Maybe we should just assume that potentially illegal encrypted data is not worth searching foreigners on the border.
Again, if someone wanted to share CSAM, why would they not just use the internet?
It’s not rare that someone’s phone is examined entering US/Canada for tourism to see if they are going to work illegally.
But I do agree that carte blanche access to the entire contents of a phone seems overboard. There should be some safe guards that limit access to private information.
They can search your physical property to see if there is evidence you plan to work in the US or are lying about your intentions for entering the US (all countries do this).
People have been denied entry because they bring work documents while saying they are entering the US for tourist purposes.
I don’t disagree that search of electronic devices should be a higher bar, but physical searches to determine intent to enter has always been in immigrations remit.
Each country has the right and privilege to determine who is allowed in and why. I may or may not like their choices but it's their right to make them.
Most countries (this is empathically not some USA specific weirdness) make a significant distinction between those who want to enter temporarily to see the sights, vs those who want to enter more permanently, perform work, and thus engage themselves with the system more broadly (taxes, accident insurance, healthcare, what have you).
While I personally 1. Think there should be more broad immigration into virtually every country but particularly mine and 2. Think border data searches are unreasonable, I think conflating the two detracts from either argument.
But doing this is useless. It only works once.
People who intend to work on a travel visa bring their work documents across the border, one of them gets caught, they object and take it to court. If the court says the search is allowed then it's henceforth public knowledge that it's allowed so people intending to do this stop physically carrying their documents across the border and instead transfer them over the internet.
Already it's common guidance for anyone to do that even if you're not breaking any laws, because it keeps them from rifling through your life and detaining you while they force you to explain whatever nonsense false positives they may find.
At which point the search is purely an inconvenience to innocent people and a trap for the unwary because anyone actually breaking the law can easily avoid physically transporting any incriminating documents across the border.
If you have a kilo of heroin you want to get from Mexico to Los Angeles, you cannot get it there without physically crossing the US border.
You could be standing in the center of Nebraska, the only triply-landlocked state in the US and not with 100 miles of any border, and directly transfer arbitrary information via an encrypted connection from the International Space Station in orbit over the Indian Ocean on the other side of the planet.
The point is that there is nothing special about physical proximity to the border with respect to information.
Subjecting travellers to searches for these items on entry, overriding the need for a warrant or probable cause, is thus defensible as a legitimate reduction of risk. On the contrary, searching an individual who is within the country without a warrant or probable cause cannot be argued to protect the country from any risk, given that if this person has these items then they are already there — the damage has been done.
Now let's compare this argument with child pornography. The reason CP material is illegal is not because the material itself causes damages, but because its very existence requires causing damage to create it. Also, its posession —a proxy for its consumption— causes an incentive for more CP being produced and hence more damage.
To put it bluntly, drugs are illegal because they are (ostensibly) damaging to the person and community that consume them. CP on the other hand is damaging to the victims and communities used to produce it.
With that in mind, what interests of the state or society are being defended by warrantless search for CP on border entry? Without denying that a carrier of CP should hopefully be caught and put to trial, the damage is already done and will not be exacerbated by the entrance of CP into the country, nor will be reduced by stopping it. There is no valid argument for arbitrary spot-checks for CP at border crossings that could not equally be applied for arbitrary spot-checks for CP on citizens at any given moment.
As a corollary though, I have to say that my argument justifying physical contraband border checks on entry due to the legitimate interests of the state does justify warrantless CP checks on the border... but only on leaving a country, not on entry. Making it harder for locally produced CP to leave a country can be argued to reduce the incentive for local production of CP, which would result in damage reduction.
But that fails to the original point -- crossing the border with a physical medium in your possession isn't necessary to export the information out of the country, so you cannot prevent it by conducting searches there.
The state has no legitimate interest in measures that are ineffective.
This is contestable. I wrote a longer reply above but where I would say this is contestable is in question of what the state's interests actually are. I think you're operating on the assumption that the state's interests are that of efficiently allocating public resources and maximizing the safety and wellness of its citizens. Something most people probably want from their governments. But this is not necessarily the state's own interests. I don't think that many would argue that many members of the state actively encourage inefficiency, especially when they can personally benefit from such inefficiencies, even if at the expense of the citizens they represent. You know, treason. "Just a little treason"
Fwiw, I don't think this distinction takes away from your point, which I agree with. It just adds to potential complexity needed to possibly find a solution.
For starters: taking foreign travelers' phones or other devices away, temporarily or long term, creates a precedent for other countries to do the same. It is not a "rules for you, but not for me" situation. In that time period, we have no information if the device obtains malware or anything else. Thus the citizen returning home would inadvertently be "smuggling" contraband in the form of cyberweapons. It makes your own citizens more vulnerable to attack since it is much easier to hack a device when given physical access than when the attack has to happen remotely (which the government itself can play a role in since the literal entrances to networks require physical presence. Note that this does not necessitate decryption of data!) You cannot in good faith (or not) put pressure on other countries to not confiscate travelers' phones when you do the same. States that clearly don't have our own interests in mind. This is treacherous territory when you consider there are many states like China where we have contentious relationships with. Where we work with them closely, so foreign travel is not only expected but promoted (comes with an advantage of possible cultural imports, but that's meta), but at the same time there is an adversarial relationship.
When such a relationship exists between any two countries it would behoove the country to install malware on the foreign citizens' phone which can be exploited in numerous ways (both while that person is within the foreign country as well as when they return home). The only solution is to create a strong stance and precedence to prevent your own citizens' devices from ever having exclusive access by a foreign entity. This isn't just for high profile targets, this is for every citizen. We are well aware that mass manipulation works and that you can use ordinary citizens to gain increased sampling fidelity. More than one would be able to do with tools such as TikTok or Facebook.
Second: when looking at the smuggling of literal contraband such as child porn, illegal money (say idk cryptocurrencies), cyber weapons, or other such things, you have now incentivized going after the user rather than the creator. There are plenty of examples of this leading to poor solutions, with many examples of successful models. In the US the war on drugs did not go after the drug lords, dealers, distributors, and manufacturers, they predominantly went after users. The reason being is that these users are both far more common and significantly easier to pursue. When we use metrics such as number of arrests, persecutions, and so on to measure the effectiveness of our methods we align the pursuing agencies against the actual intent. The belief is that by going after users we decrease demand and side channel an attack to the upstream distributors but we literally saw an increase in alcohol usage during prohibition. Instead we can see how such metrics would actively incentivize such increases through the well known Cobra Effect. It isn't hard to find many cases where FBI agents have turned someone who was a little radical or mentally handicapped into an extremist, and then collect their bounty. Where these people would not have had the capacity to perform such an act without the help of federal agents. This isn't entrapment so much as heavy handed persuasion and is not hard to argue that the federal agent is instead the one performing that actions that are being stopped. The person being charged is a proxy or vehicle for such actions.
In classic style, Goodhart's law comes into effect because simplification of problems and a seeking of "good enough" is not necessarily aligned with the actual problem attempting to be solved. Many people forget that first order approximations often run inverse or orthogonal to the function they are approximating. Little do they question how quickly they diverge. Momentum also plays a heavy hand in these situations as we are resistant to change and exclusively operate on the belief that a system must be reconstructed from the group up (and thus stopped) rather than pushed back into alignment.
We have successfully seen models of decriminalization (distinct from legalization! Users can have contraband confiscated and still receive fines) work for drugs but this puts a significant pressure on agencies to shift focus to the true culprits of the material that is causing damage in the first place. When these work it is often because there are structures in the systems to incentivize actions that are more closely aligned with the actual intended goals. But these systems too may not work -- not just in the beginning where momentum is being overcome -- because environments change and the alignment can drift from the solution. An unwillingness to revisit and update policies is harmful in all cases. In essence, we have forgotten the clique "all models are wrong" and forget that metrics are models themselves.
"All laws are meant to be broken" because all laws are not perfectly aligned with the intent of the laws. We see any misalignment as failure in the entire system rather than edge cases or flaws that need to be updated or reiterated upon. But the environment is always evolving so if we don't have explicit mechanisms for continual updating as well as systems that perform quality assurance and account for edge cases (not just black swans) then any such system/policy is doomed. It is simply a matter of time. One needs to specifically account for that the "most optimal" route will be converged upon over time which maximizes the loss function of the policy. Maximizing the policy function is *VERY* different from maximizing the intent of a policy. The problem comes down to hyper-local (including temporal) optimization. If nuance isn't taken into account then ironically we waste far more energy pendulum swinging between solutions than were we to actually have considered the nuance in the first place. It is like waiting for things to break to fix them rather than perform regular maintenance. The latter uses far fewer resources and encourages iteration and re-alignment while the former often results in strong reactions that often result in large losses which are not able to be handled in that moment.
I often wonder if this hyper-focus on simplification is one of the great filters to intelligent creatures. Where a civilization becomes sufficiently advanced that nuanced principles dominate the challenges that such societies face, but due to the (likely) nature of the beings struggling to account for these nuances (evolutionary pressure is to approximate solutions and perform cheapest and most energy efficient computation at the scale of the individual and only within their lifetime) they are unable to solve them and worse, their solutions end up exacerbating such challenges. (Sorry, last part got very meta but I do think this is all connected because the mechanisms at play here are far larger than the specific topic being discussed.)
Moreover, you're just making the colorless argument that anything will be interpreted to increase rather than constrain police power, despite historical evidence to the contrary. The current composition of the Supreme Court has a tendency to do that, but the two Justices most inclined to do it are also the two oldest.
As a practical matter you also can't search data that comes in via terrestrial data networks because the bulk of it is encrypted and the links are too fast for realtime analysis anyway.
And as information, it also has First Amendment protection.
Since excluding information at the border is both un-American and a practical impossibility, there is no valid argument for information crossing the border to have reduced constitutional protection. Any state interest in excluding it cannot be served in that way or at all.
Data cannot be transmitted or stored but via physical phenomena.
> If you're in Mexico (or, for that matter, Africa, or outer space) with a radio transmitter, you can transmit a signal into the US.
And such broadcasts are very much not protected from government monitoring.
Physical phenomena are not physical objects.
> And such broadcasts are very much not protected from government monitoring.
The government can't monitor their contents when it's encrypted, and in either case can't meaningfully exclude people in the US from receiving the transmissions, which was supposed to be the rationale for the search.
Constitutionally, it can monitor it.
Whether it is able to understand it is a separate question.
Though, yes it can and has accessed the content of encrypted data, whether because the encryption was broken in advance, or later because it recorded the contents and gained the information necessary to penetrate the encryption later, either through cryptanalysis or by other means of gathering intelligence.
> and in either case can’t meaningfully exclude people in the US from receiving the transmissions, which was supposed to be the rationale for the search.
Yes, there are some methods of getting data into the country for which the government’s ability to mitigate the effects of that are more limited, that is neither a legal nor much of a practical argument against mitigations measures where they are practical.
But that question is relevant, because the utility of any monitoring depends on the subject's ability to evade it. There is negligible value in subjecting innocent people to invasive monitoring if actual criminals have an alternate path to unimpeded communications, because the criminals will disproportionately discontinue using the path subject to monitoring, resulting in a disproportionate cost to innocent people without impeding criminal activity.
> Though, yes it can and has accessed the content of encrypted data, whether because the encryption was broken in advance, or later because it recorded the contents and gained the information necessary to penetrate the encryption later, either through cryptanalysis or by other means of gathering intelligence.
No one has ever demonstrated a practical break of AES.
> Yes, there are some methods of getting data into the country for which the government’s ability to mitigate the effects of that are more limited, that is neither a legal nor much of a practical argument against mitigations measures where they are practical.
It implies that other mitigation methods are useless, because anyone transferring contraband can merely switch to the method not subject to monitoring or censorship, if that wasn't where they started because those methods are more efficient than physical transport to begin with. And if something is easily evaded and therefore useless, surely it can justify no exceptional invasion of privacy.
Yes it does, at least the type that humans can access. Electrons have mass, momentum, spin, etc...
But diverging into a discussion of elemental physics is fundamentally missing the practical difference: Customs and Border Patrol can seize a kilo of heroin. Can they, in actual fact, seize the aether?
Why do you think I mentioned electrons specifically and not copper wires, optical fibers, etc.?
What do you think radio waves transmit through the vacuum of space where there are no electrons? It's energy, not matter.
But that still isn't the point. The point is that the United States does not in fact and could not feasibly in practice block all radio transmissions from outside the United States from reaching people inside it. The First Amendment may prohibit them from doing so even if it was technically feasible, which it also isn't.
The parent comment is clearly referring to a terrestrial border, on Earth.
And in any case humans currently only possess the technology to receive radio waves, even in a hard vacuum, via electrons. So 'Data' that matters to humans is always physical, with tangible non-zero mass, 100% of the time in 100% of all conceivable situations circa 2023.
But most relevantly, there is no practically feasible barrier you can use to keep them out of your country.
Also, what does 'practically feasible' have to do with the parent comment?
A lot of things that are not practically feasible are nonetheless mandated in some form or another, and are still punished for if a transgression is detected via happenstance, there are many examples throughout history.
Physics theorizes the existence of wormholes that can transfer information point to point. But what physics theorizes is not the point.
Whether or not you could hypothetically construct a Faraday cage around the entire United States to limit international radio communications is not relevant, because it would be prohibitively expensive and blot out the sun.
What matters is what is feasible in practice, taking into account both the physical and economic realities. The internet exists and it will continue to exist as a result of both technical reality and economic necessity. The practical effect is the widespread availability of information teleportation.
Excluding information at the physical border but not over the internet is useless, but excluding it over the internet is both not happening now and infeasible to make happen, so excluding it at the physical border will remain useless and therefore has no justification.
I do think the law should be updated, but I imagine it being a non-starter politically right now.
[0] https://reason.com/2010/05/03/porn-star-saves-man-from-incom...