undefined | Better HN

0 pointsxoa3y ago0 comments

There is a split here between law and practicality for many people I guess. As a matter of law for US Citizens it doesn't matter whether there is an "exemption" or not: a US Citizen may not be denied entry at a land port of entry, period. Their property can potentially be taken but only with legal process and it can't be kept indefinitely without violation of law. If they're wanted for a crime they can of course be arrested from which the normal legal process within the US plays out, but all the normal requirements are there too. They can be asked additional questions and put through more inspection, but with citizenship established that's it. So if someone simply refuses to answer any questions or unlock their phone and there is no further reasonable cause there is nothing the CBP can legally do to keep them out.

But as a practical matter most people don't want to spend an extra hour or hours or even extra minutes going through a more detailed search for contraband or whatever else. Most don't want to, aren't ready for and/or can't afford having electronic devices held for days/weeks before getting them back. A lot of people simply don't know their rights. So without an explicit exemption a lot of Americans undoubtedly would submit "voluntarily".

So the ACLU isn't wrong (and their actual page is appropriately more nuanced [0]): Americans aren't "subject" in the legal sense to this, or to any other questions beyond what's needed to establish citizenship. Having done so they may politely insist on entry and refuse anything else, demand to see a supervisor if an agent persists in unconstitutional questioning, submit any property required while in response demanding receipts and pursuing complaints or legal action afterwards (or both), and at the end of the day the CBP must put up or shut up: let them through or arrest them, and for the latter will have to meet the legal standard and it'll all play out domestically. But at the same time the financial and other burdens this imposes are very real and serious.

Best practice would be to go as "clean" through the border as possible, preferably with a dedicated phone that only has minimum necessary travel and navigation data on it and nothing else, no logging into any personal accounts of any kind, no bookmarks or the like, and cheap enough to not care about losing it. Then one can just let border agents look through whatever as much as they'd like, or let them take it and just write it off. Not everyone can or knows to even consider that possibility though. And of course the vast majority never have a problem, so it's insurance against a "black swan event" for the average person (those who suspect they'll be subject to heightened scrutiny legally or not may already do this). It's valuable to note both the exact state of the law and when the practical effect is different.

----

0: ACLU: "If you are a U.S. citizen, you need only answer questions establishing your identity and citizenship, although refusing to answer routine questions about the nature and purpose of your travel could result in delay and/or further inspection." Or later "U.S. citizens have the right to enter the United States, so if you are a U.S. citizen and the officers’ questions become intrusive, you can decline to answer those questions, but you should be aware that doing so may result in delay and/or further inspection".

So the ACLU does acknowledge a practical cost to insisting on your rights, they aren't merely blindly saying "not subject".

0 comments

4 comments · 2 top-level

jameshart3y ago· 2 in thread

And of course non-Citizens presenting for entry at the border are subject to the coercion that refusal to comply will likely result in entry being refused. Noncitizens do actually still have human rights (something Americans often seem to forget - ‘I can’t believe they used a dronestrike on a US citizen’, etc)

But take the example of a person who has been issued a visa, looking to enter the US with the intent to immigrate legally, doing everything by the book. On their phone they likely have all the privileged communications with their immigration attorney - all the conversations about which visa strategy to pursue, etc. now they’re at the border, they can be pressured by an agent into handing that data over ‘voluntarily’. What protections does that person have as to how that information is used in respect of their future immigration application? Are they entitled to due process protections? Have they waived attorney client privilege? Once they later become a citizen, is that data still on file and searchable by DHS?

Or a green-card holding US resident, returning home from a business trip, with corporate data on their phone - can they refuse to hand it over, and risk being refused entry and heap or fixing their US residency? If they can’t, does that mean some employers might refuse to hire green card holders to mitigate such risks?

This data collection is egregious even when applied to noncitizens.

xoaOP3y ago

Sorry, 5 comments in a few hours triggered HN's rate limiting, "sorry you are posting too fast", so I couldn't reply earlier. Not sure if you'll still see this but since I wrote it anyway:

>And of course non-Citizens presenting for entry at the border are subject to the coercion that refusal to comply will likely result in entry being refused. Noncitizens do actually still have human rights

Certainly, but this sub-thread is specifically about Americans, so that's what I was sticking to. That said yes, non-citizens do not have any right of entry. However, that is the norm worldwide not the exception. There is no universal "human right" to enter any country except as a refugee or someone seeking asylum per ratified treaties or domestic law. The basic idea of a "sovereign nation" is somewhat bound up with the capability of border control and distinguishing the nation from the world. There are lots and lots of very reasonable disagreements on what said controls should be, what exceptions, and so on. But "completely open borders" is a fairly niche position. This at least isn't merely a US thing, I would exercise some level of caution for international travel anywhere on the planet when it comes to personal property and devices, or even just my own liberty. Different countries can have radically different legal regimes. If any of us are traveling somewhere we don't have any inherent legal right to be, then naturally there is some leverage there in terms of what conditions might be set for our entry.

>This data collection is egregious even when applied to noncitizens.

I do agree (and I think it's generally agreed upon in civil liberties circles) that the global increase in data collection, storage, and processing capabilities is not merely "worrisome" but prone to abuse and in fact actively abused. It's a bad thing. I'd personally go farther in that I lean towards the idea that a lot of modern electronic devices should be considered almost as "exo cortexes", extensions of our minds that should have the same kind of protection as the contents of our minds (and that protection should be total). This is another area where tech has raced ahead of societal reckoning.

As far as individual reactions though I'd say the same thing as for business secrets or whatever else: the best thing to do is to just not have it on you, have no ability to get it either, have other humans who know your travel plans and can check on you, know what rights you do have, where to make complaints, and most of all have fallbacks if things don't work out. That alone is very empowering. If some data is vitally important and private to the level you describe, perhaps stick it onto an encrypted image on a USB stick and mail it separately or something along those lines. Or via private online transfer of which there are many, but something completely out of band from your own physical person.

jameshart3y ago

100% agreed. Stipulated, countries can do anything they like to people who ask to enter. Basic respect for the property, civil liberties, dignity and universal human rights of people petitioning to enter the country, though, is not tantamount to 'completely open borders'. I think we can all agree that even if there are not legal constraints on the indignities and rights violations which a border entry officer can subject an applicant to, there should be some ethical ones.

The danger at the border is that a person might be admitted who is not who they say they are, that they might bring with them some goods that shouldn't be brought in to the country, or that they might be planning to do something that exceeds the terms of their entry visa, or is otherwise undesirable. That last case is the tricky one, because it amounts to trying to detect a thoughtcrime.

Of course if you're trying to prevent thoughtcrimes, it would be useful to see into all of a person's relationships, private communications, and online activities. But we have to draw a line somewhere for what information it is acceptable for border agents to acquire to render their judgements. And even if we allow that accessing electronic devices at the border helps with that determination of 'intent' at the moment of entry, keeping all that data (not just the subset that was evaluated as relevant to the judgement) for years beyond that determination seems completely unnecessary.

And it's not necessary, because we all know that if you allow a border agent to search someone's phone, they can find a reason to prevent entry. But that's unnecessary, because a border agent can already deny entry for essentially any reason they like. There's no need to have access to a phone to generate pretext. But the difference between 'Access denied' with a note on the file to the effect that they thought the answers you gave to their questions were inadequate, versus 'access denied' with a complete copy of your digital identity attached to the file and a flag pointing at a set of facebook messages you exchanged a few years ago.... is pretty vast.

kevin_thibedeau3y ago

CBP will happily dismantle your car and give it back to you in pieces.

j / k navigate · click thread line to collapse