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. 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. 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.

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