Courts Close the Loophole Letting the Feds Search Your Phone at the Border

textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment

Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)

Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.

[1] https://en.wikipedia.org/wiki/Originalism

For the Hacker News members who are reflexively downvoting my comment, presumably for political reasons, I refer you to Riley vs. California, the 2014 SCOTUS decision that ruled warrantless searches of cell phones were unconstitutional:

https://supreme.justia.com/cases/federal/us/573/373/

The opinion was written by Roberts with a concurrence by Alito.

Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.

I think the issue is that suspension of certain Constitutional rights at the border is a reasonable limit on those rights.

2012 was a very different court.

  Gorsuch, Neil M.        April 10, 2017  
  Kavanaugh, Brett M.     October 6, 2018  
  Barrett, Amy Coney      October 27, 2020  
  Jackson, Ketanji Brown  June 30, 2022

The Supreme Court has been nearly perfectly consistently shitty in the last 5 years.

Exactly this. (and for those unfamiliar with the terms, in federal courts "Circuit Courts" are the first level of appeals courts, which both sides have a right to be heard in, followed by the Supreme Court which is discretionary and only takes on big cases)

When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.

I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.

If I had to wager, SCOTUS will uphold warrantless border searches.

So does that mean they may not want to appeal it at all to avoid a ruling in a higher court?

Since smart phones are explicitly mentioned in Article 4 along with bump stocks, it’s pretty clear how this SCOTUS would rule.

For Face ID, just close your eyes.

Passwords are personal data, faces and fingerprints are not, apparently.

The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.

You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.

Five taps of power button on iPhone disables biometrics until you enter the passcode. I always do this before going through airport security

They just have to change the language back to English

What's the alternative? The guy paid $1000+ just to get there and spent 3+ hours at customs. Refusing is basically saying "ok I fly back home"

Aaaaand with the bootloader unlocked, they'll just grab the Cellebrite and/or call up Cellebrite Professional Services for remote unlock assistance.

https://cellebrite.com/en/advanced-services/

The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").

That sounds like a good recipe for getting pulled for secondary screening

That certainly won't look suspicious at all /s

Nah, you bring a new phone with no contacts other than family and colleagues on it.

Use the most obscure fork of Android possible

Why Android? Try GNU/Linux with SXMo instead: https://news.ycombinator.com/item?id=39155103

Which countries do you think have better rights regimes than the US? Ie which countries _are_ you willing to travel to?

The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote).

At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.

Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.

It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.

True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.

I travel with a dumb phone. I do this because if I get mugged, I'm out something I don't care about. I wear a tin wedding ring when travelling too.

I've been asked for my phone at customs, and I just hand over the "nokia". They can play snake all the like.

I've crossed the border hundreds of times and no one has ever asked me for my social media accounts.

Non-citizens don't have a right to cross the border.

It would not really make sense. CarPlay is just your phone using the car’s screen. How would you do that for one app and nothing else?

It’s actually the native integrations that do this. Android Auto and CarPlay basically act as a display for your phone and little data leaves your device. Connect via Bluetooth to many vehicles and that data syncs to the car’s infotainment.

Here’s one:

https://www.theregister.com/2023/11/09/car_text_harvesting/

There is an asymmetry in your reasoning that I don't doubt is in many court decisions due to sovereign immunity, but need not be universal. If the law is declared unconstitutional, then that law was unconstitutional the whole time. Therefore there was no legal basis for the people-who-happened-to-be-employed-by-the-government to do what they did. And I'm pretty sure the laws against false imprisonment and extortion weren't passed yesterday.

You can't apply the law retroactively.

I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?

The states might apply this differently, I'm out of touch, but under fed law, I think you can only apply new SCOTUS rulings to criminal cases that are still not "final." (e.g. haven't gone to trial, or haven't completed their course through all 11 or 13 stages of appellate review.. however many there are these days inc state + fed + habeas)

You can't apply the law retroactively.

There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.

E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:

<https://www.npr.org/2023/12/22/1221230390/biden-pardons-clem...>

This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.

But your damage control is within reach.

Sure, you're talking about legally what is, due to the concepts of sovereign immunity and more specifically qualified immunity. My point is that the concept of sovereign immunity itself needs to be drastically curtailed (to the point that qualified immunity would be moot).

Sure but I learned that hard way when I got the sealed probable cause statement of my warrant, the detective claimed an unnamed officer claimed an unnamed dog alerted and that set off that intermediate standard.

So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.

They can easily make up lots of reasons that will count as reasonable suspicion or probably cause.

Right, so it's not even like a strip search, it's still much worse.

Yeah, that sounds like the cops.

This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.

Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.