Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

The Future of Face-Recognition Technology

Face it: the future is already here. And by default, your face is ever more likely to be found in a law-enforcement database. It’s as easy as getting a driver’s license.

The facts are that face recognition is neither new nor rare, and more than one out of two American adults have already been loaded into a local, state, or federal database.

That’s according to this report by the Center on Privacy and Technology at the Georgetown University Law Center. Read it to learn more about this technology; how it’s being used; and what the future holds. For three shorter stories about it, see here, here, and here.

What did the researchers do? They sent public-records requests to more than one hundred law-enforcement agencies across the country. They interviewed representatives from dozens of those agencies as well as from the technology companies they contract with. They made two site visits to agencies that use advanced face-recognition systems. And they surveyed the state of the law (or lack thereof) in all fifty states.

What are their takeaways? Here are four.

  1. The technology has value, and its use is inevitable. The report doesn’t aim to stop it.
  2. Its use is spreading rapidly and secretly without limits, standards, or public oversight.
  3. The total network of federal, state, and local databases includes over 117 million American adults. That’s more than half the country.
  4. We’re moving toward a world of continuous, real-time face recognition through public surveillance cameras.

What are their recommendations? Here are three.

  1. Congress and state legislatures should pass commonsense laws to regulate face recognition, and police should follow them before they run a search.
    • For example, to search a database of driver’s license or state identification photos, police should have a warrant backed by probable cause.
    • To search a database of mug shots, they should have a reasonable suspicion of criminal conduct. Periodically, they should scrub the database of people who were arrested but not charged and convicted. Michigan, for one, already requires that.
    • They should not use real-time, continuous surveillance except for public emergencies.
    • They should not track people based on politics, religion, or other protected status.
  2. The federal government should develop tests and best practices to improve the technology’s accuracy. For example, in the latest available test of the FBI’s database, the system included the right person on a list of fifty potential matches 86% of the time. That means that one out of seven searches returned a list of fifty innocent look-alikes, and the other six included 49 of them.
  3. All governments should report their use of the technology, audit such use regularly, and respect civil rights and liberties.

Man Gets Indicted By His Pacemaker

Actually, the case was indicted by a grand jury in Ohio, which charged him with arson and insurance fraud.

Apparently, the man called 911 as his home burned in the background. He said he was sleeping when the fire started and that, in a hurry, he packed a bunch of bags, broke a window with his cane, threw the bags out the window, and carried them away. He mentioned that he had a pacemaker.

The police came to suspect him of arson. They say they found gasoline on his shoes, pants, and shirt, and they believe the fire had multiple points of origin from outside the house.

So they got a search warrant for the data from his pacemaker. That gave them a historical record of his heart rate and rhythms before, during, and after the fire.

Reportedly, the data showed that the man was active when he was supposed to be asleep, and a cardiologist has said it was “highly improbable” that he could carry out the strenuous activities he described.

Vulnerability Is Not The Same As Failure

We borrow those words from this smart essay on national security that was written in the wake of the terrorist attacks in Brussels this spring.

The author is a former assistant secretary at the Department of Homeland Security and a current member of the Department’s Homeland Security Advisory Council. The Advisory Council consists of top leaders from the worlds of business, government, and academia who provide the Department with real-world, independent advice on homeland security. So the author knows something of what she speaks.

And her essay is worth a read. In it, she answers some of the earnest questions she’s been asked over the years by friends and family.

  • Should I buy a gun? “Only with training and safety measures at home, and certainly not to combat Islamic terrorists.”
  • Is Times Square safe on New Year’s Eve? “Like every crowd scene, you have to stay alert, but security is high at events like that.”
  • Is my family safe? “No, not entirely.”

What she means is that the government simply cannot reduce our vulnerabilities to zero, and even if it could, we wouldn’t want it to. Doing so would destroy the country we love and believe in and derail its great experiment with freedom. That experiment—for all its flaws and growing pains—was ahead of its time in the beginning, and it continues to serve as a model for the world today. The risks we tolerate, then, are not bad bargains just because an enemy can exploit them, and even as we try to minimize those risks and maximize our defenses, we must maintain our spirit.

But you should read her words for yourself.

 

“The Fourth Amendment … Is In Retreat”

That’s how a dissenting opinion ends in a major federal case that was decided on Tuesday. This is how it begins:

“A customer buys a cell phone. She turns it on and puts it in her pocket.”

And with that, according to the majority’s opinion, the customer has consented to create a record of everywhere she goes, a record which the government can then obtain without a search warrant based on probable cause.

Neat trick, huh?

If the government wanted to plant a tracking device on you to follow you everywhere you went, it would need a warrant, but if it wants to let your cell phone do the work, it doesn’t.

Instead, under a federal law from 1986, it can apply for a special order to get your phone’s cell-site location data. These are the logs of cell towers that your phone connects to as you go about your business. They create a fairly precise record of where your phone goes.

The special order must be approved by a judge, but the government doesn’t have to show probable cause to believe you committed a crime; it only needs to show reasonable grounds to believe that your travels are “relevant and material to an ongoing criminal investigation.” Off the top of my head, I can’t think of a case where the government couldn’t argue your travels were important once it decided to investigate you for something.

In this case, the government obtained seven months’ worth of records this way.

On appeal, the court not only denied that the Fourth Amendment required a search warrant backed by probable cause, but it denied that the Fourth Amendment applied at all because, supposedly, you have no reasonable expectation of privacy in data that you share (or that your phone shares) with a third party such as your cellular service provider.

The court didn’t explain how people are supposed to work, date, or otherwise live in the real world without doing so.

As we’ve noted before, this third-party doctrine makes no sense in the digital age.

Fortunately, many states, including California, are going the other way.

Patient Privacy Gives Way for Good Cause

If you’re a doctor in California, here’s a healthy reminder that the Medical Board can subpoena your patients’ records for good cause, over their objection and yours.

In a recent decision, the California Court of Appeal upheld an order that compelled a doctor to produce three of his patients’ records even though all three didn’t want them released.

It all started when the Board got a complaint from a private investigator that the doctor, an ophthalmic plastic surgeon, was billing for services he didn’t render, misrepresenting some of the services he did render, and falsifying documents.

The Board began to investigate the complaint, and later, it issued subpoenas for the three patients’ records on the ground that the doctor had departed from the standard of care in their treatment. Two of the patients wrote to the doctor to say they didn’t want their records produced and were happy with their quality of care. The third wrote that he hadn’t received notice of any subpoena, but he didn’t want his records produced, either.

The doctor moved to quash the subpoenas, and the Board opposed it and moved to compel his compliance.

The trial court sided with the Board but limited the subpoenas to a three-year range. It doesn’t appear that the patients pursued their objections in court.

On appeal, the court upheld the order, and in the process, it surveyed the case law on what constitutes good cause for breaching the privacy rights of patients.

In three prior cases, the courts had found no good cause. In one, the evidence consisted of a declaration from the Board’s investigator that supplied no facts, only a conclusion that the records “may offer evidence to substantiate” an allegation of gross negligence. In another, the Board supplied experts who suggested, based on their review of pharmacy records, that two doctors were overprescribing, but they didn’t explain why, and the doctors submitted competent evidence to rebut them.

In the most recent case, however, the court found good cause for the subpoena because of specific billing irregularities and other evidence that a doctor was overprescribing. He’d prescribe large amounts of an amphetamine to one patient. He’d prescribe to the same patients at two different pharmacies on the same day. He’d prescribe the same drugs to multiple family members and refill their prescriptions before the due date.

In this case, too, the court held that substantial evidence supported the trial court’s finding of good cause because the investigator’s partial records revealed serious problems with the claims paperwork, which the Board’s expert reviewed. In some instances, the doctor’s paperwork didn’t support the services he billed for. In others, there was no documentation at all. In some, there were no signatures; in others, no dates of service; and his reports used canned, cut-and-paste language. So the court affirmed the order.

New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016.

Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about the immigration consequences of a proposed guilty plea, and they must ethically defend against such consequences to the extent they can. This is not new, but the statute confirms state and federal case law to that effect. What is new, however, is that prosecutors must also consider such immigration consequences as a factor in their plea-bargaining efforts to reach a just outcome. See Pen. Code §§ 1016.2 & 1016.3.

It’s not a felony to transport marijuana, phencyclidine, or mushrooms unless you’re doing it for sale. This is Assembly Bill 730. It amended the Health and Safety Code to bring the treatment of these drugs in line with that of cocaine, heroin, and others. Two years ago, the state amended its drug-trafficking laws to preclude felony charges for just transporting most drugs unless you were actually trafficking, too—that is, transporting for sale; but the bill left out marijuana, phencyclidine, and psilocybin mushrooms. This bill fixes that. See Health & Safety Code §§ 11360, 11379.5, & 11391.

The police (but not your neighbor) may continue to use pen registers and trap-and-trace devices to investigate you. This is Assembly Bill 929. It amended the Penal Code to provide for police to apply for pen registers and trap-and-trace devices. What are these? Well, pen registers capture and record all the numbers of the phones or devices that you call or send messages to (but not the content of your communications), while trap-and-trace devices capture and record all the numbers of the phones or devices that call or send messages to you (but not the content). They’re often used in tandem, and they’ve been authorized by case law for a long time, but no California statute codified their use until now.

To use them, the police must apply for a court order, certify that the information is relevant to an ongoing criminal investigation, and show probable cause to believe the information will lead to evidence of the crime. If granted, the court order is good for sixty days, and it may be renewed for another sixty days. But if someone installs or uses such devices without a court order, it’s a crime. It may be charged as a felony or a misdemeanor, and it’s punishable by a fine of up to $2,500, imprisonment in the county jail for up to three years, or both. See Pen. Code §§ 638.50, 638.51, 638.52, & 638.53.

A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”

New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect.

Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in bad faith, and the violation either contributed to your conviction or seriously hindered your ability to defend yourself. The court may also disqualify the prosecutor from the case, and if it does, the defense may move to disqualify the prosecutor’s entire office if there is enough evidence that other employees shared in the bad faith as part of a pattern and practice. See Pen. Code § 1424.5; Bus. & Prof. Code § 6068.7(a)(5).

The police must get a new type of warrant to search your electronic data. This is Senate Bill 178. It amends the Penal Code to require a special court order before a government agent or entity can search your data in electronic devices or the cloud, including your emails, text messages, and location data. There is an exception if the government believes in good faith that it needs the data to address a life-threatening emergency, but even then, the government must apply for a warrant within three days. Other rules require it to seal, retain, or destroy your data depending on what it finds and to notify you of what it’s doing. If the government doesn’t follow these rules, you can move to exclude the evidence it obtained as a result. See Pen. Code §§ 1546, 1546.1, 1546.2 & 1546.4.

The public has a right to record the police. This is Senate Bill 411. It amends the Penal Code to confirm that you can’t be stopped for or charged with resisting or obstructing a police officer (or public official) if the officer or official is in a public place or if you have a right to be there. See Pen. Code §§ 69(b) & 148(g).

Grand juries will no longer investigate or indict cases involving police shootings or the use of deadly force. This is Senate Bill 227. It amends the Penal Code to bar grand juries from indicting or inquiring into cases involving a police officer’s use of force that led to the death of someone he or she had detained or arrested. See Pen. Code §§ 917(b) & 919(c).

The state will collect and maintain more comprehensive data on police stops and profiling. This is Assembly Bill 953. It amends the Government Code to require that state and local law-enforcement agencies collect data on every police stop and report their data annually. The data must include the time, date, and location of the stop as well as the reason for it, what happened next, and the end result. The law also expands the definition of police profiling beyond race to include gender, religion, national origin, and sexual orientation. The largest agencies have until April 2019 to issue their first report while the smallest agencies have until April 2023, and those in the middle have until 2020 or 2022 depending on their size. See Gov’t Code § 12525.5; Pen. Code §§ 13012(a)(5) & 13519.4.

Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time?

California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help shed light on the answer.

For starters, courts have plenty of discretion in formulating probation conditions, and when it comes to kids, they have even more latitude than they do with adults because kids need more guidance and supervision, and their rights haven’t ripened to maturity.

The final analysis, however, is the same for kids or adults: A probation condition is invalid if it’s not reasonably related to any of the following: (1) your underlying crime; (2) conduct that is criminal in itself; or (3) conduct that makes it more likely you’ll commit more crime. See People v. Lent (1975) 15 Cal. 3d 481, 486; In re D.G. (2010) 187 Cal. App. 4th 47, 52-53 (applying Lent to juvenile probation conditions).

First, the girl’s case. It began one day when she was meeting with her school counselor, who thought she was high on something because she was acting fidgety and her pupils were dilated. After their meeting, the girl left her purse behind, so the counselor opened it and found a sandwich bag of 30-45 orange pills. The counselor took one of the pills before the girl came back for her purse, and the pill later tested positive for amphetamine.

Subsequently, the girl admitted to misdemeanor possession of ecstasy, and the court put her on probation, which included drug testing as well as searches of her person, room, vehicle, and property.

She didn’t fight those conditions, but another one was that she submit to searches of her electronic devices and surrender her passwords to them. The probation office hadn’t recommended that, and the girl objected to it, but the court wouldn’t budge.

On appeal, however, the court struck that condition because there was nothing in the record that tied the girl’s drug possession to her use of electronic devices. The government argued that she could’ve used her devices to sell the pills, but there was no evidence she ever did that. Since her use of electronic devices was not criminal in itself, and it bore no reasonable relationship to her risk of getting in trouble again, the court struck the condition.

Next, the boy’s case. It began one night when he and his friends robbed and assaulted three different people. The boy was already on probation because of a prior robbery, and he admitted the new violations. The court ordered him detained, and it also ordered all his probation conditions to remain in place, including existing search conditions for his person, room, vehicle, and property. The prosecutor then suggested an additional search condition for his electronic devices, and the court agreed, ordering the boy to submit to searches of his electronic devices and social-media accounts and to turn over all his passwords.

On appeal, the court agreed that the boy, who’d stolen cell phones in the past, would need to submit to searches of devices found in his possession to confirm that he owned them.

But the court stopped short of permitting unfettered searches of the devices he did own or requiring him to give up his social-media passwords. That was a step too far because there was no evidence that the boy used email, text messaging, social media, or other personal data to facilitate his criminal activity, and his personal data implicated not just his privacy rights but those of other kids and people who were not subject to court supervision. So the court modified the electronics-search condition accordingly.

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