| |
The Volokh Conspiracy » Two Tourists Not Allowed in Country, Locked Up Overnight, Based on “Destroy America” Joke
by Decius at 3:45 pm EST, Jan 31, 2012 |
Me: I think the practical issues with this go way beyond a simple matter of whether or not it was reasonable under the circumstances to deny this couple access to the USA. CBP claims broad authority to seize and perform detailed searches of travelers personal laptops, cellphones, and other electronic devices, at random, with absolutely no requirement that the circumstances reach a certain minimum standard of suspicion. CBP could seize EVERY laptop that enters the country under their interpretation of US policy and Constitutional law. If all that it takes is a single sarcastic comment on Twitter for Americans to find their laptops seized and all of their private email, writings, and other documents subjected to detailed inspection by the Government the next time they go on an overseas vacation, there is absolutely no question that this will have a significant negative impact on the freedom of expression in this country. No question. (In this case there is nothing that indicates that laptops were seized or searched. However, CBP argues that there are no meaningful limits to their power to search the content of electronic devices at the boarder. Therefore, if Twitter comments are leading to CBP searches, it is inevitable that some of those searches will include electronics.) CBP’s powers have expanded radically in the past decade as a consequence of technological accidents, deferential court rulings in the wake of 9/11, and supportive federal policy. When you start seeing people self censor for fear of misinterpretation by CBP, you are now firmly in territory where our basic freedoms as Americans are in jeopardy. CBP’s job is obviously important and necessary, but just like other kinds of law enforcement, it can be done with reasonable limits that are also necessary to protect our country’s freedoms and identity. Something must be done now to reign this in and set reasonable, objective limits that protect people’s basic constitutional rights.
|
| |
RE: The Volokh Conspiracy » Two Tourists Not Allowed in Country, Locked Up Overnight, Based on “Destroy America” Joke
by CypherGhost at 4:06 pm EST, Feb 2, 2012 |
Decius wrote: CBP claims broad authority to seize and perform detailed searches of travelers personal laptops, cellphones, and other electronic devices, at random, with absolutely no requirement that the circumstances reach a certain minimum standard of suspicion. CBP could seize EVERY laptop that enters the country under their interpretation of US policy and Constitutional law.
I'm interested to see how far the government thinks it can take the searches. For example, let's say they are searching my cellphone. Does that mean they can check my voicemail, which is not stored on the phone but stored on my carrier's servers? If your phone is linked to your email account, can they read your email? Does that include just the email already downloaded or does it also include the email that will automatically be downloaded when they turn it on? Can they cause new email to arrive, such as password reset notices from other services? If I have an Evernote or Dropbox application installed on my phone or laptop, are they allowed to access the information in those accounts? Honestly, most of the law enforcement types I've met probably don't know the difference between these services an a regular "app" on the phone, so they would probably feel as though they were entitled to access it. Even if they were not, there's a lot of case law where police who discover evidence "accidentally" (such as finding drugs on you when you are being arrested for some non-drug offense). I could see the courts continuing that logic and concluding that anything they find accidentally while conducting a lawful search is admissible. |
|
| | |
RE: The Volokh Conspiracy » Two Tourists Not Allowed in Country, Locked Up Overnight, Based on “Destroy America” Joke
by Decius at 12:16 am EST, Feb 3, 2012 |
CypherGhost wrote:
Does that mean they can check my voicemail, which is not stored on the phone but stored on my carrier's servers?
I don't think so - this would involved accessing something that you were not carrying with you across the border. If your phone is linked to your email account, can they read your email?
They could read any email that was downloaded onto your device. Does that include just the email already downloaded or does it also include the email that will automatically be downloaded when they turn it on?
I don't think the later has ever been considered by the courts. I imagine that standard forensic practices would avoid connecting the device to a network after it was seized. However, I suspect that once the device was seized, you'd have a hard time excluded evidence that it automatically retrieved. Can they cause new email to arrive, such as password reset notices from other services?
This is an interesting question - beyond my knowledge of the law - possibly beyond the laws knowledge. Even if they were not, there's a lot of case law where police who discover evidence "accidentally" (such as finding drugs on you when you are being arrested for some non-drug offense).
Right - I think the "good faith" defense would apply here and the evidence would be admissible even though it technically wasn't covered by the search authorization. |
|
|
|
