Do I Have To Comply With Phone Search As a Permanent Resident

[HRQX 4,145]

10 hours ago, Crazy Cat said:

I guess it boils down to how long a person wants to fight CBP.....

I recall a news story about a US citizen that took a cell phone pic of a border patrol agent and subsequently refused to provide the passcode to his cell phone. So CBP started a search (*since the US citizen was going outbound, odds are he wouldn't have been searched at all if not for the recent actions that had transpired) and they only found a magazine with a few bullets in it that the US citizen had forgot that he had. As a result of that they also confiscated his pickup truck for 2 years by using civil forfeiture: https://www.abcactionnews.com/news/national/kentucky-man-suing-government-for-taking-truck-at-the-border-in-civil-forfeiture-case Last I heard is that SCOTUS refused to hear the case: https://www.scotusblog.com/case-files/cases/serrano-v-u-s-customs-and-border-protection/

Edited September 23, 2021 by HRQX

[Carpe Vinum 2,310]

13 hours ago, Lemonslice said:

Look up EFF.org, they explain how to travel and protect your data. 

Can't second this enough.

[Mike E 11,723]

23 hours ago, BananaShoes said:

Can I refuse having my phone searched by an immigration officer if I am returning to the US as a permanent resident? 

 

Whether you you say no or not is irrelevant. Whether you are a permanent resident or citizen is irrelevant.  If CBP wants your phone and you refuse to hand it over, CBP will use physical force to separate you from your phone.  Here is how it will go:

 

CBP: give me your phone 

 

You: no

 

CBP: turn around, hands behind your back. 
 

You: no

 

CBP calls for assistance and one or more officers approach you from the back, pulls your hands to behind your back and hand cuffs you.  You are then taken to a cell or some other physical restraint.  
 

CBP then separates you from your phone.  
 

CBP: give me your pin code to unlock your phone 

 

You: no

 

CBP: we are keeping your phone 

 

You will eventually be released and permitted to enter the USA. Your phone might show up at your home days to years later.  Or never.  
 

You might have to go through a court trial where you might be ordered to surrender your pin.  You might forget your pin. A judge might believe you.  
 

Understand that the search authority at a port of entry is near absolute.  If they want to do a cavity search they will.  
 

23 hours ago, BananaShoes said:

Do I run any risks if I refuse to hand or unlock my phone/

See above. 

23 hours ago, BananaShoes said:

ask for warrant/ask for supervisor...etc?

No risks, but anyone  can ask for warrant or supervisor. You aren’t getting the former as no warrant is required.  
 

You might get the latter.  That is going to depend how a CBP field manager runs the office.  
 

If you have global entry, once you refuse to comply, say bye bye to that status.  

[Joe Kano 327]

3 hours ago, Mike E said:

Whether you you say no or not is irrelevant. Whether you are a permanent resident or citizen is irrelevant.  If CBP wants your phone and you refuse to hand it over, CBP will use physical force to separate you from your phone.  Here is how it will go:

 

CBP: give me your phone 

 

You: no

 

CBP: turn around, hands behind your back. 
 

You: no

 

CBP calls for assistance and one or more officers approach you from the back, pulls your hands to behind your back and hand cuffs you.  You are then taken to a cell or some other physical restraint.  
 

CBP then separates you from your phone.  
 

CBP: give me your pin code to unlock your phone 

 

You: no

 

CBP: we are keeping your phone 

 

You will eventually be released and permitted to enter the USA. Your phone might show up at your home days to years later.  Or never.  
 

You might have to go through a court trial where you might be ordered to surrender your pin.  You might forget your pin. A judge might believe you.  
 

Understand that the search authority at a port of entry is near absolute.  If they want to do a cavity search they will.  
 

See above. 

No risks, but anyone  can ask for warrant or supervisor. You aren’t getting the former as no warrant is required.  
 

You might get the latter.  That is going to depend how a CBP field manager runs the office.  
 

If you have global entry, once you refuse to comply, say bye bye to that status.  

My relative never complies.  If they want to look thru his luggage he tells them to open it themselves and search it, we were flying back from Philippines a few years ago and they threatened to detain him and he may miss his next flight, he said I don't care I am in Dallas at my final destination already,  it was pretty funny.   

 

A few years ago I was making about 3 trips per year to Philippines and staying like 1 month each trip,  they were making me go to secondary inspection almost on a regular basis didn't matter if I had only carry on or had checked luggage.  I finally after a few times asked why am I always having to do this they said something to see if I was transporting drugs or cash.  They guys were pretty cool overall.

[Beth & Achraf 328]

21 hours ago, Allaboutwaiting said:

Your privacy rights, i.e., the level of the search on your device -manual or forensic- actually depend on the state you enter the US through. 

 

Some states require a specific reasonable suspicion while others require no suspicion at all.

 

So even though you should comply, depending on where it happens, you could question the decision.

No matter what state they enter,  its Federal jurisdiction,  Federal does not practice state regulations on search

[gavin68 13]

There is a lot of misinformation on this thread. If you don't know the answer, or just want to get off-topic and argue, maybe you shouldn't be replying.

 

To answer OP's question: It really isn't clear if the Border Search Exception to the Fourth Amendment applies and, if so, to what degree. It is a legal gray area. Unfortunately, as far as I know, there is no concrete yes/no answer to your question. This is something that is likely headed to the SCOTUS in the near future. I do not know how they will rule on this, as the court has been fairly libertarian in recent years, but some of these Justices (especially the ones appointed by Trump) have some authoritarian (tyrannical) tendencies.

 

Someone posted earlier about the laws varying by state. State law is irrelevant, as CBP is a federal agency. State law would not curtail federal authority.

 

The 'Border Search Exception' has been a tool that has been routinely abused by border agents, usually as a means of discrimination and/or retaliation. There are plenty of horror stories out there. It is something that is in desperate need of reform by Congress or executive action. Too bad this Dementia-ridden puppet in office right now is unlikely to do anything useful for us. But hey, this is supposedly what 81 million USC's wanted. In 2018, there was a bi-partisan push to restrict CBP from searching electronics without cause, which was spear-headed by Senator Rand Paul, but unfortunately it failed.

 

I can relay my own experiences on this. A few years ago, my wife and I were pulled aside by two very irate Border Patrol agents while traveling south at a Port of Entry bridge into Mexico. The fact that Border Patrol agents were operating at a POE instead of their CBP counterparts should raise some eyebrows in-and-of itself. They were there to target us because I declined a vehicle search of my car by a local city police officer (NOT FEDERAL) during a traffic stop only minutes before, when I was pulled over for alleged speeding (something that was later thrown out in court). He radioed ahead to his BP buddies to stop us while walking into Mexico and give us some grief in retaliation. That cop was very angry at me for declining consent to rummage through my car.

 

The two agents searched every inch of us, for absolutely no reason. They then separated myself and my wife. One of them pointed and laughed at me out loud (obnoxiously loud) while I walked out as directed. After I left, the other one demanded to search my wife's phone. He went through all of her personal accounts, including e-mail, Instagram, Facebook, and her personal pictures. They found nothing of interest. He then grabbed my phone (which my wife was carrying), and demanded my password from her. She said no, because she did not know my password). This BP agent became enraged and banged my phone off of a desk. There was a gouge in the case because of this, but the phone itself was undamaged. They became increasing upset because they could not find anything criminal to charge us with. They tried taking her across the street to the CBP office (outside of my view and without me knowing), where CBP questioned her for two hours. After their additional two hours of questioning and finding absolutely nothing, they let her go and decided not to revoke her visitor visa. We were allowed to proceed to Mexico, and came back later that day without further incident.

 

I filed several complaints over the next few months. Last I heard, the two BP agents were "disciplined" (but they never divulged what they did). I've only seen one of those two around that POE in the years following this. Frankly, I think that man was high on drugs or steroids when this incident occurred, because he looked different the next time I saw him there (he lost of ton of muscle mass). This would explain his rage and irrational behavior. The city police officer who precipitated this was written up for the incident, and the traffic ticket was dismissed. I never saw the other BP agent again (the one that laughed at me). I would like to think that CBP fired him, but who knows. They will let these clowns get away with anything.

 

Here's the best solution to avoid any issue: either don't bring electronics, or (better yet) wipe your electronics before going to a POE or similar Constitution-free zone. In the mean time, write to your elected officials and advocate for an end to this routine fishing expedition.

Edited September 26, 2021 by gavin68

[shaolincrane 69]

Suspicion alone doesn't warrant guilt. I would never hand over my phone or laptop for a search. If I'm giving a metal waiting room, so be it. There still needs to be reasonable Suspicion, even for federal agents and your right to privacy is not cause.

 

Secondly, move all your sensitive stuff, naked photos, bank documents, credit card info into your secure folder with a different pattern or security acces than your standard. This is in the event you have an agent force your thumb or face to your phone to unlock it, I've witnessed it happen from street cops, I would never put it past the corrupt CBP officers I've seen.

 

During the last administration I was held in secondary for 4 hours after my solo backpacking trip to Egypt. They kept asking the same questions over and over and finally asked me "what Arabic ethnicity are you? While holding my US passport showing my very clearly German last name. I asked to see a supervisor and my lawyer and they finally let me leave.

 

So they can and probably will make your life miserable, but that doesn't mean you should comply with something unacceptable because the government is corrupt. I don't ever comply with any search for the simple matter of not wanting to, I don't care if they think it's suspicious or not.

 

Obviously the rules for a USC are different but that doesn't mean they're in the right either.

[BananaShoes 31]

  

2 minutes ago, shaolincrane said:

Suspicion alone doesn't warrant guilt. I would never hand over my phone or laptop for a search. If I'm giving a metal waiting room, so be it. There still needs to be reasonable Suspicion, even for federal agents and your right to privacy is not cause.

 

Secondly, move all your sensitive stuff, naked photos, bank documents, credit card info into your secure folder with a different pattern or security acces than your standard. This is in the event you have an agent force your thumb or face to your phone to unlock it, I've witnessed it happen from street cops, I would never put it past the corrupt CBP officers I've seen.

 

During the last administration I was held in secondary for 4 hours after my solo backpacking trip to Egypt. They kept asking the same questions over and over and finally asked me "what Arabic ethnicity are you? While holding my US passport showing my very clearly German last name. I asked to see a supervisor and my lawyer and they finally let me leave.

 

So they can and probably will make your life miserable, but that doesn't mean you should comply with something unacceptable because the government is corrupt. I don't ever comply with any search for the simple matter of not wanting to, I don't care if they think it's suspicious or not.

 

Obviously the rules for a USC are different but that doesn't mean they're in the right either.

 

I will never understand the comments that say "If you have nothing to hide, what's the problem". Thank you for sharing.

[HRQX 4,145]

On 9/22/2021 at 6:39 AM, BananaShoes said:

Can I refuse having my phone searched by an immigration officer

https://crsreports.congress.gov/product/pdf/LSB/LSB10387:

Quote

Judicial Application of the Border Search Exception to Searches of Electronic Devices

The Supreme Court has not addressed whether the routine border search exception extends to searches of electronic devices such as cell phones...

 

Lower courts have considered whether the routine border search exception authorizes warrantless searches of cell phones and other electronic devices at the border. For instance, the U.S. Courts of Appeals for the Fourth and Ninth Circuits have held that manually inspecting the contents of a computer or cell phone at the border is permissible given the government’s broad authority at the border, and that such searches are no less routine than scanning the contents of a traveler’s luggage. But lower courts have disagreed over whether more intrusive searches of electronic devices require particularized suspicion of criminal activity. The Fourth and Ninth Circuits have both held that the forensic examination of a device (e.g., using software to copy a computer’s hard drive and analyze its contents entirely, or recording information from a cell phone for further processing) exceeds the scope of a routine border search because of its comprehensive nature and the enhanced risk of exposing private information. In doing so, both courts relied on the Supreme Court’s reasoning in Riley that cell phone searches implicate greater privacy concerns than searches of most other physical items. Thus, the Fourth and Ninth Circuits have held that forensic searches of electronic devices require reasonable suspicion of a crime. Conversely, the Eleventh Circuit has held that the Fourth Amendment requires no suspicion of criminal activity for intrusive border searches of electronic devices or any other type of personal property (as opposed to intrusive searches of a person’s body), and that Riley does not apply to searches at the border, where there are diminished privacy expectations.

 

In sum, while lower courts have applied the routine border search exception to cover manual searches of electronic devices at the border, courts have disagreed on whether more intrusive, forensic searches of such devices should be restricted.

 

Litigation in Alasaad v. Mayorkas

In Alasaad v. Mayorkas, 10 U.S. citizens and one lawful permanent resident (plaintiffs) had their cell phones or other electronic devices searched by CBP or ICE officials upon their return to the United States following trips abroad. Plaintiffs claimed that the officials had threatened to confiscate their devices if they refused to provide their passwords to unlock them, or that they otherwise felt coerced to provide access to their devices. Plaintiffs alleged that, upon unlocking their devices, the officers viewed private information, such as photographs, work product, and attorney-client communications. In some instances, the officers confiscated the devices or retained information collected from them.

...

On February 9, 2021, the First Circuit partially reversed and vacated the district court’s decision, concluding that the challenged border search policies “are within permissible constitutional grounds.” First, the appellate court rejected plaintiffs’ contention that electronic device border searches require a warrant in light of the Supreme Court’s decision in Riley. The court explained that Riley does not mandate a warrant requirement for all electronic device searches, and that the Supreme Court’s decision does not apply to border searches, “which are entirely separate from the search incident to arrest searches discussed in Riley.” According to the First Circuit, “a warrant requirement—and the delays it would incur—would hamstring the agencies’ efforts to prevent border-related crime and protect this country from national security threats.”

The First Circuit also rejected plaintiffs’ argument, in the alternative, that all electronic device searches under the CBP and ICE policies, including basic searches, require reasonable suspicion. Recognizing that electronic device searches implicate greater privacy concerns than searches of other physical items, the court reasoned that these concerns “are nevertheless tempered by the fact that the searches are taking place at the border,” where there is a heightened interest in preventing the entry of unwanted persons and goods. The court also observed that a basic electronic device search does not involve an intrusive search of a person, and is limited to accessing information on the device itself. The court thus held that a basic electronic device search at the border is a routine search requiring no reasonable suspicion (The First Circuit left undisturbed the district court’s ruling that advanced searches require reasonable suspicion; but, as noted, both CBP and ICE policies currently require reasonable suspicion for such searches.)

With regard to the scope of an electronic device border search, the First Circuit disagreed with the plaintiffs’ contention that the search should be limited to searching for contraband only. The court reasoned that, given the government’s paramount interest in preventing the entry of harmful persons and effects at the border, the border search exception covers not only searching for contraband itself, but also evidence of contraband or border-related crime. The court thus held that “advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.”

Finally, the First Circuit rejected plaintiffs’ assertion that the government’s search of their electronic devices and exposure of expressive information violates the First Amendment. The court determined that the content-neutral search policies adopted by CBP and ICE “have a plainly legitimate sweep and serve the government’s paramount interests in protecting the border.” In the court’s view, the presence of expressive material on electronic devices does not require a warrant or a heightened level of suspicion.

Edited September 27, 2021 by HRQX

[shaolincrane 69]

3 minutes ago, BananaShoes said:

  

 

I will never understand the comments that say "If you have nothing to hide, what's the problem". Thank you for sharing.

Me neither and that brainwashed ideology is why our government has the overreach and corruption it has.

 

Jews didn't have anything to hide. 

 

Salem "witches" didn't have anything to hide.

 

Native Americans didn't have anything to hide.

Japanese Americans in internment camps had nothing to hide.

 

The Kent State students had nothing to hide.

 

Etc.

 

Our government will do the worst of the worst if we allow it. Going along with their crimes makes the people just as complicit. 

 

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

[HRQX 4,145]

On 9/22/2021 at 10:10 AM, ra0010 said:

if you have confidential information from somebody else and you do think it’s a HIIPA violation

There is an exception for law enforcement purposes; see 45 CFR § 164.512(f). The physician does not have to obtain an individual’s written authorization before disclosing his or her PHI if the physician receives a written or adequate verbal request from a law enforcement official. https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html "Law Enforcement Purposes. Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes..."

 

Also, in Alasaad v. Mayorkas some of the Plaintiffs were attorneys and the First Circuit acknowledged that CBP or HSI checking their private information, such as photographs, work product, and attorney-client communications is “within permissible constitutional grounds” during a routine search.

[Ontarkie 13,916]

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