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Court rules customs agents don't need a warrant to search your phone or laptop after you arrive at Logan from a foreign trip

A federal appeals court in Boston ruled yesterday that defending homeland security trumps privacy and free-speech rights at the border, so federal agents don't need a warrant or even "reasonable suspicion" to seize your phone or laptop on your return from a foreign trip, turn it on and see what pops up.

Other federal courts have issued similar rulings in criminal cases, but yesterday's ruling by the US Court of Appeals for the First Circuit may be the first such ruling in a civil case, in which several American citizens and one permanent resident who had their devices searched at an international airport but who were not criminally charged with anything, sued.

Although courts, including the Supreme Court, in 2014, have held that, if anything, phones require particular sensitivity to privacy issues because of the the vast amount of personal information somebody might keep on them, the First Circuit ruled that such Fourth Amendment rights against unreasonable searches and seizures only come into play once somebody's managed to clear customs without being detained, that one is not covered by the Constitution's penumbra while still going through a customs check. The court said similar logic applies to any rights to text on the device under the First Amendment.

The court said border searches have long been mostly exempt from the Fourth Amendment, under the premise that the government has the "inherent authority to protect, and a paramount interest in protecting, its territorial integrity," that the nation's right to protect itself is "at its zenith" at the border. And so, the court cited a 1985 case, that "the expectation of privacy [is] less at the border than in the interior ... [and] the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border."

The court added:

Further, given the volume of travelers passing through our nation's borders, warrantless electronic device searches are essential to the border search exception's purpose of ensuring that the executive branch can adequately protect the border. ...

A warrant requirement - and the delays it would incur - would hamstring the agencies' efforts to prevent border-related crime and protect this country from national security threats.

The court emphasized its ruling covers "basic" searches, in which an agent turns a device on and looks around, and that they have a certain "reasonable" period of time - five days for customs agents, but thirty days for ICE agents, under each agency's rules - before either returning the device to the owner, assuming he or she is not in detention, or without seeking approval from a supervisor.

The court said matters become a bit more complicated should the agent want to go deeper, for example, to look at the contents of encrypted files or files that have been marked as deleted, but said that even there, only "reasonable suspicion" is needed.

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Comments

so it makes sense that my phone can be checked without a warrant when entering the country...

and that they have a certain "reasonable" period of time - five days for customs agents, but thirty days for ICE agents, under each agency's rules - before either returning the device to the owner

Wait wait, what? My phone can be confiscated for up to a month at the border with no warrant. I cannot get on to my work computer without two factor authentication from my phone. It would take at least a day or two, including my physical presence in another building, to get that changed. I'm not even sure how I would do it without buying another phone.

If they look at it for 10 minutes and think they need more time, they should be required to go get a warrant. Taking my phone for up to a month with no warrant is absolutely unreasonable.

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Yup as now an international traveler, I'm a bit disturbed by how long they can keep my devices.

And like you without my phone, I'm dead in the water on both work and personal related access. Everything can be reset and redone, it would just take days to do.

Ex roommate of mine who traveled to Europe frequently had a old iphone and an ipad he traveled with. He would upload his data (pictures mostly) before he left Europe and wipe the phone. He was like "Customs can have it, there's nothing on it"

He also used to tell me to disable face ID/touch ID and power off the phone and device before going thru. Something about they cant ask to power it on, and if its not on, they can't look.

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Of course, coming through Customs with a burner phone and burner laptop may arouse some suspicion if they decide to stop you. That assumes that they even bother. I don't do much travel in general, but my personal experience with Customs at the airport was basically non-existent, just waved on through.

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A few years ago I was coming back from a weekend trip to Mexico after I had found a dirt cheap plane ticket. I have Global Entry so customs should be a quick process.

Some agent in Logan didn't seemed pleased I "only" had a backpack and was using Global Entry so he grilled me while other agents opened the bag and spread the contents on a table and dug through. After a few minutes they let me go, "kindly" giving me a few minutes to repack all the stuff they had scattered about.

These people are goons, plain and simple. I feel sorry for those who are minorities who no doubt are treated worse. They know you are powerless and completely take advantage of that.

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Not everyone enjoys the privilege of being "just waved on through" customs.

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Perhaps I should have more clearly highlighted that yes, it was my personal and very limited observation. I'm fairly certain in the past decade, I've only left the country once.

They (TSA, not CBP) did swab my cameras for explosives at one of the other airports on that trip, that was interesting, especially as someone who works in laboratories that contain chemicals that could be falsely detected as explosives.

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Get Authy and use codes instead of sms. It's more secure, plus you can you a desktop app in case you don't have your phone.

Avoid SMS for 2FA wherever you can.

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It's not up to me, I did not implement the 2FA so I cannot choose the method used. It's not SMS, but it has to be tied to a phone/tablet. There might be some way to get it to go to something else, but it has to be set up in advance.

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Who says I have to provide a pin/pw? They are probably also not aware of how to hide encrypted files which anyone trying to come across would do.

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Who says I have to provide a pin/pw?

Who says they need to release you in time to make your connecting flight so that you don't have to spend $800 buying a new ticket?

Who says they need to be careful and not break or trash your stuff while they search it?

CBP is, of course, predominantly dedicated, principled public servants, but jobs that confer the power to mess up your day, tend to attract people who get off on exercising that authority, and the organizations tend to develop a culture in which the decent majority looks the other way while the assholes fuck around.

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I suspect this will go up to the supreme court at some point.

Given the mix of justices, that could get interesting. Fascism comes in flavors, and this one seems likely to be disliked by even some hardcore trumpists while being embraced by others.

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After a relative was victim to a mitm attack when traveling to Asia, I travel with a burner phone. They are cheap and can still take decent photos but I don't associate it with any personal info or accounts. I realize for work that this could be impossible, but if traveling for pleasure, it is an easy way to protect yourself and identity.

I worry more about other countries' seizure and searches than the US as we have a fairly robust judicial process compared to other parts of the world. Still, I don't think this is a reasonable ruling for U.S. Citizens.

Also, with an iPhone that was confiscated, I wonder if you could simply wipe it remotely or if there is some sort of ruling or law that disallows that.

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Would love to see the venn diagram of how many of the "Murr Freedoms" anti makers are totally okay with this invasion of personal freedom violation. I would bet large sums that it's a near perfect circle.

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This makes zero sense. Agents of the US Government cannot violate people's Constitutional rights simply because they are at a point of entry. Is illegal search and seizure illegal or not?

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Just wait until you find out you can be stopped by CBP within 100 miles of any US border. Except for the southern slice of Vermont, all of New England falls within that zone.

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Bidens America after all

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Honestly, you should be careful. If Biden has the power to go back in time and create policies that were implemented by Trump, he can probably figure out who and where you are despite posting that as "anon".

and you are pretty much unprotected by the 4th amendment at the border.

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Does this ruling mean I'd have to give them my password or pin if asked? I'd have no problem with agents turning on my phone but without a pin/password/fingerprint they wouldn't see much. I wish they made that clearer in this ruling.

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"If you're not doing anything wrong, you have nothing to fear from unconstitutional intrusions into your privacy." This decision is a scary, dangerous, awful precedent.

Use strong encryption on all of your devices before your international flight lands. Disable biometric access mechanisms like facial and fingerprint recognition. Refuse to remember your decryption key when asked: a good one is long and hard to memorize anyway.

I could justify this by saying, "My devices contain protected company IP that I should not have to disclose to law enforcement that I don't necessarily trust to protect it", but the privacy principle is the important thing here. Resist!

Also, back up your devices frequently to diverse destinations and media so that if you lose or someone appropriates your device, you can restore most of your data to a new one and quickly resume your normal work and personal life. (This is a good idea even if you don't travel internationally.)

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This is bullshit.

Customs gets to read every email you’ve ever sent or received, just because you’re carrying a phone with you at the border?

Meanwhile, anyone who really has something to hide can easily keep that stuff off their phone. So it’s all useless.

Too bad if not allowing this would make law enforcement more difficult. That’s no reason you need to give up all your privacy if you ever want to travel internationally.