-OP said:

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Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

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The 100 mile issue relates to Border Patrol. It does not pertain to Customs and Immigration. C&I have jurisdiction at a POI only which is where the 4A debate is an issue.

BTKAG97 said:

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TA-OP said:

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Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

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The 100 mile issue relates to Border Patrol. It does not pertain to Customs and Immigration. C&I have jurisdiction at a POI only which is where the 4A debate is an issue.

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OP stated BP and someone else used CBP and I wrongly assumed they were the same.

It only took him four hours until he gave up his right to protection from an unreasonable search? F' that.

The Feds don't give a damn what the Constitution says.

TA-OP said:

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BTKAG97 said:

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TA-OP said:

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Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

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The 100 mile issue relates to Border Patrol. It does not pertain to Customs and Immigration. C&I have jurisdiction at a POI only which is where the 4A debate is an issue.

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OP stated BP and someone else used CBP and I wrongly assumed they were the same.

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CBP consists of Customs, Immigration, and Border Patrol. They are 3 different entities with 3 different purposes but they will assist each other. The BP page on the CBP website goes over the 100 mile search legality. The garbage you will get via a Google Search is misinformation from the ACLU.

https://www.help.cbp.gov/s/article/Article-1253?language=en_US

BTKAG97 said:

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TA-OP said:

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BTKAG97 said:

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TA-OP said:

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Roughly 2/3rds of the US population live with-in 100 miles of a border, the legal jurisdiction of CBP. That's an awful lot of Americans that don't enjoy 4th Amendment protection given this agent's take.

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The 100 mile issue relates to Border Patrol. It does not pertain to Customs and Immigration. C&I have jurisdiction at a POI only which is where the 4A debate is an issue.

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OP stated BP and someone else used CBP and I wrongly assumed they were the same.

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CBP consists of Customs, Immigration, and Border Patrol. They are 3 different entities with 3 different purposes but they will assist each other. The BP page on the CBP website goes over the 100 mile search legality. The garbage you will get via a Google Search is misinformation from the ACLU.

https://www.help.cbp.gov/s/article/Article-1253?language=en_US

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Please, do not assume anything. I didn't Google anything. I made an honest mistake confusing OP's BP and CBP and then owned up. I would like to think that's enough.

My post wasn't direct to you specifically.

Don't do anything nefarious on your phone and you'll be fine. Non issue.

Thanks for putting up a link to that USSC case. This has long been the law. When entering the US one can be searched without probable cause. The law has evolved since cell phones have become a thing. CBP must have particularized reasonable suspicion to get into and search electronic devices.

If a person is on a Terror Watch List, or their name is Bin Laden, their electronic devices will be searched. If those people will not give up their passwords then CBP can seize that device and get into it by whatever means necessary.

This is not new, and it is intrusive, but it is also necessary.

Waiting on a Natty said:

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Thanks for putting up a link to that USSC case. This has long been the law. When entering the US one can be searched without probable cause. The law has evolved since cell phones have become a thing. CBP must have particularized reasonable suspicion to get into and search electronic devices.

If a person is on a Terror Watch List, or their name is Bin Laden, their electronic devices will be searched. If those people will not give up their passwords then CBP can seize that device and get into it by whatever means necessary.

This is not new, and it is intrusive, but it is also necessary.

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So we have Constitution free zones?

Quote:

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If, as a condition of saving your hostage wife from narco traffickers, you had to go through the border with secret stuff on your phone...turn off the biometric crap... fingerprints, eyes, face recognition.

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Turn off your phone when stopped. When you restart it, you MUST enter a passcode to unlock the phone. Biometric doesn't work.