We didn’t really need more precedent assuring us our rights don’t mean anything at the borders, but we got it anyway.

Within 100 miles of any US border (and that includes international airports), courts have generally ruled that rights are optional. If they seem to be getting in the way of “securing” the border, they have to go. And that’s why intrusive device searches have increased steadily in recent years, despite the Supreme Court’s 2014 Riley decision. That ruling said warrants were required to search cell phones because cell phones, unlike someone’s trunk or pants pockets, contained a wealth of personal and private information previously unseen in the history of the nation.

Given the rationale for the warrant requirement, you’d think courts would extend it to cover the nation’s borders. But no court has. When it comes to border searches, Riley simply doesn’t apply.

Not every court has reached this conclusion. A federal judge in the 2nd Circuit said Riley applied at the border. But that ruling was never ratified at the appellate level, so it hardly changes things in the Second Circuit.

The Ninth Circuit Appeals Court — which covers the largest amount of southern border (which is where pretty much all the intrusion takes place) — did place some restraints on warrantless border device searches, limiting them to searches for “contraband.” How much that changed anything is unknown, but it was a small step further than any other circuit has been willing to go.

The circuit with the second largest amount of border territory (the Fifth Circuit) hasn’t had any qualms about eradicating the Fourth Amendment at border crossings. An unequivocal “no warrants needed” was handed down by that circuit late last summer.

The Seventh Circuit Appeals Court recently revisited this issue. Its earlier ruling on the issue was pretty much a punt. The court decided it didn’t need to deliver any ruling on the issue at that point because it could use the “good faith” release valve to sidestep anything approaching precedent.

The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

That’s how it went in April 2019. Here’s how it’s going now:

The “longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.” United States v. Ramsey, 431 U.S. 606, 619 (1977). That history leads us to join the uniform view of our sister circuits to hold that searches of electronics at the border—like any other border search—do not require a warrant or probable cause, and that the kind of routine, manual search of the phone initially performed here requires no individualized suspicion. We affirm.

That’s from the opening of the appeals court decision [PDF], one that portrays a CBP agent’s trawl through a traveler’s phone as a “routine, manual search,” which included demanding (and obtaining) a passcode, digging through images stored on the phone, and unlocking (with the provided passcode) another application where more images of child sexual abuse were discovered.

The traveler (and the person seeking to suppress the evidence discovered on his phone) is Marcos Mendez, a US citizen who had previous arrests for solicitation of a child and CSAM possession. So, he was already on the CBP radar. That being said, it’s a bit chilling to realize this is what the CBP thinks is an indicator of child sexual abuse — something the Seventh Circuit tacitly endorses by placing it in the decision without further comment:

Mendez also fit the profile for child-pornography offenders: a single adult male traveling alone.

Well… OK, then. The supposed connective tissue was the fact that Mendez traveled alone to Ecuador, which is apparently just as suspicious because… well… rank speculation, I guess?

[M]endez was returning from Ecuador, which CBP officers classified as a potential child trafficking source country.

Couldn’t literally any country be considered a “potential child trafficking source country?” I mean, we’re just talking potential here. It’s not other countries, which are known destinations for people seeking to engage in sex with minors. All this says is that Ecuador, like every other country in the world, has minors in its population and those minors have the potential to be trafficked for sex.

Anyway, the Seventh Circuit isn’t going to let itself get bogged down by questionable assertions about suspicion asserted by our valiant border officers. Instead, it’s just going to get down to business aligning itself with every other circuit by going on (permanent) record with a free pass on constitutional violations anywhere people might enter or exit the United States.

And, in doing so, the court says things the Supreme Court didn’t say about the Riley decision, even as it uses a very selective direct quote. According to the Seventh Circuit, Riley doesn’t apply at the borders because the incident underlying that historic decision did not occur at the border.

Riley involved the search incident to arrest exception and “carefully tailored its analysis to that context.” Wood, 16 F.4th at 533. What is unreasonable after arrest may be perfectly reasonable at customs, as Riley itself anticipated. See Riley, 573 U.S. at 401–02 (“[O]ther case-specific exceptions may still justify a warrantless search of a particular phone.”)

But the Seventh Circuit’s blanket exception for border searches ignores a crucial part of the very decision it quotes:

“[O]ther case-specific exceptions…”

This ruling has nothing to say about specifics. While it’s certainly true a known sex offender will receive greater scrutiny when entering or exiting the country, the ruling here applies this line of thought to everyone crossing borders, whether or not any reasonable suspicion exists to justify the seizure and search of someone’s phone.

There’s evidence here this search was likely justified under the lower level of constitutional protections at our nation’s borders, but the Seventh Circuit looks at a case-specific exception and makes it a blanket exception by refusing to undo precedent that says federal officers can pretty much do whatever they want, so long as it happens within 100 miles of any border crossing.

So, it’s not a great ruling or even a good one. It just is. And because no appellate circuit has been willing to upset this free-for-all at the border by instituting a warrant requirement, every other appellate circuit thinks it’s OK to ignore the greater message of the Riley decision (that being that almost any search of a person’s phone is intrusive) in favor of just keeping their heads down and allowing the status to remain quo.

Last year Mozilla released a report showcasing how the auto industry has some of the worst privacy practices of any tech industry in America (no small feat). Massive amounts of driver behavior is collected by your car, and even more is hoovered up from your smartphone every time you connect. This data isn’t secured, often isn’t encrypted, and is sold to a long list of dodgy, unregulated middlemen.

Last March the New York Times revealed that automakers like GM routinely sell access to driver behavior data to insurance companies, which then use that data to justify jacking up your rates. The practice isn’t clearly disclosed to consumers, and has resulted in 11 federal lawsuits in less than a month.

Now Ron Wyden’s office is back with the results of their preliminary investigation into the auto industry, finding that it routinely provides customer data to law enforcement without a warrant without informing consumers. The auto industry, unsurprisingly, couldn’t even be bothered to adhere to a performative, voluntary pledge the whole sector made in 2014 to not do precisely this sort of thing:

“Automakers have not only kept consumers in the dark regarding their actual practices, but multiple companies misled consumers for over a decade by failing to honor the industry’s own voluntary privacy principles. To that end, we urge the FTC to investigate these auto manufacturers’ deceptive claims as well as their harmful data retention practices.”

The auto industry can get away with this because the U.S. remains too corrupt to pass even a baseline privacy law for the internet era. The FTC, which has been left under-staffed, under-funded, and boxed in by decades of relentless lobbying and mindless deregulation, lacks the resources to pursue these kinds of violations at any consistent scale; precisely as corporations like it.

Maybe the FTC will act, maybe it won’t. If it does, it will take two years to get the case together, the financial penalties will be a tiny pittance in relation to the total amount of revenues gleaned from privacy abuses, and the final ruling will be bogged down in another five years of legal wrangling.

This wholesale violation of user privacy has dire, real-world consequences. Wyden’s office has also been taking aim at data brokers who sell abortion clinic visitor location data to right wing activists, who then have turned around to target vulnerable women with health care disinformation. Wireless carrier location data has also been abused by everyone from stalkers to people pretending to be law enforcement.

The cavalier treatment of your auto data poses those same risks, Wyden’s office notes:

“Vehicle location data can reveal intimate details of a person’s life, including for those who seek care across state lines, attend protests, visit mental or behavioral health professionals or seek treatment for substance use disorder.”

Keep in mind this is the same auto industry currently trying to scuttle right to repair reforms under the pretense that they’re just trying to protect consumer privacy (spoiler: they aren’t).

This same story is playing out across a litany of industries. Again, it’s just a matter of time until there’s a privacy scandal so massive and ugly that even our corrupt Congress is shaken from its corrupt apathy, though you’d hate to think what it will have to look like.

The Fourth Amendment exists for a reason. It’s supposed to protect our private possessions and data from government snooping, unless they have a warrant. It doesn’t entirely prevent the government from getting access to data, they just need to show probable cause of a crime.

But, of course, the government doesn’t like to make the effort.

And these days, many government agencies (especially law enforcement) have decided to take the shortcut that money can buy: they’re just buying private data on the open market from data brokers and avoiding the whole issue of a warrant altogether.

This could be solved with a serious, thoughtful, comprehensive privacy bill. I’m hoping to have a post soon on the big APRA data privacy bill that’s getting attention lately (it’s a big bill, and I just haven’t had the time to go through the entire bill yet). In the meantime, though, there was some good news, with the House passing the “Fourth Amendment is Not For Sale Act,” which was originally introduced in the Senate by Ron Wyden and appears to have broad bipartisan support.

We wrote about it when it was first introduced, and again when the House voted it out of committee last year. The bill is not a comprehensive privacy bill, but it would close the loophole discussed above.

The Wyden bill just says that if a government agency wants to buy such data, if it would have otherwise needed a warrant to get that data in the first place, it should need to get a warrant to buy it in the market as well.

Anyway, the bill passed 219 to 199 in the House, and it was (thankfully) not a partisan vote at all.

It is a bit disappointing that the vote was so close and that so many Representatives want to allow government agencies, including law enforcement, to be able to purchase private data to get around having to get a warrant. But, at least the majority voted in favor of the bill.

And now, it’s up to the Senate. Senator Wyden posted on Bluesky about how important this bill is, and hopefully the leadership of the Senate understand that as well.

Can confirm. This is a huge and necessary win for Americans' privacy, particularly after the Supreme Court gutted privacy protections under Roe. Now it's time for the Senate to do its job and follow suit.

[image or embed]

— Senator Ron Wyden (@wyden.senate.gov) Apr 17, 2024 at 3:30 PM

The Fourth Amendment exists for a reason. It’s supposed to protect our private possessions and data from government snooping, unless they have a warrant. It doesn’t entirely prevent the government from getting access to data, they just need to show probable cause of a crime.

But, of course, the government doesn’t like to make the effort.

And these days, many government agencies (especially law enforcement) have decided to take the shortcut that money can buy: they’re just buying private data on the open market from data brokers and avoiding the whole issue of a warrant altogether.

This could be solved with a serious, thoughtful, comprehensive privacy bill. I’m hoping to have a post soon on the big APRA data privacy bill that’s getting attention lately (it’s a big bill, and I just haven’t had the time to go through the entire bill yet). In the meantime, though, there was some good news, with the House passing the “Fourth Amendment is Not For Sale Act,” which was originally introduced in the Senate by Ron Wyden and appears to have broad bipartisan support.

We wrote about it when it was first introduced, and again when the House voted it out of committee last year. The bill is not a comprehensive privacy bill, but it would close the loophole discussed above.

The Wyden bill just says that if a government agency wants to buy such data, if it would have otherwise needed a warrant to get that data in the first place, it should need to get a warrant to buy it in the market as well.

Anyway, the bill passed 219 to 199 in the House, and it was (thankfully) not a partisan vote at all.

It is a bit disappointing that the vote was so close and that so many Representatives want to allow government agencies, including law enforcement, to be able to purchase private data to get around having to get a warrant. But, at least the majority voted in favor of the bill.

And now, it’s up to the Senate. Senator Wyden posted on Bluesky about how important this bill is, and hopefully the leadership of the Senate understand that as well.

Can confirm. This is a huge and necessary win for Americans' privacy, particularly after the Supreme Court gutted privacy protections under Roe. Now it's time for the Senate to do its job and follow suit.

[image or embed]

— Senator Ron Wyden (@wyden.senate.gov) Apr 17, 2024 at 3:30 PM

Say what you will about the general politeness of Canadians and the genteel nature of their secondhand Britishness, but never forget their cops can be just as petty and vindictive as our cops.

Law enforcement entities everywhere have a massive sense of entitlement. Officers and officials tend to think that people should comply with whatever they say, never question any assertions they make, and give them whatever they ask for without providing the proper paperwork.

The fact is that people aren’t obliged to give cops things they’re only supposed to be able to obtain with warrants. Voluntary consent eliminates this obligation, and that’s fine as long as it’s actual informed consent.

But cops tend to get all shitty when they’re unable to obtain stuff without warrants. Rejected requests for consent are often treated as inherently suspicious. Reluctance to cooperate (without the existence of court orders compelling more) is viewed as obstruction and, sometimes, results in criminal charges (or at least an arrest) even when the person being badgered by cops is completely in the right.

This report of a Canadian bar’s refusal to voluntarily relinquish its parking lot recordings contains plenty of statements from the Royal Canadian Mounted Police and others in the law enforcement field. And every single statement makes it clear Canadian law enforcement believes they’re owed whatever evidence might be available and should never be inconvenienced (even momentarily) by demands officers go get a warrant they could easily obtain within minutes.

A shooting happened outside of the Cactus Club Cafe and the RCMP asked anyone in the area to come forward with any recordings they might have of the area the shooting took place in. The RCMP approached the club and was told it needed to obtain a warrant if it wanted copies of the club’s parking lot footage.

As the owners of the restaurant chain pointed out in its statement to Canada’s Global News, this is standard operating procedure for the company.

“The process of requesting a production order before releasing surveillance footage is a standard practice put in place across all of our locations. This protects privacy and ensures we’re following the law.”

Which is, of course, the way it should be. The company should comply with court orders but it should not feel obligated to hand over footage obtained by its cameras without one.

Everyone else — including the national association representing bars and restaurants — appears to feel the Cactus Club is in the wrong.

“The general protocol is for people to give up, not just restaurants, but people to give up video to help and assist the police in a manner that’s fairly quick,” said president and CEO Ian Tostenson.

Totenson heads up British Columbia’s Restaurant and Food Service Association. But rather than advocate for the rights of the private companies he represents, he has chosen to present the Cactus Club as some sort of scofflaw, even if all it did was ask to see a warrant before handing over recordings that can only be obtained with a warrant or consent.

That demand for the proper paperwork was apparently a first for the RCMP, which seemingly feels it shouldn’t need to seek warrants when there’s [checks article again] suspected criminal activity occurring. Here’s just one of the statements made by British Columbia’s “visibly upset” public safety minister.

“It’s the first time it’s crossed my desk that there has been a refusal to initially comply with police request for video,” Mike Farnworth told Global News in an interview Tuesday.

Well, that’s a shame. Too many private entities are being far too compliant. There’s no legal obligation to consent to warrantless searches of any private property, including recordings created with privately-owned cameras. Just because most people turn over footage voluntarily doesn’t make the Cactus Club wrong. It just means most people don’t care about their rights, much less the precedent they’re inadvertently setting — the sort of low bar that ensures law enforcement officers will be easily offended (and pettily vindictive) the moment anyone provides the least bit of (explicitly legal!) resistance.

And it’s not just the RCMP. It’s also the mayor of Coquitlam, where this particular club is located.

“For a local business to insist that the RCMP get a warrant for information that they might have that could lead to an arrest is outrageous…” 

It definitely is not “outrageous.” It’s exactly within their well-established rights. The RCMP has an obligation to obtain consent or a warrant. It failed to get consent. It did, as the article notes, secure a warrant and the footage investigators were seeking. Everything worked out. And one would logically assume it didn’t take much to secure the warrant, considering the strong likelihood the restaurant’s cameras captured footage of the shooting.

So, why all the shouting? Well, it appears that everyone from the RCMP official to the mayor to the head of a private retail association believes cops should never have to get a warrant when investigating crimes. Holy shit, what a statement to make, even implicitly.

And somehow, it gets even worse. The club’s decision to exercise its rights has been met with explicit retaliation by the BC government. Here’s more from the BC public safety minister, who apparently sees nothing wrong with punishing a company for asking to see a warrant:

In the most recent case, Farnworth said the province has since amended the terms and conditions of the Barnet Highway Cactus Club’s liquor licence.

“They must have video surveillance and they must provide it to the police or a liquor inspector upon request,” said the public safety minister.

A warrant is a “request,” you fool. And yet, this entity has decided to “amend” a liquor license of this one club to force it to comply with warrantless demands for private camera footage — something that clearly falls outside of its legal obligations. But now, it’s the law of land — a law that now explicitly singles out a single business with a compelled compliance mandate.

Hopefully, the Cactus Club will sue. This is clearly retaliatory. It’s now subject to mandates that don’t apply to other liquor license holders in British Columbia… just the one that did nothing more than ask the RCMP to respect its rights as a private business.