US government sued over warrantless phone and laptop border searches

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kingdragonfly

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#223149 15-Sep-2017 08:52

US government sued over warrantless phone and laptop border searches

by Rich Haridy
http://newatlas.com/us-sued-for-border-searches-electronic-devices/51341/

"Eleven plaintiffs have banded together to sue the Department of Homeland Security with the help of the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), arguing that the current policies around border officers searching the electronic devices of US citizens are unconstitutional invasions of privacy.

In January of this year, natural-born US citizen Sidd Bikkannavar was detained at an airport in Houston after a short personal trip to Chile. Following a brief interrogation, Bikkannavar was told to hand over his phone and tell custom agents the passcode. Bikkannavar, who works for NASA's Jet Propulsion Laboratory (JPL), initially refused, explaining to the agents that the phone is the property of NASA and contains classified information that cannot be shared.

The customs agent insisted they had the authority to search the phone and Bikkannavar would not be allowed to leave until he handed over his passcode. Bikkannavar reluctantly submitted and the phone disappeared for 30 minutes before being returned with the agent ambiguously commenting that it had been searched using 'algorithms.'

The JPL tech team was reportedly not at all happy about the security breach and in the days following the event Bikkannavar wrote on his Facebook page, 'I'm back home, and JPL has been running forensics on the phone to determine what CBP/Homeland Security might have taken, or whether they installed anything on the device.'
..."

Links to freedom fighting organizations:

https://www.eff.org/
https://www.aclu.org/

wellygary

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#1866667 15-Sep-2017 09:04

I would have thought that Riley would make this a slam dunk....

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kingdragonfly

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#1866675 15-Sep-2017 09:13

You're correct. It confusing because the US Supreme court already ruled on it in 2014, but border police searches of phones still continues.

https://en.wikipedia.org/wiki/Riley_v._California
Riley v. California

From Wikipedia,

Riley v. California, 573 U.S. (2014) is a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

The case arose from a split among state and federal courts over the cell phone search incident to arrest (SITA) doctrine.

The Fourth, Fifth, and Seventh Circuits had ruled that officers can search cell phones incident to arrest under various standards.

frankv

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#1866751 15-Sep-2017 11:11

kingdragonfly: You're correct. It confusing because the US Supreme court already ruled on it in 2014, but border police searches of phones still continues.

https://en.wikipedia.org/wiki/Riley_v._California
Riley v. California, 573 U.S. (2014) is a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

From what I read there (IANAL), a key thing with Riley is during an arrest... the right to do a search during an arrest is related to identifying weapons the arrestee may have available, or the ability to flee.

Since the NASA guy wasn't being arrested, Riley doesn't apply. Presumably the border police base their claimed right to search on some other law; perhaps the right of Customs/Homeland Security/Border Patrol/whatever to search for contraband and illicit publications? Customs, etc can do body cavity searches, etc, without warrants, so (under some circumstances) their search powers must be greater than the Police?

Jase2985

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#1866774 15-Sep-2017 11:45

frankv:

From what I read there (IANAL), a key thing with Riley is during an arrest... the right to do a search during an arrest is related to identifying weapons the arrestee may have available, or the ability to flee.

Since the NASA guy wasn't being arrested, Riley doesn't apply. Presumably the border police base their claimed right to search on some other law; perhaps the right of Customs/Homeland Security/Border Patrol/whatever to search for contraband and illicit publications? Customs, etc can do body cavity searches, etc, without warrants, so (under some circumstances) their search powers must be greater than the Police?

but he wasnt allowed to leave till he surrounded his phone, what do you call that?

frankv

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#1866805 15-Sep-2017 12:15

Jase2985:

frankv:

From what I read there (IANAL), a key thing with Riley is during an arrest... the right to do a search during an arrest is related to identifying weapons the arrestee may have available, or the ability to flee.

Since the NASA guy wasn't being arrested, Riley doesn't apply. Presumably the border police base their claimed right to search on some other law; perhaps the right of Customs/Homeland Security/Border Patrol/whatever to search for contraband and illicit publications? Customs, etc can do body cavity searches, etc, without warrants, so (under some circumstances) their search powers must be greater than the Police?

but he wasnt allowed to leave till he surrounded his phone, what do you call that?

Dunno. IANAL. We're seeing a news report which may have used the words "detained" and "interrogation" and "not being allowed to leave" loosely. But they didn't use the word "arrested". Maybe the "custom agents" [sic] actually said he was not allowed to proceed (i.e. re-enter the USA). Maybe they asked (perhaps quite forcefully) for his phone and password rather than "told him" to hand them over.

These are the kinds of hairs that you need a lawyer to split.

BarTender

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#1866962 15-Sep-2017 15:12

Time to have full secure device wipe enabled on your phone and any other digital devices and make sure everything is backed up before you fly to the US.

If you get asked to unlock your phone enter the code incorrectly x times, device securely wiped, hand it over to the authorities, fill your boots.

and

MadEngineer

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#1866968 15-Sep-2017 15:30

And then they refuse entry because you just wiped data, else they ask for Facebook credentials

You're not on Atlantis anymore, Duncan Idaho.

tripp

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#1866973 15-Sep-2017 15:35

BarTender:

Time to have full secure device wipe enabled on your phone and any other digital devices and make sure everything is backed up before you fly to the US.

If you get asked to unlock your phone enter the code incorrectly x times, device securely wiped, hand it over to the authorities, fill your boots.

Or better backup your device before you go, delete everything on it before getting on the plane (or when you are on the plane) set it up as a new phone with basic stuff in it when you are on the plane, if they want to check it let them and unlock it for them, once outside reset phone and restore from backup :P

BarTender

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#1866978 15-Sep-2017 15:40

MadEngineer: And then they refuse entry because you just wiped data, else they ask for Facebook credentials

Slightly different if you were a US citizen returning home as is the case above.

When I was just in the US I did remove everything on my phone including all social media accounts as a precaution and just used my phone for taking photos and using data with a local SIM.

and

frankv

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#1866981 15-Sep-2017 15:46

Yeah... put all your contraband-type-stuff on an SD card. Think of somewhere about your person to secrete it.

Or encrypt everything and upload to DropBox using free airport wifi on arrival. Delete from your device(s). After passing through Customs, restore from DropBox and decrypt.