Ninth Circuit Goes a Step Further to Protect Privacy in Border Device Searches

Re:Ninth Circuit Goes a Step Further to Protect Privacy in B... by wwwigham on Sunday August 25, 2019 @07:12AM (#20792326)

The question is posed because according to the article, the verdict is that the border patrol is allowed to perform _manual_ searches of electronic devices, just not forensic searches, even without reasonable suspicion, in pursuit of finding "digital contraband". A term which is notably ill defined and which the EFF would like to see limited to just CP, to clarify.

It's probably worth noting that since the search is still _allowed_, information can still be divulged from devices and then used as the basis for a parallel investigation (I believe), provided that information isn't used as evidence. So it doesn't sound like much is practically different, so much as technically legally different - slightly more hoops must be jumped through to convict based on arbitrary device searches, is all.

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Re:Ninth Circuit Goes a Step Further to Protect Privacy in B... by dontbenebby on Sunday August 25, 2019 @09:24AM (#20792812)

As a practical matter an encrypted phone can't be manually searched. What I'm not clear on is if CBP, absent reasonable suspicion, can penalize a traveler who does not decrypt.

Citizens, I suspect not. But unclear for noncitizens who don't have a defined constitutional right to enter. (In the past noncitizens who declined searches could risk being denied entry)

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Re:Ninth Circuit Goes a Step Further to Protect Privacy in B... by shostack on Sunday August 25, 2019 @09:24PM (#20796826)

It's an important question. Unfortunately in the current climate it seems that even if they weren't, you'd be left pursuing some recourse only after the incident occurred where they would likely react in a very hostile nature if you start trying to do things like point out what they were doing is illegal.

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Re:Ninth Circuit Goes a Step Further to Protect Privacy in B... by dontbenebby on Wednesday August 28, 2019 @01:14PM (#20821802)

>they would likely react in a very hostile nature if you start trying to do things like point out what they were doing is illegal.

I wouldn't lecture them on the law - a border (or the side of the road) isn't the place to debate what is illegal - that just gives them an excuse to claim they felt threatened.

I'd just assert my right to remain silent, let them seize the phone, restore from backups when I buy a new one, and contact a civil society organization when I get back out.

(And as a practical matter the phone is backed up and I am privileged enough to be able to buy a new one if needed)

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Re:Ninth Circuit Goes a Step Further to Protect Privacy in B... by tssva on Sunday August 25, 2019 @07:49AM (#20792436)

According to the article the ruling was that reasonable suspicion is required for a manual search for digital contraband.

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