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More than 325,000 people enter the United States via airports every day, with hundreds of thousands more crossing by land at the borders. Not only is that a lot of people, its also a lot of computers, smartphones, and tablets riding along in our pockets, bags, and trunks. Unfortunately, the Fourth Amendment protections we enjoy inside the U.S. for our devices arent always as strong when were crossing bordersand the Department of Homeland Security takes advantage of it. On the other hand, the border is not a Constitution-free zone. What are the limits to how and how much customs and immigrations officials can access our data?

To help answer those questions, were offering the second in our series of posts on the Constitution at the border, focusing this time on the Fourth Amendment. For Part 1 on the First Amendment, click here.

The Fourth Amendment forbids unreasonable searches and seizures by the government. In most circumstances, the Fourth Amendment requires that government agents obtain a warrant from a judge by presenting preliminary evidence establishing probable cause to believe that the thing to be searched or seized likely contains evidence of illegal activity before the officer is authorized to search.

Unfortunately, the Supreme Court has sanctioned a border search exception to the probable cause warrant requirement on the theory that the government has an interest in protecting the integrity of the border by enforcing the immigration and customs laws. As a result, routine searches at the border do not require a warrant or any individualized suspicion that the thing to be searched contains evidence of illegal activity.

But the border search exception is not without limits. As noted, this exception only applies to routine searches, such as those of luggage or bags presented at the border. Non-routine searches such as searches that are highly intrusive and impact the dignity and privacy interests of individuals, or are carried out in a particularly offensive manner must meet a higher standard: individualized reasonable suspicion. In a nutshell, that means border agents must have specific and articulable facts suggesting that a particular person may be involved in criminal activity.

For example, the Supreme Court held that disassembling a gas tank is routine and so a warrantless and suspicionless search is permitted. However, border agents cannot detain a traveler until they have defecated to see if they are smuggling drugs in their digestive tract unless the agents have a reasonable suspicion that the traveler is a drug mule.

How does this general framework apply to digital devices and data at the border? Border agents argue that the border search exception applies to digital searches. We think they are wrong. Given that digital devices like smartphones and laptops contain highly personal information and provide access to even more private information stored in the cloud, the border search exception should not apply.

As Chief Justice Roberts recognized in a 2014 case, Riley v. California:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life.

Snooping into such privacies is extraordinarily intrusive, not routine. Thus, when the government asserted the so-called incident to arrest exception to justify searching a cell phone without a warrant during or immediately after an arrest, the Supreme Court called foul.

Why is the Riley decision important at the border? For one thing, the incident to arrest exception that the government tried to invoke is directly comparable to the border search exception, because both are considered categorical exemptions. Given that the intrusion is identical in both instances, the same privacy protections should apply.

Moreover, with the ubiquity of cloud computing, a digital device serves as a portal to highly sensitive data, where the privacy interests are even more significant. Following Riley, we believe that any border search of a digital device or data in the cloud is unlawful unless border agents first obtain a warrant by showing, to a judge, in advance, that they have probable cause to believe the device (or cloud account) likely contains evidence of illegal activity.

However, lower courts havent quite caught up with Riley. For example, the Ninth Circuit held that border agents only need reasonable suspicion of illegal activity before they could conduct a non-routine forensic search of a travelers laptop, aided by sophisticated software. Even worse, the Ninth Circuit also held that a manual search of a digital device is routine and so a warrantless and suspicionless search is still reasonable under the Fourth Amendment. Some courts have been even less protective. Last year a court in the Eastern District of Michigan upheld a computer-aided border search of a travelers electronic devices that lasted several hours without reasonable suspicion.

EFF is working hard to persuade courts (and border agents) to adopt the limits set forth in the Riley decision for border searches of cellphones and other digital devices. In the meantime, what should you do to protect your digital privacy?

Much turns on your individual circumstances and personal risk assessment. The consequences for non-compliance with a command from a CBP agent to unlock a device will be different, for example, for a U.S. citizen versus a non-citizen. If you are a U.S. citizen, agents must let you enter the country eventually; they cannot detain you indefinitely. If you are a lawful permanent resident, agents might raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents may deny you entry entirely.

We recommend that everyone conduct their own threat model to determine what course of action to take at the border. Our in depth Border Search Whitepaper offers you a spectrum of tools and practices that you may choose to use to protect your personal data from government intrusion. For a more general outline of potential practices, see our pocket guides to Knowing Your Rights and Protecting Your Data at the Border.

Were also collecting stories of border search abuses at: borders@eff.org

And join EFF in calling for stronger Constitutional protection for your digital information by contacting Congress on this issue today.

Continued here:
The Bill of Rights at the Border: Fourth Amendment Limits on Searching Your Data and Devices - EFF

Sandy Huffaker / AFP / Getty Images

ID: 10826375

Four privacy-minded lawmakers have introduced legislation requiring law enforcement officials to obtain a warrant before searching phones belonging to US citizens, and prohibiting them from barring entry to Americans who decline to share their passwords at the border.

Americans Constitutional rights shouldnt disappear at the border, Senator Ron Wyden said in statement to BuzzFeed News. By requiring a warrant to search Americans devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans personal photos and other data.

Some law enforcement agencies have asserted broad authority to conduct searches of devices at the border, the lawmakers contend, in a way that circumvents the Fourth Amendments protections. The lawmakers argue that searching devices even after obtaining permission to do so is an invasion of privacy that should be tightly controlled.

The bill would require law enforcement to establish probable cause before searching or seizing a phone belonging to an American. Manual searches, in which a border agent flips through a persons stored pictures would be covered under the proposed law as well. But the bill does allow for broad emergency exceptions.

The government should not have the right to access your personal electronic devices without probable cause, Rep. Polis told BuzzFeed news in a statement. Whether you are at home, walking down the street, or at the border, we must make it perfectly clear that our Fourth Amendment protections extend regardless of location. This bill is overdue, and I am glad we can come together in a bicameral, bipartisan manner to ensure that Customs and Border Patrol agents dont continue to violate essential privacy safeguards.

The lawmakers say that the bill extends the privacy principles clarified in the Supreme Court decision Riley v. California. In that case, the High Court ruled that warrantless searches of electronic devices during an arrest are unconstitutional.

In a letter to Homeland Security in February, Sen. Wyden asked the agencys chief, Secretary John Kelly, to reveal how many times Customs and Border Protection personnel had asked for or demanded US citizens disclose their phone, computer, email, and social media passwords in the past several years. Sen. Wyden also asked Secretary Kelly to explain what legal authority allows the CBP to demand those passwords and how such demands are consistent with the Constitution and federal law.

The Senator asked Secretary Kelly to respond by March 20. But according to Sen Wydens office, Homeland Security has not written back.

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New Bill Would Outlaw Warrantless Phone Searches At The Border - BuzzFeed News

Watergate was just a private break-in by private actors. To preclude either Watergate or Cointelpro from ever occurring again, and in response to Justice Douglas warnings about illegal uses of electronic surveillance, Congress passed laws to conform surveillance to the twin mandates of the First and Fourth Amendment.

The means our government uses to protect the First and Fourth Amendment rights of Americans without sacrificing the countrys security needs for information gathering on foreign threats is a process known as minimization and masking. The point of the minimization and maskingprotocolsis to insure Americas eavesdropping on foreigners safeguards the constitutional rights of U.S. persons. These protocols are not merely internal rules nor discretionary guidelines; they are the necessary legislatively delegated means required to protect theprivacyrights of U.S. persons provided for by the Bill of Rights of the United States Constitution.Violating these provisions does more than violate mere regulatory restrictions; violating these provisions violates the Constitutional rights of Americans. That is why the law criminalizes such action when taken under color of law by rogue agents.

The law imposescriminalsanctions on government officials who engage in electronic surveillance under color of law except as authorized by statutes and governing regulations implementing those statutes. This same criminallawmakes a person guilty of an offense if she intentionally discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained in a manner not authorized by law. Notably, the law enforcementdefenseis limited to law enforcement or investigative officer cleared to do so by a search warrant or court order. The crime imposes a term ofimprisonmentup to sixty months in a federal prison.The point of the law criminalizing rogue agents either intercepting Americans conversations illicitly or unmasking they identities illegally is to protect against rogue government agents from abusing the most powerful surveillance means ever developed to invade the free speech, free thought, free expression and intimate privacy rights of all Americans.

According to both FBI DirectorComeyand NSA DirectorClapper, no warrant ever authorized the intercepts and electronic surveillance on a member of Trumps team. Yet, Chairman Nunesreportssuch intercepts occurred, identifying them as incidental. As law professor GlennReynoldsrecently noted, recent reports raise doubts on how incidental it was. And now,national security reporter Eli Lake ofBloombergNews reports note that former National Security Advisor SusanRice unmasked apparently some of Trump transition team members whentheir communications were caught in Americas Snowden-reported expansive surveillance web. It appears what Snowdenwarnedof how this wide net of eavesdropping would inescapably be misused by the Hoover-ites in the government may have cometrue.

The key question now is simple: what legal basis did Susan Rice have to order the unmasking of Trump team members? If the information was inadequate to justify a FISA warrant (or the Obama White House wanted to keep some members of the intelligence community out of the loop?), what permissible purpose justified the unmasking? How significant is this?

As the minimization and maskingprotocolscompel, the incidental information gathered by the NSA spying machine is legally protected from public disclosure and is to be used only for official purposes of National Security Agency/Central Security Services. All users with access must strictlyadhereto all classification and handling restrictions. Sound familiar?Who could ever imagine the Obama foreign affairs apparatusmishandlingclassified information? Who could ever imagine SusanRice, whose Secretary of State bid failed due to her Benghazi-implicated scandals, behaving badly? Who could ever imagine the Obama administration spying on Americans in dubious ways, like say, trying tosurveilthe Associated Press, spy on a Fox Newsreporter,eavesdropon his own allies, joke about drone bombing Wikileaks founderAssange, or trying to lock up morewhistleblowersthan all prior administrations combined?

Essential aspects of thoserulesrequire that intercepted communications between persons in the United States inadvertently intercepts during the collection of foreign communications will be promptly destroyed unless the Attorney General determine that the contents indicate a threat of death of serious bodily harm. As for communications that incidentally intercept an American and a foreigner, the information concerning U.S, persons must be disseminated in a manner which does notidentifythe U.S. Person. The only exceptions to this allowunmaskingwhen the communications concern varieties of probable cause of a crime, such as that the U.S. person is working as an agent of the foreign power to engage in criminal conduct, disclosing classified information without authorization, engaged in international narcotics activity, engaged in criminal activity, is the target of hostile intelligence activities of a foreign power, is terrorism connected, a threat to safety, or is an existing senior official. Of critical note, at all times theunmaskingmust made by the appropriate approval authority and must fit a need for the identity for the performance of his official duties. Note what is not present: unmasking for partisan aims, political purposes, or personal enmity. To be clear,we dont know why Susan Rice unmasked these identities, but given the political nature of this case, it is reasonable to question her motives.

Some defenders of Rice suggests she could label anything she wanted of foreign intelligence value, under the implementing regulatory protocols and thereby label it foreign intelligence information under the statute. The law is not so broad. Instead, the statute requires foreign intelligence information be necessary to the conduct of foreign affairs and to the persons position, and further employs a more limiting specific definition in the regulations in USSID for warrant-less seizures, as necessary to make it constitutional under the 4th Amendment. That definition is limited to criminal conduct type behavior, or its security equivalent. That is why the regulatory protocols give specific examples of the type of information that meet this standard of foreign intelligence value. What are those examples? Criminal-type behavior or imminent security risks. Why those restrictions? Because that makes it conform to the First and Fourth Amendment limitations on the intercept of Americans private political conversations. The examples are not prohibitive of like conduct being included, but it must belikeconduct e.g., criminal-type behavior or imminent-safety risk. Why? So it can be constitutional under the 4th Amendment, because the act of unmasking is an act of invading Americans privacy, covered by the 4th Amendment, and political speech in private is a right protected by the First Amendment. This is the biggest mistake the Obama defenders have been making, and reflects their lack of understanding of the laws Constitutional context and legislative history. Put most simply, neither the 1st Amendment nor the 4th Amendment has a talking to foreigners exception.

Hence, the reason Schiff was soshiftyon Jake Tapper on Sunday after Schiff read the unmasked intel at the invite of the White House last week. Was it because he saw unmasked identities on conversations that could not fit any of those very narrow, constricted, limited legal circumstances allowed? Susan Ricefeignedno knowledge of any incidental intercepts just a few a weeks back.Why say so if she thought it never happened and any unmasking was completely legal? (Note: A source close to Rice told CNN reporter Jim Sciutto that the idea that Ambassador Rice improperly unmasked the identities of Americans is false.)

Regardless, Susan Rice, and the Obama administration, appeared to have often skipped the Constitutional limits on their duties while in office; now might be a good time to buffup on the Fifth Amendment, and the right to counsel. Congress may be calling soon.

Robert Barnes is a California-based trial attorneywhose practice focuses on Constitutional, criminal and civil rights law. You can follow him at@Barnes_Law

This is an opinion piece. The views expressed in this article are those of just the author.

Here is the original post:
Why Susan Rice's Reported 'Unmasking' of Trump Officials Raises Very Serious Legal Concerns for Her - LawNewz

Rep. Luis Gutierrez (D-IL) told CNNs Chris Cuomo this morning that so-called Sanctuary Cities are actually Fourth Amendment Cities.

Heres how I see it yeah, they call them sanctuary cities. What I would say, Chris, is theyre Fourth Amendment cities.

Watch courtesy of CNN:

The DEA, the FBI, the ATF they get warrants right? They go and pick people up.

What [Immigration and Customs Enforcement] which is another federal law enforcement agency does is it wants to have people detained and wants the city of Chicago to go after people without any probable cause being submitted before the court and without a warrant.

If you supply a warrant to the city of Chicago, we will absolutely honor that warrant. But youve got to get a warrant.

Gutierrez is right. The Fourth Amendment says in language even a Republican should be able to understand, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is not what the Trump administration and Attorney General Jeff Sessions want to hear. Sessions actually said on Monday that the Constitution makes our nation less safe:

Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets.

According to Sessions, cities that stand by the United States Constitution cannot have federal money, certainly a bizarre and unreasonable stance for an administration to take, given the presidents vow to defend and support that Constitution.

Donald Trump, fourth Amendment, Fourth Amendment Cities, immigration, jeff sessions, Luis Gutierrez, sanctuary cities, Sanctuary Cities Are Fourth Amendment Cities, Trump Deportations, United States Constitution

Originally posted here:
Rep Gutierrez Tells CNN Sanctuary Cities Are Actually 'Fourth ... - PoliticusUSA

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On Wednesdays broadcast of CNNs New Day, Representative Luis Gutierrez (D-IL) argued, they call them sanctuary cities, what I would saytheyre Fourth Amendment cities.

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Gutierrez said, Heres how I see it, they call them sanctuary cities, what I would say, Chris, theyre Fourth Amendment cities. Why do I say that? If you supply a warrant to the city of Chicago, right, we will absolutely honor that warrant. But youve got to get a warrant. So think about it a moment, the DEA, the FBI, the ATF, they get warrants, right? They go and pick people up. What ICE, which is another federal law enforcement agency, does, is it wants to have people detained, and wants the city of Chicago to go after people without any probable cause being submitted before the court, and without a warrant.

Follow IanHanchett on Twitter @IanHanchett

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Dem Rep Gutierrez: 'Sanctuary Cities' Are Actually 'Fourth Amendment Cities' - Breitbart News