Drudge Retort: The Other Side of the News
Wednesday, March 15, 2017

Tim Cushing, Techdirt: The Constitution -- which has always been malleable when national security interests are in play -- simply no longer applies at our nation's borders. Despite the Supreme Court's finding that cell phone searches require warrants, the DHS and CBP have interpreted this to mean it doesn't apply to searches of devices entering/leaving the country. For the past 15 years, the government has won 9/10 constitutional-violation edge cases if they occurred within 100 miles of our borders -- a no man's land colloquially referred to as the "Constitution-free zone." But the pace of device searches has increased exponentially over the last couple of years. The "border exception" is no longer viewed as an "exception" -- something to be deployed only when customs officers had strong suspicions about a person or their devices.

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In practical terms, boots-on-the-ground travelers are being subjected to intrusive searches just because there's nothing effectual in the law to prevent it. Asserting your rights at the border is a non-starter. You simply don't have any. No one's going to be playing 20 Quasi-Relevant Questions with travelers hoping to luck into consent. Officers and agents are seizing and searching devices by force.

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Would a traveler be well served to leave the phone in a checked bag?

Would a traveler be better served to remove the s-chip prior to the border?

Seems there should be a way to protect a warrantless search. Any suggestions, class?

#1 | Posted by oldwhiskeysour at 2017-03-15 12:34 PM | Reply

Ows or they could just buy a burner phone, forward incoming calls to that and FedEx their smartphone to where they live or are visiting.

#2 | Posted by Lohocla at 2017-03-15 01:03 PM | Reply

Does this also apply to computers? Because if they can do a warrantless search of a cell phone they certainly can also do one of a lap-top.

#3 | Posted by moder8 at 2017-03-15 01:55 PM | Reply

#2 | Posted by Lohocla

That's the safest bet. They can search the cheapie all they want to.

#4 | Posted by SomebodyElse at 2017-03-15 01:58 PM | Reply

Does this also apply to computers?
#3 | Posted by moder8

It does apply. Laptops they tend to just keep for a while. You might get it back in a few weeks. It may or may not still work. My company recommends overnight shipping if you must take the thing out of the country.

#5 | Posted by SomebodyElse at 2017-03-15 02:01 PM | Reply

Trumpelthinskin wants to make sure no one has another -------------, moved on her like a bitch recording of him.

#6 | Posted by mOntecOre at 2017-03-15 02:27 PM | Reply

The kicker for me is that 100 mile swath if they decide that is open for the same treatment.

Hard to take the precautions suggested if you are on your daily commute to work.

#7 | Posted by Lohocla at 2017-03-15 02:37 PM | Reply

Non citizens have no Constitutional rights. US citizens have rights but the gov has a right to search you at a border and airport just not within the US.

#8 | Posted by tmaster at 2017-03-15 02:46 PM | Reply

Non citizens have no Constitutional rights. US citizens have rights but the gov has a right to search you at a border and airport just not within the US.

Posted by tmaster at 2017-03-15 02:46 PM | Reply

WRONG Do try again.

#9 | Posted by LauraMohr at 2017-03-15 02:47 PM | Reply

"Non citizens have no Constitutional rights." - #8 | Posted by tmaster at 2017-03-15 02:46 PM

Three words: Zadvydas v. Davis.

Three more words: Plyler v. Doe.

Five words: Almeida-Sanchez v. United States

Four words: Yick Wo v. Hopkins

And back to five words: Wong Win v. United States

Oops.

#10 | Posted by Hans at 2017-03-15 03:05 PM | Reply


@#8 Non citizens have no Constitutional rights...

scholarship.law.georgetown.edu (PDF)

...Given this record, it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. But the presumption is wrong in many more respects than it is right. While some distinctions between foreign nationals and citizens are normatively justified and consistent with constitutional and international law, most are not. The significance of the citizen/noncitizen distinction is more often presumed than carefully examined. Upon examination, there is far less to the distinction than commonly thought. ...

[emphasis mine]

#11 | Posted by LampLighter at 2017-03-15 03:12 PM | Reply

Reset to factory defaults before you get to the border and restore it after. Of course they'll find a reason to arrest you for that I'm sure.

#12 | Posted by qcp at 2017-03-15 03:13 PM | Reply

Buy a Burner phone.

#13 | Posted by Bubba10 at 2017-03-15 03:31 PM | Reply

Also Have two hard drives for your laptop. Pack or ship the important one and have one in the laptop that just has the OS on it.

#14 | Posted by donnerboy at 2017-03-15 07:10 PM | Reply

Also. And this should go without saying. Image your hard drive before you travel.

#15 | Posted by donnerboy at 2017-03-15 07:30 PM | Reply

I look forward to the day when Canada annexes America.

#16 | Posted by pumpkinhead at 2017-03-16 10:26 AM | Reply

Taking computers across national borders is a huge security issue. Depending on your destination. Most laptops and personal gear are ok as long as the drive is not encrypted. Bringing anything encrypted into some countries is a crime. Many of US travel friendly countries have personal use exemptions that allow your personal devices as long as you do not "create, enhance, share, sell or otherwise distribute the encryption technology while visiting."

This is known as the Wassenaar agreement. It covers military dual use technologies. You need to understand that in some countries an American laptop could represent a significant upgrade to their military technology.

The most important thing for travelers is to be proactive. If you plan on visiting foreign countries you need to do a little homework. The State Department maintains a travel checklist for each country. Failure to do your homework can result in confiscations of personal property including over the counter and prescription medications.

#17 | Posted by hatter5183 at 2017-03-16 11:09 AM | Reply | Newsworthy 1

When you enter the US from another country, y'all do realize you are subject to search. Your devices, your luggage, and your body included. Me, I just flash my military ID and walk on through.

#18 | Posted by docnjo at 2017-03-17 04:04 PM | Reply

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