Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?
This is a ruling by a District Court. It could be appealed to the Circuit Court, and then to the Supreme Court.
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
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.
SCOTUS doesn't always make shitty decisions. Sometimes dozens of lower courts will all make a shitty decision and then it gets to SCOTUS and they somehow use their greater resources to produce a better decision contrary to everyone's expectations.
A 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. I don’t think we have much to worry about on this topic from the current court.
> 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.
Scalia’s originalism—the dominant strain today—is textualism, as explained in the very article you linked. Specifically it is originalism in terms of the original public meaning of the text, or in other words, textualism with the understanding that language changes over time.
Originalism would also have trouble because phones didn't exist when the Frames wrote or the 18th Century public read the Constitution.
Originalism is funny, by the way. By its tenets, if you don't like what the Constitution says, you can pass an Amendment with the exact same words as the Constitution but those words would have new, different meaning.
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:
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.
Alternatively, when the Supreme court composition has changed and shown a willingness to view old decisions as bad law, its a great time for a district court to break rank with precedent.
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
The article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or North Korea, but in the end the decision is, as a foreigner you don't have those rights, the government does what it sees fit.
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.
A continent where laws capable of sending you to prison for freely expressing certain opinions is your counter example to a lack of certain advanced individual rights in the U.S.
Didn't a former Greek finance minister recently get banned from Germany for political reasons? In France it is illegal to deny the holocaust but legal to deny the Armenian genocide.
Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments.
And with the data sharing, there's nothing stopping Canada from sharing with the US.
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.
They can demand, and you can refuse. However if you have Face ID or other biometric measures, they can (legally) force your finger onto the sensor or hold the phone up to your face to unlock it for their needs.
Passwords are personal data, faces and fingerprints are not, apparently.
>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.
That’s like saying if my house is protected by a passcode lock, the cops can just break down my door and walk in. Sure, they can, but there are clear rules of when they can enter and search my property without my consent. So, sure, they can enter my phone, but that doesn’t mean they have the right to in the first place.
The comment you’re replying to specifically discusses Fifth Amendment rights. The police would not generally be violating those rights by entering your house without a warrant. That would be a Fourth Amendment issue.
(One might argue that breaking your door without due process of law would be a Fifth Amendment violation. I have no idea what existing precedent says about that.)
Android has something similar - in the power menu [1] there's a "Lockdown" button which will lock your phone, disable biometrics, and disable showing notifications until you unlock with password.
Depending on your version and flavour of Android you may need to enable this "Show Lockdown Option" in your settings.
[1] Opening this varies - my pixel is power + vol up, some phones are hold power, etc.
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.
US v. Cano: "we hold that manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion". Neither "without individualized suspicion" nor "a showing of reasonable suspicion" are a warrant requirement. This is not a court "ruling against warantless border searches".
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
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.
I talked to several including the lawyer of Ashley Cervantes v US , a woman warrantlessly digitally raped (fingered) by doctors at the same hospital in search of drugs. Her case was publicized and far more egregious.
They essentially told me they'd given up.
I also reported a nurse who acted without consent to the nursing board. The board covered for her. And in Cervantes case, her doctor simply testified it was a he said she said and he pretty promised she consented.
The ACLU occasionally picks up cases but rarely and even rarer for an unsympathetic white guy.
It feels pretty hopeless honestly. They have QI,the courts, and every institution covers for them. At the border, CBP is god, even immune from 1A right to record them.
If the government broke the social contract so deeply to me, I can only imagine how I would react. You are truly a sovereign citizen now. The government has no legitimate authority over you anymore.
I had a cop search my car once and he “found” drug paraphernalia. I don’t do any drugs, ever in my life. I’ve seen what it does to people from a young age and I had never seen that paraphernalia ever before in my life; also, this car was brand new and I had only driven it less than two miles from the dealership. My only crime was speeding on an empty road in a brand new car, but this cop taught me they are all crooked fucks.
So, there’s probably missing information here, but I also believe it at face value.
> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Does a strip search also require a warrant though?
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.
So these criminals that have been performing the illegal searches. The next step is they'll be charged with false imprisonment, extortion, and conspiracy, right?
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
Well, it's more complicated than that under federal law. If there is no completely specific SCOTUS ruling on the issue then it comes down to whether there is a published opinion by the Circuit Court in the government official's area. If there is, then they are expected to have read it and taken it into account when they acted. If they violate that opinion then they are liable.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
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).
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
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)
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.
Sorry, but that's insane. You can't legitmizime criminalizing and imprisoning someone for the the crime of not having a time machine. You can legitimize the government making amends for its mistakes.
You do not need a time machine to look at the law as it stands, judge that the legality of an action is unclear, and then prudently choose to not do it. As I said, this is the dynamic everyone who is not a government employee has to deal with, and it encourages a dynamic of staying well away from the edge of the law.
In the 1980s the only border I knew where printed material was searched was the East German border. Back then the practice was considered outrageous.
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