Borders for border guards: US court has established rules for checking devices - discuss the situation

In a previous post, we talked about whether it is possible to consider the screening of devices at airports a violation of human rights. Opinions are divided. Some advocated that a law-abiding citizen has nothing to hide from border checks. Others pointed to numerous constitutions that proclaim freedom of privacy from prying eyes.

And some time ago, the Boston federal court issued a fateful decision: the inspection services must have good reason to view the contents of your smartphone, laptop or other device. We tell how this situation is developing.


Photos - Robert Bye - Unsplash

Eleven sides of the same coin

The reason for the process was a class action lawsuit of 10 American citizens and one resident, which they filed with several US government agencies - the Customs and Border Protection Service (Customs and Border Protection), the Immigration and Customs Police (US Immigration and Customs Enforcement), the Department of Homeland Security (Department of Homeland Security).

How can you learn from the materials case, each plaintiff has its own history. In one case, a border guard officer got acquainted with emails and other data that fell under the protection of lawyer secrets. A Muslim plaintiff reported that controllers saw her photographs without a hijab. Border guards seized a corporate smartphone from a NASA engineer in order to scan the memory using special software. According to the victims, such actions violate two amendments to the US Constitution, including the fourth:

“The right of the people to protect their identity, housing, papers and property from unreasonable searches and arrests should not be violated. No warrant shall be issued otherwise than if there is sufficient reason, confirmed by an oath or a solemn declaration; the warrant must contain a detailed description of the place to be searched, persons or objects to be arrested. ”

The Boston court agreed that screening electronic devices at the border is contrary to this norm. To understand why, it is worth delving into history.

Echo of revolution

When the present USA was still a British colony, representatives of the empire did not disdain any methods to pump profits from their overseas possessions. The law allowed them to enter any home on suspicion that prohibited goods were stored there. These suspicions could be indicated in the search permit as a legal pretext for the invasion of the home.

Therefore, the fourth amendment, guaranteeing the inviolability of the home, and took such an important place in the life of the American state. From a certain point of view, border inspections contradict it: when an employee asks you to open your luggage and carefully looks through your things, he does not formulate any “sufficient reason” and does not provide a warrant with “a detailed description of the place to be searched, persons or objects to be arrested ".


Photo -CDC - Unsplash

This discrepancy was not in the spotlight - citizens simply had to choose between public safety and closed borders. And when developed countries stepped into the digital age, the situation with searches became even more confusing.

Cell Phone - More Than A Phone

In 2009, a certain David Riley was stopped on the road due to expired numbers. The driver had expired rights, and then in the car they found a hidden loaded weapon. Riley was taken to the station, where law enforcement officers decided to look at his cell phone. On the device were messages, photographs and videos that linked the detainee to one of the gangs. This evidence was enough for a guilty verdict , but he was successfully challenged by lawyers who doubted that the police had the right to study the detainee’s device.

According to American law, during detention, except for the person himself, you can inspect only potentially dangerous things - for example, check if there are any weapons in a discarded backpack. A cell phone clearly does not pose such a threat, so you can’t climb into his notebook.

The Supreme Court upheld Riley: “Electronic data cannot be used as a weapon or [physical] means of escape,” the judge ruled. “When the policeman is convinced that the blade is not hidden in the phone case, the device does not threaten anyone.” It is the decision in the Riley case that is mentioned in the report on searches of electronic devices. The court ruled that these measures should not confront national security with privacy.


Photos - Sandeep Swarnkar - Unsplash

Sophia Cope , spokeswoman for the Electronics Frontier Foundation (Electronic Frontier Foundation, an American non-profit human rights organization that advocates for the protection of civil rights in the face of new IT and telecommunication technologies) , says that such a finale will allow everyone coming to the US confidential data. Although the US border services have the right to study travelers' devices, they are obliged in each case to justify their desire. If there is nothing to reinforce suspicions about a person, an employee can only require documents.

What will happen now

The new rules, of course, apply only to the American border services, but the problem itself is relevant not only in the United States. With almost the same activity, electronic devices are inspected upon arrival in Canada - over the past two years, more than 27 thousand gadgets have passed through checks . The Russian Ministry of Foreign Affairs even contacted the Chinese authorities for explanations , and some, after inspection on the Chinese border, found spyware on their smartphones .

Given that outside the United States the issue of screening is still an issue, travelers have to take precautions. And if you are not inspired by the idea of ​​taking a spare smartphone on vacation, you can limit yourself to duplicating data from gadgets to the cloud. At the very least, this will help prevent their complete loss - by the way, one of the plaintiffs in Boston faced exactly such a problem: the video from the graduation daughter disappeared from his phone.

What else do we have on Habré:

• Who and why wants to make the Internet “shared”
• Who wants to make cooperatives out of IT giants
• Screening devices at the border - need or violation of rights?