Daily Archives: July 29, 2021

All of us deserve basic protection against government searches and seizures that the Constitution provides, including requiring law enforcement to get a warrant before it can access our communications. But currently, the FBI has a backdoor into our communications, a loophole, that Congress can and should close.

This week, Congress will vote on the Commerce, Justice, Science and Related Agencies Appropriations bill (H.R. 4505). Among many other things, this bill contains all the funding for the Department of Justice for Fiscal Year 2022 along with certain restrictions on how the DOJ is allowed to spend taxpayer funds. Reps. Lofgren, Massie, Jayapal, and Davidson have offered an amendment to the bill that would prohibit the use of taxpayer funds to conduct warrantless wiretapping of US Persons conducted under Section 702 of the FISA Amendments Act. We strongly support this Amendment.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) requires tech and telecommunications companies to provide the U.S. government with access to emails and other communications to aid in national security investigations--ostensibly when U.S. persons are in communication with foreign surveillance targets abroad or wholly foreign communications transit the U.S. But in this wide-sweeping dragnet approach to intelligence collection, companies allows government access and collection of a large amount of incidental communications--that is millions of untargeted communications of U.S. persons that are swept up with the intended data. Once it is collected, the FBI currently can bypass the 4th Amendment requirement of a warrant and sift through these incidental non-targeted communications of Americans -- effectively using Section 702 as a backdoor around the constitution. Theyve been told by the FISA Court this violates Americans Fourth Amendment rights but it has not seemed to stop them and, frustratingly, the FISA Court has failed to take steps to ensure that they stop.

This amendment would not only forbid the DOJ from doing this activity, it would also send a powerful signal to the intelligence agency that Congress is serious about reform.

Take action

Tell your member of Congress to support this amendment today.

The DOJ is opposing this amendment, saying that it would inhibit their investigations and make them less successful in rooting out kidnappings and child trafficking. Weve heard this argument before, and its just not convincing.

The FBI has a wide range of investigatory tools. It gives a scary list of potential investigations that it says might be impacted by removing its backdoor, but for every single one of them, the FBI can get a warrant or use other investigatory tools like National Security Letters. What the DOJ elides in protesting this narrow amendment is that the FBI has gotten used to searching through already collected communications of Americans overbroadly collected for foreign intelligence purposes for domestic law enforcement purposes. But it is not the purpose of 702 to save the FBI the trouble of getting a warrant (FISA or otherwise) for domestic investigations as the law and the Constitution requires before it collects needed information from the telecommunications and Internet service providers. The FBI is in no way prohibited from using its long-standing powerful investigatory tools due to this amendment - it just can no longer piggy-back on admittedly over broad foreign intelligence collections.

The government also elides that what it wants is to take advantage of Section 702s massive well-documented over-collection to have a kind of time machine. There is a possibility that information collected by the NSA will be deleted before the FBI can get a warrant, but the FBI has not submitted any public (or as far as we can tell, classified) evidence that this is a major problem in practice or would have resulted in thwarted prosecutions -- as opposed to just requiring a bit more effort by the FBI. But protecting Americans privacy is worth making the FBI follow the Constitution, even if it is a bit more effort.

The US Supreme Court has denied domestic law enforcement a general warrant collecting first a broad swath of Americans communications then sorting through later what it may need.That is what the FBI is defending here, it is what the FISC raised concerns about and it is what this amendment will rightfully stop.

Tell your member of Congress to support this amendment today.

Take action

Tell your member of Congress to support this amendment today.

Read more here:
Should Congress Close the FBI's Backdoor for Spying on American Communications? Yes. - EFF

The U.S. Supreme Court building. REUTERS/Jim Young

July 26, 2021 - The U.S. Supreme Court's October 2020 term opened with drama: Mourning Justice Ruth Bader Ginsburg, adjusting to a new colleague, bracing for the accompanying shift in the court's long-time balance of power, and anticipating a contentious election all in the pandemic-induced arena of telephonic arguments and conferences. But this term's controversy and discord ended up being more subtle than the beginnings foreboded.

The bulk of the court's decisions were characterized by consensus and cautious incrementalism. The court issued more unanimous decisions than last term (26 vs. 18), including in several controversial cases. But it often forged agreement on narrower grounds than expected likely reflecting the court's distaste for being seen as another political actor in a highly polarized and volatile time. In Fulton v. City of Philadelphia, for example, the court unanimously held that requiring a Catholic group to certify same-sex couples as foster parents violates the First Amendment but dodged more controversial and sweeping questions about the constitutional framework for religious exemptions.

And in Ford Motor Company v. Montana Eighth Judicial District Court, the court unanimously held that plaintiffs could sue Ford in the state where their car accident occurred, even though Ford hadn't made or sold the allegedly defective vehicle there, but left open broader questions about the ramifications of internet transactions for assessing personal jurisdiction. Similarly, in Mahanoy Area School District Board v. B.L., a highly anticipated First Amendment decision about a high school cheerleader's profanity-laced Snapchat rant, the court ruled 8-1 for the cheerleader but did not ban schools from punishing all online student speech.

Even in divided cases, the court often achieved agreement through narrow holdings and unexpected coalitions. Four conservative justices joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan to uphold the Affordable Care Act in California v. Texas but did so on technical grounds. And in Van Buren v. United States, the three youngest conservative justices teamed up with their more liberal colleagues to narrow the scope of a statute prohibiting unauthorized computer use.

In several cases, Chief Justice John Roberts and Justice Brett Kavanaugh voted with Justices Breyer, Sotomayor, and Kagan, leaving their other conservative colleagues to dissent on an array of questions, from what counts as a Fourth Amendment seizure to procedural technicalities about judicial review of agency decisions.

Against this backdrop, Justice Amy Coney Barrett's arrival produced less of a tidal wave than many predicted. She voted with the majority 91% of the time and cast the fifth vote in only four 5-4 decisions. Although one term is too early to make confident predictions, Justice Barrett's voting pattern so far suggests that she, like Chief Justice Roberts and Justice Kavanaugh, is more likely than the other conservatives to join her more liberal colleagues to forge narrow consensus.

To be sure, the court decided a number of cases that were polarized along ideological lines including upholding two Arizona voting-rights restrictions, invalidating the California Attorney General's policy requiring charities to disclose their major donors, expanding takings law to include a California regulation granting labor organizations access to employers' property, and rejecting further restrictions on sentencing juveniles to life without parole.

But the more surprising controversies this term came through the subtler avenue of separate writings, several of which were uncharacteristically caustic. While the vote was unanimous in Lange v. California, a case limiting the authority of the police to enter a home in hot pursuit of a suspect, Chief Justice Roberts' separate concurrence (joined by Justice Samuel Alito) reads more like a dissent, denouncing the majority decision as "absurd and dangerous."

And in Edwards v. Vannoy, Justices Kavanaugh and Kagan openly sparred in their majority and dissenting opinions. Edwards held that the jury-unanimity rule announced in Ramos v. Louisiana (a case from just last term) does not apply retroactively to habeas petitioners. Justice Kavanaugh accused Justice Kagan of hypocrisy for arguing that a decision she did not join applies retroactively, and Justice Kagan chastised Justice Kavanaugh for judicial "scorekeeping."

This term also saw Chief Justice Roberts' first lone dissent in his 16 years on the court. In Uzuegbunam v. Preczewski, the Chief Justice criticized the majority for "turning judges into advice columnists" by holding that a request for nominal damages can satisfy Article III standing.

The term's separate writings also suggest growing fractures among the conservative Justices. While Fulton's holding in favor of a Catholic group was unanimous, Justice Alito drafted a 77-page concurrence (joined by Justices Clarence Thomas and Neil Gorsuch) condemning the court for not going further. And in Caniglia v. Strom, the court issued an unusually concise four-page opinion unanimously holding that the so-called "community caretaking" exception to the Fourth Amendment's warrant requirement does not extend to homes. But Chief Justice Roberts, Justice Alito, and Justice Kavanaugh collectively spilled nearly thrice the ink penning their own separate concurrences to explain the limits of the court's decision.

In addition to muddying guidance for lower courts, all of this creates both challenges and opportunities for advocates before the court. Advocates still need to present strong doctrinal arguments, which can sometimes lead to sweeping positions. At the same time, knowing that some justices are thinking incrementally, advocates also need to be strategic about offering narrower approaches for deciding a case. That may include thinking about how to appeal to some of the justices to vote against stereotype in a way that builds institutional legitimacy but does not undermine their long-term worldview. This past term has shown us that there are often unexpected ways to count to five votes.

We may see this play out in high-profile cases next Term, in cases such as Dobbs v. Jackson Women's Health Organization. While the parties' arguments will put Roe v. Wade in the crosshairs, the court could take a more incremental approach and uphold the Mississippi law without rejecting Roe's holding that the Constitution provides some protection to a woman's decision to have an abortion.

Incrementalism and unexpected alignments may play out in business cases, too. City of Austin v. Reagan National Advertising of Texas is about the validity of Austin's distinction between on-premise and off-premise digital signs, which the plaintiffs claim impermissibly discriminates between signs based on their content. The court will not be writing on a blank slate: The cert grant in this case follows from confusion generated by multiple separate writings in the 2015 case, Reed v. Town of Gilbert.

While Reed was unanimous, three concurrences (representing the views of six Justices) expressed very different understandings of the court's opinion and, in particular, what it means for a distinction to be "content-based." Several justices likely will be concerned about respecting so recent an opinion, so the outcome of Reagan may hinge as much on first principles as on which side offers the least disruptive interpretation of Reed.

Other upcoming cases, like American Hospital Association v. Becerra, invite the justices to make broad or narrow pronouncements about agency deference, which in turn may impact regulatory challenges by businesses.

If Justice Breyer retires, which now seems unlikely before next spring, the voting permutations will shift again and advocates will (again) face the challenge of learning to persuade a new justice. One prediction seems safe, however: Replacing Justice Breyer would probably have the greatest impact on criminal justice cases, where Justice Breyer has been more pro-government than a nominee by President Biden is likely to be. Of course, if Congress decides to expand the court, all bets are off.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Shay Dvoretzky, a partner in Skadden's Washington, D.C. office, is the head of the firm's Supreme Court and Appellate Litigation Group. He represents clients in appellate matters in the U.S. Supreme Court, federal courts of appeals and state appellate courts.

Emily Kennedy is a Supreme Court and Appellate Litigation associate in Skadden's Washington, D.C. office.

See the rest here:
SCOTUS term marked by unexpected alignments and incrementalism - Reuters

Wow. We really are living in George Orwell's "1984." Or, at least, such a possibility is in sight.

The Democratic National Committee (DNC) is seeking to work with cell phone companies to prevent text messages including "misinformation" about COVID-19 vaccines from being delivered to recipients.

According to an article published by Politico, "Biden allied groups, including the Democratic National Committee, are ... planning to engage fact-checkers more aggressively and work with SMS carriers to dispel misinformation about vaccines that is sent over social media and text messages."

Details on how the fact checkers would detect so-called misinformation is currently scarce.

Let's speculate for a moment.

If the fact checkers are fact checking mass spammers, that is all well and good. Those robots are one hell of a nuisance.

But, are they intent on fact checking private text messages between friends and family?

If that is the case, it is truly terrifying and a blatant violation of the Fourth Amendment, which states "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."

When Edward Snowden blew the whistle on mass government surveillance almost a decade ago, the classified documents he leaked proved the NSA was vacuuming up data on a worldwide scale, including digital messaging.

But, the documents stated it was only metadata being collected, not the actual phone conversations or text messages themselves. Metadata includes the date and time the message, email or phone call was sent and received, and by whom.

Is this new plan apparently being pursued by DNC an indicator the Feds have now begin snooping into the actual contents of messages? It is a definite possiblity.

But, how could the Feds skirt the Fourth Amendment?

Well, say hello to "Third Party Doctrine." The legal doctrine states that citizens who voluntarily give information to third parties such as banks, phone companies, internet service providers and e-mail servers have "no reasonable expectation of privacy."

A lack of privacy protection laws allow the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment.

So, if the Feds declare this issue a threat to national security, they would likely have zero problems reading and blocking messages from private citizens it deemed "misinformation."

That is far too much power in the hands of the government.

It's time for our legislators to close this loophole and restore the right of every citizen to privacy, even in the digital realm.

We have such protections for our physical property, why not in the virtual world?

Read more:
DNC Working to Snoop on Text Messages - The Glasgow Courier - Glasgow Courier

In recent testimony before theU.S.House Subcommittee on Crime, Terrorism and Homeland Security,Heritage Foundation research fellow Kara Frederickwarned lawmakers thatfacialrecognitiontechnologyisvulnerable to misuseand portends a slippery slope to mass surveillance. She offered several recommendations tokeep the risk of misuse in America low.

Facialrecognitiontechnologyhas proven its worth in the field, Frederick noted, where some uses offacialrecognitioncomprise legitimate public safety imperatives.

Success stories [forfacial recognition software] include the detection of Marylands Capital Gazette shooter in 2018 and the detention of at least three individuals using false passports at Dulles International Airport... that same year.But, she added, the potential for abuse by agents of the state is high.

Risks are manifold,Frederick noted,including false positives generated by inaccurate algorithmsanddata security vulnerabilitiestohacks and leaks,whichopensavenues for the exploitation of immutable biometric data.

Frederick focused her testimony onthreespecificrisks: the circumscription of civil liberties and individual privacy, the outsourcing of surveillance to unaccountable private companies, and the potential integration of face recognition data with other personally identifiable information through the expansion of mass surveillance.

Frederick warned thatplans toexpand theoutsourcing ofdomestic digital surveillanceto private companies unencumbered by constitutional stricturesraises Fourth Amendment concerns.She citedthe FBIs use ofopen-sourcefacial recognition toolsto detain American citizensandlaw enforcements use ofsurveillance start upClearviewAIas examples.

In Fredericks assessment, such impulses to expand and outsource domestic surveillance can lead to more pervasive methods of monitoring by law enforcement.Shedescribeda mutually reinforcing digital surveillance ecosystemthatencompassesFRTand trends toward large-scale surveillance.As an example of these expanded surveillance practices,shecitedthe municipality ofPeachtree Corners, Georgia, which isusingAI-driven smartcameras to monitor social distancing and use of masks.And once these powers expand,she warned,they almost never contract.

Authoritarianabuse offacialrecognitiontechnologyabroadshould serve as a cautionary tale for American lawmakers, she said. Beijingusesfacial recognitionsystems tomonitoritsownpopulation, determine ethnicity, andimprisonUighurminoritiesinreeducation camps. Democratic protestors in Hong Konghid their facesandusedlasersto thwart such monitoring.Russianofficials have usedfacialrecognitiontechnologyto identify and throwdissidentsin jail as recently as this year.

To constrain abuse and bound expansion by government agencies, a secure and privacy-protecting framework for the use of digital data obtained byfacialrecognitiontechnologyis requisite, Fredericktestified.

Toprotect citizens privacy,Frederickrecommended thatCongress:

Establish a federal data protection framework with appropriate standards and oversightgoverning how U.S. agenciesfederal, state, and localmaycollect, store, and sharefacialrecognitiondata.

Ensure any U.S. identity management system used by government actors is secure and reliable, based on proper standards and measurements, and in accordance withNational Institute of Standards and Technologyguidelines.

Enforce data protection inspections and oversight among all parties.

Combined with near-historic low levels of public trust in the U.S. government to do what is right, Frederick cautioned that the the unfettered deployment of these technologies by governmententities will continue to strain the health of the body politic without immediate and genuine safeguards.

Fredericks full testimony, delivered during the July 13subcommitteehearing titled Facial Recognition Technology: Examining Its Use by Law Enforcement,can befound here.

Originally posted here:
Heritage Expert Testifies to Congress on Facial Recognition Technology - Heritage.org

The headline on Fred Johnsons column in last weeks Citizen declared, Whole lot of misinformation going around. How true that headline is, and how apt it applies to the misinformation that Fred Johnson spreads around weekly.

Usually, I just roll my eyes at Johnsons poppycock and move on under the admittedly optimistic assumption that well-informed readers recognize that his tirades constitute nothing but a mish-mash of misleading right-wing talking points. This week, however, I felt moved to reply since the very opening sentences of his column (July 22) began with easily debunkable historical misinformation.

Johnson wrote: The Biden administration has invented a new word. The word is misinformation. According to the Merriam-Webster dictionary site, the first use of the word misinformation dates from 1604. Ill admit that Joe Biden is old but hes not THAT old. In 1930, 12 years before Joe Biden was born, the American Public Health Association, published a cartoon showing a man labeled Anti-Vaccinationist about to step off a cliff labeled misinformation into a sea labeled smallpox. So much for Biden inventing a new word. So much for Fred Johnsons credibility.

Johnson cites Tucker Carlson to define misinformation. Having Carlson define misinformation is like having the Kardashians define class and dignity. Johnsons two muddled paragraphs about the Cuba demonstrations seem to imply that Biden blamed the recent demonstrations on COVID. Only by using the misinformation tactic of taking words out of context, something that Carlson does routinely, can one make that claim. Biden actually said, We stand with the Cuban people and their clarion call for freedom and relief from the tragic grip of the pandemic and from the decades of repression and economic suffering to which they have been subjected by Cubas authoritarian regime.

Johnson then moves on to draw information from the American Association of Physicians & Surgeons, an extreme right-wing association that has been purveying misinformation since 1943. As of 2020 the AAPS managed fewer than five thousand members from the nations more than a million medical doctors. Well before the COVID pandemic, the AAPS called Medicare evil, opposed the establishment of Medicaid, and ignored overwhelming scientific evidence about the effectiveness of the measles vaccine. (See The Atlantic, Feb. 25, 2020). If you think that Medicare is evil and you like measles, perhaps you are Fred Johnsons intended audience.

Johnson repeats the AAPS position that there is no Constitutional authority for the federal government to be involved in medicine. Ill make a deal with Fred: I wont cite Constitutional scholars on medical matters if he wont rely on the AAPS for constitutional interpretation. The AAPS and Johnson neglect to tell you that the federal government has been involved in health and medicine throughout more than two centuries of American history and that the U.S. Supreme Court has never agreed with AAPS assertions that such involvement is unconstitutional.

For example, the predecessors of the U.S. Public Health Service, which acquired its present name in 1912 under a Republican president, date to 1798. Republican U.S. Grant appointed the first surgeon general in 1871. The Meat Inspection Acts and the Pure Food and Drug Act (which led to the FDA) date from 1906 under Republican Teddy Roosevelt. Since WWII, Medicare, Medicaid, and the Affordable Care Act have all stood Constitutional challenges in court, albeit with the exception of a few details not affecting the fundamental issue of the federal governments authority to be involved in medicine and health. The AAPS may think that all of these historic programs were unconstitutional, but scarcely anyone else other than Fred Johnson and Tucker Carlson would agree.

Johnson wrote that the Biden administration wants to send agents door-to-door to promote vaccination. His use of the scare word agents falsely implies that these door knockers would be federal employees when, in fact, they would be volunteers. Johnson parrots the AAPS accusation that encouraging people to get vaccinated would violate medical confidentiality and Fourth Amendment protections from unreasonable search and seizure. Nothing could be further from the truth. There is no violation of privacy or confidentially involved. The hope of the proposal is that people will respond positively to personal appeals from volunteers who urge them to get vaccinated for their own good and the good of others. However, residents remain perfectly free to tell volunteers that their vaccination status is none of your business or to just ignore the knock on the door in the first place. Ipso facto, no issue of privacy or confidentiality ensues.

The Biden-proposed campaign to encourage vaccination is modeled after the thousands of mothers who went door-to-door during the early days of the March of Dimes, which Franklin Roosevelt founded in 1938. Incidentally, the success of the March of Dimes in raising money for medical research helped lead to the polio vaccine. That is why FDR s image has since 1946 been on the dime. I wonder if Johnson thinks that is unconstitutional too.

To be sure, Johnson is correct that the First Amendment prohibits governmental entities from censoring speech, even if the content is factually incorrect or misleading. (That is provided, of course, that the words dont constitute triggers to action like the proverbial false cry of fire in a crowded auditorium.)

Fred Johnson, the AAPS, Tucker Carlson, and their ilk are free to continue to disseminate misinformation as they have been doing all along. However, contrary to what Johnson writes, the 1st Amendment does not prohibit governmental agencies from countering misinformation by disseminating accurate information. Nor does it prohibit the government from encouraging others to do the same.

Most importantly, the 1st Amendment guarantees private entities and private individuals the right to call out poppycock when they see it. Im exercising that right today.

Here is the original post:
The right to call out misinformation | Opinion | morgancountycitizen.com - Morgan County Citizen

Shackled to a bench at the San Ysidro Port of Entry, Jeff Valenzuela was ordered by border officers to unlock his cellphone or else it would be seized.

He complied and watched helplessly as it disappeared into a back room, where he assumes officers spent the next 45 minutes downloading its contents.

The phone was returned, and the intimate details of his life and the lives of those close to him were now in the hands of the U.S. government.

Valenzuela, a U.S. citizen and rights-group volunteer living in Tijuana, had been detained as part of a federal operation against a migrant caravan camped at the border. He was one of the nearly 41,000 international travelers whose electronic devices were searched at U.S. ports of entry in fiscal year 2019.

The cellphones of international travelers and all of their digital contents have long been fair game for U.S. border and customs officials to rifle through for inspection, for any reason, at any time, just as they would a purse or backpack.

Not anymore.

The 9th U.S. Circuit Court of Appeals, in an opinion stemming from a San Diego case, has significantly narrowed the ability of border officers to conduct warrantless searches of cellphones carried by international travelers, whether it be at land, air or sea ports of entry.

The ruling prohibits the kind of fishing expeditions for intelligence or evidence of a crime past or future, border-related or not that prompted the kinds of warrantless searches in border zones that Valenzuela experienced in December 2018.

Instead, border officers now must limit their search for one thing: digital contraband defined largely by the courts as child pornography, according to the ruling.

The court ruling was issued in 2019, but it was only recently confirmed as law.

Late last month, the U.S. Supreme Court denied the governments petition to take up the case, meaning the 9th Circuits ruling is binding but only in its jurisdiction. That includes nine states and two territories in the western U.S., including California, Arizona, Washington and Hawaii.

It really is tightening the screw to increase your protection from searches, said Ryan Stitt, an attorney with Federal Defenders of San Diego who was involved in the case.

The ruling has a potentially big implications in San Diego, home to the busiest land border crossing in the Western hemisphere a portal not only to millions of legitimate travelers like Valenzuela but also part of a well-worn route for drug and human smugglers.

Privacy advocates have hailed the case as a win for civil liberties, while the U.S. government and some federal judges say the decision makes the country less safe, letting potential evidence of drug smuggling to visa fraud to terrorist activity slip past border gatekeepers.

The ruling also adds to a confusing matrix of clashing court opinions on the issue across the country. In practice, it could mean you are subjected to one set of rules returning from an international flight in San Diego and another in Boston.

The case stems from the 2016 arrest of Miguel Cano, who was caught at the San Ysidro Port of Entry with 31 pounds of cocaine hidden in a spare tire. Cano, a lawful permanent U.S. resident living in Tijuana, told investigators that he had crossed into San Diego to try to find work as a carpet installer. He denied knowing there were drugs in his vehicle.

Two agents from Homeland Security Investigations took his cellphone. First one of the agents conducted a brief manual search, noticing the call log and lack of text messages.

The agent later explained the search was to find some brief investigative leads in the current case and to see if theres evidence of other things coming across the border, according to the court record.

Then the other agent looked in the phone, writing down some of the numbers in the call log on a piece of paper and taking a photo of two text messages that had just come in.

The agent then conducted a forensic search, hooking up the device to Cellbrite software, which allows the agent to access and download data including text messages, contacts, call logs, videos and photos.

Cano was later indicted with importation of cocaine. He was convicted following a second trial; the first trial ended with a hung jury.

A three-judge panel of the 9th Circuit deemed the searches a violation of Canos Fourth Amendment right against unreasonable search and seizure.

An international air traveler is cleared by a U.S. Customs and Border Protection Officer and is approved to enter the United States at Dulles International Airport in this file photo.

(Paul J. Richards/AFP/Getty Images)

The Fourth Amendment largely requires a warrant to search someones possessions including cellphones, according to a 2014 landmark Supreme Court ruling. But certain exceptions have historically existed at the border, where privacy concerns and public policy interests have long collided.

Courts recognized that the United States has a long-standing right to protect itself by examining and controlling who and what comes into the country, and that people give up some expectation of privacy when passing through.

The whole idea is this strong public policy interest against contraband being smuggled in. It gives border officials greater authority to do warrantless searches, said Stitt, Canos attorney at trial. The question becomes how does that apply in the 21st century to digital contraband?

According to the 9th Circuit, the answer is: narrowly.

The court held that detection of ... contraband is the strongest historic rationale for the border-search exception and that the exception does not stretch to include search for evidence of contraband that is not present at the border or for evidence of past or future border-related criminal activity.

The opinion penned by Circuit Judge Jay Bybee, a Bush nominee concluded that cellphone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. He was joined in his opinion by Circuit Judge Susan Graber, a Clinton nominee, and Judge Douglas Harpool, an Obama nominee to the Missouri district bench who sat on the 9th Circuit panel by designation.

Digital contraband has largely been defined in related court cases as child pornography, although in at least one legal filing U.S. Customs and Border Protection said it considers classified government material and malware to be in that category as well.

What that means in practical terms: Border and immigration officers can manually search the devices of anyone crossing, without any level of suspicion but they must only search for digital contraband, and only in places on the phone where such material would be stored.

The court imposed even stricter limits on forensic, or advanced, searches, which involve officers hooking up the phone to extraction software. To do that, officers must have reasonable suspicion a lesser standard of suspicion than probable cause, but still based on some fact or circumstance that digital contraband exists on the phone. The search must still be only for that contraband.

If border officials want to investigate a crime, they need to get a search warrant.

What Cano is really doing is making it so that they can only search for contraband on a phone, and really only child pornography, Stitt said. Before, in CBPs view, they could search for anything, for any reason crossing the border, to any extent. This narrows that.

What happens if a border officer comes across evidence of a crime while searching for contraband? That is still somewhat of an open legal question, said Nathan Wessler an attorney with the American Civil Liberties Union. But the general rule should be to stop the search immediately and obtain a warrant to continue, he said.

CBP revised its directive on electronic device searches in 2018 to more closely adhere to some of the legal rulings being handed down, including requiring reasonable suspicion in order to conduct an advanced search.

A CBP spokesperson said in a statement that the agency is continuing to review its directive and to conduct searches in accordance with statutory and regulatory authorities and applicable judicial precedent, including the Cano decision.

Department of Justice attorneys argue the 9th Circuits ruling is an outlier when compared to past and current legal decisions on border searches.

The courts decision confuses and disrupts the day-to-day work of border officials who, nationwide, inspect hundreds of millions of arriving travelers and examine tens of thousands of electronic devices each year, attorneys argued in their petition to the Supreme Court.

Of the more than 410 million travelers processed through air, land and sea ports of entry nationwide in fiscal 2019, 35 percent came through the 9th Circuits jurisdiction, according to court filings.

More than 51.6 million of those travelers came through the San Ysidro and Otay Mesa ports of entry, according to U.S. Department of Transportation border crossing data.

CBP officials stressed that the number of device searches make up a small fraction less than a hundredth of a percent of the total number of crossings.

On rare occasions, CBP officers may search a travelers mobile phone, computer, camera and other electronic devices during the inspection process, a CBP spokesperson said. These searches have helped detect terrorist activity and other national security matters, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud.

But these searches have touched a broad spectrum of travelers not just those caught with illicit loads.

The final group of migrants traveling in large numbers for safety arrives in Tijuana from Central America, with some celebrating their arrival by climbing atop the U.S.-Mexico border fence at Playas de Tijuana in November 2018. Several border activists, journalists and lawyers were targeted by border authorities who questioned them about their involvement with the migrants.

(Alejandro Tamayo/The San Diego Union-Tribune)

Journalists, political activists, lawyers and people in certain religious and ethnic groups have reported being told to hand over their devices at various ports of entry across the country, for no specific reason.

In 2018, a secret joint U.S.-Mexico operation targeted human rights activists, immigration attorneys and journalists who were crossing the border frequently to interact with the large Central American migrant caravans that had arrived in Tijuana. Federal authorities have said the individuals were suspected of colluding with the migrants or had intelligence on criminal events accusations many of the targets have strongly denied.

Thats why Valenzuela, a volunteer with migrant-rights group Pueblo Sin Fronteras and a photographer, was subjected to two cellphone searches upon crossing into San Diego.

The first time, he was asked to show plainclothes officers his photo reel, to check if he had child porn on his phone, they told him. They made him pause at certain photos which depicted migrants and had nothing to do with children or pornography and they asked him to explain the images, he said.

A few days later, he was detained, this time in handcuffs, and questioned again. When they ordered him to unlock the phone, he felt cornered and didnt want to lose his phone, so he agreed. Then it was taken out of his sight.

Jeff Valenzuela was among several activists and journalists who were targeted by a federal operation investigating the arrival of large numbers of Central American migrants in 2018. He had his phone searched twice at the San Ysidro Port of Entry.

(Nelvin C. Cepeda/The San Diego Union-Tribune)

It was incredibly violating. I knew I obviously hadnt done anything, I wasnt in there because Id committed some crime, Valenzuela said. I was more concerned about other peoples information that might have been compromised.

The Department of Justice wanted the Supreme Court to review the case for another reason: to settle the law on an issue that has been decided differently around the country.

One lawsuit, argued in Boston by the ACLU, involved 10 U.S. citizens and one green card holder who had their phones or other electronic devices searched while returning from travel abroad. Some of them had their devices confiscated for weeks or months.

The plaintiffs included journalists, an artist, a former Air Force captain, a NASA engineer and a Muslim woman who said it was against her religious belief to have a male officer view photos on the phone of her without her headscarf.

We know the government uses various profiles to try to identify people to subject to searches, said Wessler, who was involved in the case. Racial and religious profiling happens.

In February, the 1st U.S. Circuit Court of Appeals which includes the northeastern states of Massachusetts and Maine, as well as Puerto Rico sided with the government in a sharply contrasting decision, saying it cannot agree with the narrow view of the border search exception in Cano.

The ruling concludes that border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of any of the violations investigated by CBP or U.S. Immigrations and Customs Enforcement.

That potentially makes for very different rules for someone traveling internationally with a cellphone in California as opposed to Maine.

In Cano, the DOJ asked the case to be reheard en banc or by a larger, 11-member panel of the court but the request was denied after it failed receive a majority vote of non-recused, active judges.

Six judges, all Bush or Trump nominees, dissented, saying the case should be reheard to correct the panels errors and that the decision makes our borders far more porous and far less safe.

The government filed a writ of certiorari to the Supreme Court, but the court declined the petition on June 28.

See the original post here:
Returning from travel abroad? A court put limits on border officers rummaging through your phone - The San Diego Union-Tribune