Thread

Border agents can search cellphones without a warrant or reasonable suspicion

235 points · 198 comments · mmh0000

mmh0000 · 1789758170 · focus · HN ↗
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].
[1] <a href="https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Border_search_exception" rel="nofollow">https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...
1. esafak · 1789758845 · focus · HN ↗
  <a href="https://en.wikipedia.org/wiki/Border_search_exception" rel="nofollow">https://en.wikipedia.org/wiki/Border_search_exception apparently
2. rtkwe · 1789759923 · focus · HN ↗
  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)?
  1. alistairSH · 1789761089 · focus · HN ↗
    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?
    EGreg · 1789761618 · focus · HN ↗
    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?
    rtkwe · 1789762980 · focus · HN ↗
    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: <a href="https://forumtogether.org/article/explainer-u-s-border-patrol-authorities-and-the-100-mile-border-zone/" rel="nofollow">https://forumtogether.org/article/explainer-u-s-border-patro...
    SoftTalker · 1789761686 · focus · HN ↗
    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.
    CamperBob2 · 1789762113 · focus · HN ↗
    I've heard (but can't back up) that any city with an international airport counts as a 'border' for this purpose.
    SoftTalker · 1789762502 · focus · HN ↗
    Probably. If international flights are arriving, why wouldn't it?
    ndriscoll · 1789762823 · focus · HN ↗
    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.
    tonyarkles · 1789764445 · focus · HN ↗
    > 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. <a href="http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20CANADA%202024.pdf" rel="nofollow">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...
    ndriscoll · 1789765889 · focus · HN ↗
    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.
    rtkwe · 1789777162 · focus · HN ↗
    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.
    <a href="https://www.southernborder.org/100_mile_border_enforcement_zone" rel="nofollow">https://www.southernborder.org/100_mile_border_enforcement_z...
    therockspush · 1789789659 · focus · HN ↗
    If you fly up from countries south of the US you have a tight list of airports you can clear customs at. Wilmington NC is the odd one on the eastern seaboard. Its about 520 miles north of the nearest one. For flights coming up from the Caribbean headed to New England its a lucrative place to be.
    <a href="https://www.ecfr.gov/current/title-19/chapter-I/part-122/subpart-C/section-122.24" rel="nofollow">https://www.ecfr.gov/current/title-19/chapter-I/part-122/sub...
    rtkwe · 1789772967 · focus · HN ↗
    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: <a href="https://www.southernborder.org/100_mile_border_enforcement_zone" rel="nofollow">https://www.southernborder.org/100_mile_border_enforcement_z...
    alistairSH · 1789765998 · focus · HN ↗
    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.
    rtkwe · 1789762536 · focus · HN ↗
    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?
    bshaughn · 1789766410 · focus · HN ↗
    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.
  2. hdgvhicv · 1789762254 · focus · HN ↗
    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.
    bluecalm · 1789762712 · focus · HN ↗
    >>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.
    hdgvhicv · 1789762905 · focus · HN ↗
    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…
    bluecalm · 1789765206 · focus · HN ↗
    Yes but it's still not the job of the judges to do that for them.
    suburban_strike · 1789767190 · focus · HN ↗
    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.
    bluecalm · 1789768047 · focus · HN ↗
    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.
    fn-mote · 1789778638 · focus · HN ↗
    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.
    hdgvhicv · 1789807486 · focus · HN ↗
    Fortunatly there are ways to codify the agreement of the community/nation through the passage of laws and constitutional amendments. Something the US fails to do, as it’s more convenient politically to allow the judges to do it.
    krapp · 1789786322 · focus · HN ↗
    Every time SCOTUS makes a decision they invent new laws or nullify existing laws. Every case they take is a question about whether certain laws "make sense," and that determination is based entirely on learned, but subjective, personal opinion.
    Take for example laws which depended on Roe V. Wade being a Constitutional right no longer existing, and laws created after that right was repealed, because said right didn't make sense to the current Justices (despite being established law for nearly 50 years.) Did the wording of the Constitution change over those intervening years? No. Justices who agreed that Roe was a right died or retired, and were replaced by justices who disagreed, and the Constitution means whatever a majority of Justices say it does. Or the Supreme Court deciding that the 2nd Amendment's definition of "militia" included every American citizen, thus creating a right to personal firearm ownership where none existed before.
    Or more accurately, the Constitution means whatever a majority of Justices decide that the hypothetical ghosts of the Founding Fathers, if summoned into a pentagram, would themselves decide. It just happens to be the case that the original intent of the Founding Fathers always correlates to the political bias of the majority. Crazy how that works.
    And of course the Supreme Court's power of judicial review itself was never granted by the Constitution. They just made it up because it made sense to them.
    onjectic · 1789785427 · focus · HN ↗
    > Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
    This does not appear to be true. “Judicial” is etymologically unrelated to “Judaic” fyi.
    [deleted] · 1789763839 · focus · HN ↗
    [deleted]
    usumgallu · 1789764061 · focus · HN ↗
    [dead]
    RHSeeger · 1789774492 · focus · HN ↗
    <a href="https://www.rightsprotection.org/the-united-states-constitution/constitutional-rights-and-government-limits-subtitle/the-ninth-amendment-the-unwritten-rights-of-the-people" rel="nofollow">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.
    hdgvhicv · 1789807346 · focus · HN ↗
    Not if the government allows that.
    The constitution doesn’t take away your right to build or own a nuclear weapon.
  3. eli · 1789786937 · focus · HN ↗
    I think they should have to pass a new amendment to fix or clarify when the Constitution seems to say something contradictory. Court shouldn't be able to just decide the 4th Amendment means something weaker than what it plainly says.
3. flerchin · 1789760260 · focus · HN ↗
  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.
4. dmoy · 1789763424 · focus · HN ↗
  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.
5. ReptileMan · 1789763855 · focus · HN ↗
  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.
6. ghusto · 1789765448 · focus · HN ↗
  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.
  1. wat10000 · 1789765642 · focus · HN ↗
    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.
  2. Zak · 1789765763 · focus · HN ↗
    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.
    asdfasvea · 1789771192 · focus · HN ↗
    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.
    rexpop · 1789795314 · focus · HN ↗
    I've made this point on this forum before.
    These are natural rights. The constitution, as you say, delineates state powers as a necessary infringement upon those rights.
    [deleted] · 1789778446 · focus · HN ↗
    [deleted]
  3. stackskipton · 1789765982 · focus · HN ↗
    Generally yes but government can currently cancel your visa due to exercising those rights in many cases.
  4. pandaman · 1789770910 · focus · HN ↗
    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.
  5. lobf · 1789773501 · focus · HN ↗
    The constitution applies to all people under US jurisdiction. It only specifies a few citizen-only rights, like voting.
7. wat10000 · 1789765716 · focus · HN ↗
  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.
8. bshaughn · 1789766053 · focus · HN ↗
  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.
  1. maxerickson · 1789779030 · focus · HN ↗
    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.
9. Zak · 1789766181 · focus · HN ↗
  > 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.
  1. gpt5 · 1789766959 · focus · HN ↗
    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
    FireBeyond · 1789768963 · focus · HN ↗
    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.
    gpt5 · 1789769624 · focus · HN ↗
    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).
    LocalH · 1789842653 · focus · HN ↗
    Relying on that presumes an administration that respects the rule of law and doesn’t just do what they want anyway.
    We don’t currently have such an administration.
  2. iAMkenough · 1789771310 · focus · HN ↗
    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.
    <a href="https://en.wikipedia.org/wiki/Egbert_v._Boule" rel="nofollow">https://en.wikipedia.org/wiki/Egbert_v._Boule
    <a href="https://harvardlawreview.org/print/vol-136/egbert-v-boule/" rel="nofollow">https://harvardlawreview.org/print/vol-136/egbert-v-boule/
    lokar · 1789773071 · focus · HN ↗
    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).
    iAMkenough · 1789777179 · focus · HN ↗
    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).
    Edit:
    > “People in the government violated my privacy by reading my private information”, on its own, is not a harm the court can fix.
    Basically, the average American should treat Border Patrol agents like they're the Gestapo going after their private, Constitutionally protected information with no legal recourse for that potential violation of Constitutionally-protected right to privacy.
    If you're rich you can fight it, but the SCOTUS will likely determine Border Agent overreach is something that just happens until Congress establishes a penalty.
    lokar · 1789780518 · focus · HN ↗
    To seek damages in a court you must show that you have suffered specific harm that the court can remedy.
    “People in the government violated my privacy by reading my private information”, on its own, is not a harm the court can fix.
    If the legislature wants to assign a monetary value to that, they can.
    [deleted] · 1789783904 · focus · HN ↗
    [deleted]
    iAMkenough · 1789786145 · focus · HN ↗
    To seek damages in court, you must spend more than taxpayer-funded legal defendants to begin to establish the specific harm.
    Your next vote should consider an innocent-until-proven-guilty doctrine that provides potential American citizen victims of Border Patrol overreach a taxpayer-funded Consitutional lawyer in court and a trial in front of a jury of their peers.
    Your tax dollars are already being used to harass and falsely detain Americans, might as well also spend your tax dollars on defending the innocent (which might be you next year). Maybe the American Government will stop falsely detaining citizens if it becomes more expensive for taxpayers.
10. swerner · 1789766722 · focus · HN ↗
  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.
11. mywittyname · 1789767353 · focus · HN ↗
  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.
12. throw0101a · 1789817169 · focus · HN ↗
  > It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
  100 miles (160 km) covers about two-thirds (66%) of the US population:
  * <a href="https://www.aclu.org/know-your-rights/border-zone" rel="nofollow">https://www.aclu.org/know-your-rights/border-zone

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