American bloke hauls US govt into court after border cops 'cuffed him, demanded he unlock his phone at airport' A California man is suing the US government for civil rights violations after he was apparently detained and forced to unlock his phone at an American airport. Haisam Elsharkawi, a US citizen, claims he was cuffed, hauled away, and grilled by border officers until he agreed to surrender his smartphone. The unlocked device was …
No, the government doesn't "have the option of allowing it to be sued".
Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
So the judicial power of the Supreme Court and its inferior courts apply to controversies to which the United States is a party.
HOWEVER, there are sometimes statutory "kill switches" that can be used to shut down certain actions, but a challenge based on the Bill of Rights will likely proceed at least to the point where the government gets an opportunity to articulate, say, the existence of a "reasonable suspicion".
"The US Government has the option of allowing it to be sued"
erm... citation needed? I thought the law courts there were pretty independent and take a very dim view of government interference. I don't think US gov can seriously claim this as a matter of national security, when it's clearly some border agents pushing the line too far because usually very few people push back.
You can't sue the United States government itself without its consent, but you can sue many of its officers, e.g., cabinet secretaries, who essentially stand proxy for the government. Here, the nominal defendant would very likely be the Secretary of Homeland Security. There's also precedent for a direct action under the Constitution against the officers themselves. As for the plaintiff's odds of prevailing -- regardless of his cause of action or whom he sues -- I get the feeling that, apart from the 9th Circuit (maybe), today's federal bench considers the Bill of Rights "quaint and antiquated," like the Geneva Conventions, our various antitrust statutes, class actions, and consumer protection in general.
That's the way America has always worked.
This is not the America I grew up with. This has been introduced in the 1990s with the advent of terrorism. Before that, the United States was always a "don't tread on me" and they will leave your country alone. Thanks to "terrorism", now almost every country in the whole world has the same "terroristic" mentality and limiting laws as the United States.
I couldn't even take an almost empty tube of toothpaste out of Heathrow last month, because the pack size was over 100ml.
I rest my case.
Real slick of them to get themselves a law that allows searching people leaving, since that may someone magically allow terrorists in. I knew law was blind, but direction?
It's understandable. They checking to see if someone boarding the aircraft has malicious intent to either blow it up or hijack it and crash it into something.
"It's understandable. They checking to see if someone boarding the aircraft has malicious intent to either blow it up or hijack it and crash it into something."
---
Using a smartphone and $2500 of currency?
Every passenger goes through the anti-explosive material checks anyway. I couldn't even take an almost empty tube of toothpaste out of Heathrow last month, because the pack size was over 100ml.
Once the borderoids had established he wasn't carrying the materials or weapons to endanger the aircraft then there is no threat.
Using a smartphone and $2500 of currency?Once the borderoids had established he wasn't carrying the materials or weapons to endanger the aircraft then there is no threat.
But there's still $2500 left on the table. Sorry, we suspect that money is going to be used for nefarious purposes and will seize it until you can prove otherwise. Then the agency gets to keep the cash or goods, and uses or auctions them off later. As we're nudged towards being a cashless society, cash users stand out as easy marks. I guess when border inspections are privatised, the ability to confiscate traveller's cash will help make those services self-funding, or more profitable.
For me, the outrage is not being forced to surrender a non-existent Facepalm login, it's being expected to surrender any presumption of innocence.
So they should start from the pilots and then all of the cabin crew and passengers? They still need a reasonable suspicion. Is going to Saudi Arabia for a pilgrimage to the Mecca enough?
I personally found all pilgrimages quite stupid as they are echoes of ancient superstitions believing some places and items are more "magic" than others (and very useful to make real money from them), but it looks they are common in any religion - thereby as long as they're protected by explicit constitutional norms, it's hard to tread them as reasonable suspicions.
oh yeah like your password of "jihad" and your facebook page honoring Osama bin Laden are some kind of clue that you're a terrorist. So they look for that to keep you off of airplanes.
[seriously those wannabe types leave rat droppings all over the place, no need to use their phone passwords to spy on them like that, just do simple search engine queries and they'll pop up from time to time so you'll know who they are - use existing laws to get user info from the service providers and a warrant to spy on their activity, and you're all set]
As for the REAL terrorists and spies, they're hiding in plain site and look JUST! LIKE! EVERYBODY! ELSE! and you can't find them by insisting on getting their phones unlocked at an airport.
Next time I fly with a computer, I'll set it up with FreeBSD and I won't encrypt the hard drive. I'll just make sure that it boots into a console and that EVERY virtual console goes to a JAIL. And the root password in the jail will be something like "TSA Sucks".
[its easy to get from a jail to the host; just run ssh to localhost and log in with the host's security, then you can use 'startx' to get the GUI etc. and it'll be fine]
So [b]lame, "them" and their attempts to control and spy on us. TSA and FISA need a _BIG_ _REVIEW_ anyway, and hopefully that will be on Trump's plate in his 2nd term. Under GW Bush (whose administration invented TSA) everybody expressed their concerns that it would get "this bad", eventually. Under Obama it *DID* get "this bad". It hasn't gotten (perceptively) better under Trump, though I think to some extent it [independently] HAS gotten 'less bad'. Let's see how it goes.
Seriously I want things the way they were pre-9/11. Smarter scanning methods, and PROFILING, is more likely to get us there than the current "take of your belt and shoes and hold onto your pants so you don't flash everyone whle you're being scanned" method. And oh, by the way, give up your passwords, too.
post-note - I've been 'more thoroughly examined' at the Mexican border before, car seats removed and left for me to put back, etc. - I had a big car with a big trunk, and so they 'profiled' me for a bit of 'extra' inspection. Whatever, yeah. The agents were polite and it didn't take that long, but yeah, it was kinda 'a pain in the ass'.
"Citizen or alien, agents can rifle through your stuff if you're within 100 miles of the border, and without a warrant"
They say they can, but it's simply that nobody has actually contested it.
And "within 100 miles of the border" is a huge chunk of the population, too. For example, since they consider the coastline to be a border, that's almost 100% of Florida and 90% of the population of New York and California.
"asked if he was under arrest, and if he needed a lawyer [...] was told no" is what I've always been told means you're free to go in so many words. That's the legal question you're advised to ask the police or whoever is holding you, and it's very important. That's going to go a long way towards illegal detention there.
You are forgetting that ANY international arrival point is technically surrounded by a "border", which is why you have to go through inspection and custom. So this little gem includes areas 100 miles from ANY airport that allows international flights to land/depart (including tiny local airports).
More disturbingly, this seems to happen much more frequently if you're not old, white and/or Republican.
And, if we allow it to continue, that may very well change. These officers were abusing their authority and need to be held to account. We like to think they are trained, objective professionals, but too many of them are drunk with power and enjoy the ability to wield their authority with no consequences. That sets a bad precedent, and needs to be firmly stopped.
Otherwise, see icon.
They could detain you in the same manner as this guy and keeping asking why your phone and laptop are wiped, and insinuate you are hiding some type of crime and demand that you restore the proper config so they can snoop.
You are missing the point if you think this is about them snooping your stuff. Your "yes sir" attitude no matter what they do makes the problem WORSE, don't you see that? People need to fight this bullshit or it will only continue to escalate! The snooping is really a minor part of it as far as I'm concerned, of far greater concern is:
1) they "detained" him and even cuffed him but said he wasn't under arrest - and because he wasn't under arrest he wasn't permitted to contact an attorney
2) he was LEAVING the US, so they can hardly argue this is about securing America's borders
3) he's a natural born US citizen, likely singled out because he's muslim - but if they can do this to him, they can do this to an ordinary white guy like me if they feel like it
I have been (briefly) detained in the past and never had any problems other than a delay. If you read the story, and you live in the US, then you'll see that all of the issues came up after he followed your suggestions.
And yes, they can do all this to US citizens and if you take your attitude up with them I doubt that we'll see you here in the comment section for a while.
"If everyone had your attitude, the British would still rule India and black people would still get lynched in Mississippi."
Doesn't always work. Look what happened in the Middle East. It's like why Agateans in the late Terry Pratchett's Interesting Times never noticed anyone on horseback: anyone who did died. Similarly, if the customary response to someone resisting a jackboot is a bullet or 10 to the brain, people start preferring the jackboot. Always be wary of someone who is ready to say, "Well, if that's the way YOU want it..."
I always travel with a clean laptop & phone, have for almost 20 years.
Why? Because I don't trust anyone, particularly hotel staff. Getting my laptop stolen would be a nightmare for work reasons. Getting my phone stolen might lead to all sorts of identity theft problems I don't want to deal with.
No need to hide anything - I just don't want to deal with the consequences of having stuff stolen.
- No you are not under arrest. No you may not see a lawyer. Yes you did provide us with the code to open your laptop, but you'll have to provide us the code to your well-encrypted cloud storage container as well - national security you understand. No you may not use the toilet.
"Clean laptop and phone"
Why? Because I don't trust anyone, particularly hotel staff. Getting my laptop stolen would be a nightmare for work reasons. Getting my phone stolen might lead to all sorts of identity theft problems I don't want to deal with.
What does that entail exactly? you wipe the phone book? so you cant ring anyone? you remove all work from your work laptop? surely your work laptop is encrypted so if its stolen - no data issue
Phones can also be encypted and not even reusable with a wipe/format to a thief - why not do that?
While US law formally grants the same rights to residents and citizens, and 'bill of rights' issues grant same rights to anyone 'just visiting', in practice citizens get better treatment than residents, who get better treatment than visitors.
As a non-US citizen I would just say yes, sir to any reasonable requests. But this guy, being a US citizen and also clearly clued-up to his rights (eg asking "am I under arrest, do I need a lawyer") quite justifiably stood his ground and had every expectation that the border officers would not overstep their mark.
The border officers clearly didn't know where their limit was (possibly exactly because everyone else just says "yes, sir"). And let's face it, has anyone ever heard of a similair story where the US citizen in question was a white guy called John Smith rather than someone with and Egyptian* descent and name. There's no direct indication of racism, but as the Italians say "to think badly of someone is sinful but many times you get it right"
*and by the way I wouldn't trust US border officers to know the difference between Egyptian and Arab
@werdsmith
I also travel to the Us to see [British] friends who live there and while I've never had a problem, my luggage has been searched entering and leaving on each and every occasion.
last year it was searched when I changed 'planes at San Francisco on my way to New Zealand and at Miami on my way back.
TBF, My luggage was also searched by NZ border on teh same trip and I've been searched *every single* European trip I've ever made.
I must look like some kind of major crim
I've no reason to disbelieve you, I just can't think what I'm supposed to do with that information. You haven't had a problem, this guy has, therefore it seems, some people, sometimes experience a problem. That problem should be highlighted, discussed, put into context, investigated etc. which is what's happening here. I would hope that having been called on this, the response of the TSA is not simply that "sometimes, some people don't experience a problem".
This is why I always travel with a clean phone and laptop
It gets a bit damned-if-you-do-damned-if-you-don't though....travelling with a phone and/or laptop with data on? The agents of the government would like to have a look at that. Travelling with a clean phone and/or laptop? The only way something is that clean is if you've scrubbed it on purpose, so what are you trying to hide? Arguably, the second case makes you look more suspicious and could get you some time in the special room behind the security desk.
(which is pretty much impossible as he was born in the US...)
The current administration would like you to hold its beer...
How low can they go?
They just deported a group of Vietnamese and Cambodians who came here as refugees. Allegedly, they are all criminals. I would not be terribly surprised if they are minor crimes, but no details were given. With the current administration, assuming the worst is usually a safe bet.
// disgusted.
If you're BORN in the United States, jus soli is in effect because of the 14th Amendment (reinforced by the Wong Kim Ark SCOTUS decision). The man can officially run for President. Where in the Constitution does authority allow for the stripping of birthright citizenship?
PS. If you say, "What Constitution?", then all bets are off anyway.
Keep anything you need in one or more cloud accounts. Don't write the URL to those accounts anywhere. Remember your pass-phrases.
Don't use Facefuck, LinkedIn, Officexxx, Googlex. If you're using dropbox (sad) or other cloud containers, get them through an anonymized account. Tor and Tor browser. VPNs (trusted) and proxies. End-to-end encryption - not services that say they encrypt it on their end only - they shouldn't be able to read your content, no matter what.
You can store whatever you want, wherever you want - just don't assume that you are the only person who knows about it. The safest place to store anything is in plain sight - I would be very surprised if any cloud storage was not being monitored these days.
As a resident of the U.S. and Los Angeles, I am deeply saddened by this behavior. Were I in the position to reign in federal departments, the DHS would be at the top of the list, but I am relegated to writing my congress critter about it. luckily I travel with a clean laptop and provide my place of employment, a major defense contractor, which usually stops any conversation regarding a clean laptop and phone.
"He made a lot more money before he ran for President."
He has form for turning a great big pile of money into a smaller pile of money whilst crowing about how wonderful a "legitimate biznizzman" he is.
Of course it's his sub-par intelligence coupled with a chronic craving for attention for being in the spotlight that's directed all the attention onto the dodgy deals his father engineered. Smart crooks don't draw attention to themselves. (Even smarter ones get people to eagerly GIVE you money in exchange for a promise of redemption in the next life and they've managed to generally engineer it to be tax free)
The US is reverse-evolving into a corruption driven government and a population that prides itself on being stupid and dumb. We don't even pretend that's it's not happening now; it's the new national pride.
Another 20 years of this and another country is going to invade us in the name of restoring democracy. The population will grab their rifles and feel confident that they're prepared to stop a modern foreign military.
"The US is reverse-evolving into a corruption driven government"
Um. No.
It's been that corrupt most of the time. It's just more obvious now than it was as people feel brave enough to discard the masks. Remember a fish rots from the head down.
There's a comic called "Brave new World" which was set in an alternate future forking from the mid 1950s based on a trajectory of how things were evolving with the mafia and monopolies taking over then. Think of Biff world and you wouldn't be far wrong.
When I travel to the US, I factory reset my phone prior to landing. That is recommended after a software upgrade anyway and I usually do updates when on an airplane as I have lots of time and can't use the phone regardless. That's the reason I give, if asked.
They can search it to their hearts content. It is unlocked, has no data and is without a password; search / image away. You are cooperating and it's the equivalent of carrying an empty carry-on bag. They can search all they like, there is nothing to find. They don't like it, but there is nothing they can do. I'm always polite, even in the face of idiocy.
When reset, there are no contacts, no emails and no software installed save Android itself. You are legally obligated to give US Border Guards passwords to any software, apps, email or encryption installed on your phone. You are in no way obligated to download and install apps to your phone or tablet, or sign onto a mail/web/social media account that is not active on your phone or tablet. How can you sign in, it isn't installed? I have few social accounts regardless and the few important telephone contact numbers I need are memorized.
When out of the airport, I sign into my Samsung account, and my phone repopulates with all apps and data in minutes on decent Wifi.
You are not legally obligated to give the US border guard any of that information. If you are not a US citizen, they are not obligated to let you into the US if you don't.
Also, our consumer authority investigated second hand smart phones 2 years back and found that most phone's factory reset doesn't clean up the data properly and the vast majority of it can be retrieved with simple tools. Only if the phone's drive is encrypted beforehand does a factory reset reliably make the data unreadable.
Anything within 100 miles of the border is a Constitution-free zone.
Under 8 U.S.C. § 1357(a)(3), CBP officers have the right to stop and conduct warrantless searches on
vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external
boundary of the United States.” Regulations define this “reasonable distance” as 100 air miles from any
external boundary of the U.S., including coastal boundaries, unless an agency official sets a shorter
distance.
They can also enter private property without a warrant (excepting dwellings) within 25 miles
of any border.
Because its not as if every year millions of Muslims make some sort of pilgrimage to Mecca or some such place.
And the border cops are right, someone carrying $2500 in cash is obviously a major international financier of who-knows-what-deviancy. Oh wait, forget that last part, I was thinking it was 1918, and not 2018.
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When the Charlie Foxtrot that is the TSA started, my husband and I were travelling by air a bit, within the USA. Every time we checked in, the desk person would look at our drivers' licenses, look at a computer screen, then say "Wait here" and disappear into the back for a bit. S/he would come back, hand us back our ID with a suspicious look, and say, "you can go". Notice the last name I share with my husband? Were there some Bader-Meinhof gang fugitives that we resembled? We are both fair-skinned and fair haired (now grey). I don't feel any safer for this scrutiny.
One hapless failed shoe bomber, and we all have to take off our shoes. Dozens of children shot dead in schools, and we can't take a gun away from an obviously crazy person. Is there a saner country? And can we have refugee status?
"the agents apparently accused him of being racist and disrespectful to the uniform."
We're required to be "be respectful to the uniform" now? That's pretty messed up right there. I respect people because they behave in a respectable way, not because of whatever uniform they happen to be wearing.
Have a second account with no admin rights, and when they force you to open your laptop and show them what is on it just login to that second login instead of your "real" one. Install a few innocuous apps/games, leave a few files laying around like PDFs of receipts from Amazon buying some random gadget that pegs you as a typical consumer. If they decide to try to image the whole PC, they won't be able to get at your real files, because you lack admin rights (claim it is a corporate owned laptop, or your spouse the IT expert maintains it, and you don't have admin rights)
You can keep whatever you want in an encrypted VM in that other (actually real) account, or in the cloud if you want to be extra careful.
Smartphones really need to support multiple user profiles so you can play the same game with the jackboots on them.
Smartphones have supported multiple users of years. My understanding is that this doesn't extend to iDevices, as they assume one user per device. The ability has been in place for Android devices for a number of years. Less useful on phones, but very useful for tablets etc shared within the home.
Unfortunately while there are some good suggestions to avoid getting your devices checked at the US borders, for the majority of people they aren't going to do them. Either they won't have the knowledge to do it or perhaps can't afford to do it. ie buying another laptop just for the purpose of travelling for what might be only 2 weeks seems a bit much.
Most people are just going to take the same devices they use daily (phones, tablets & laptops) and expect that, unless there is some real intel that they are are trying to enter a country to commit a crime, their devices should remain private.
The whole war on terrorism is purely a way for governments to be able to control their citizens. The actual number of people killed by terrorism in say the last 20 years, is less than how many people are killed every year on the roads or through pollution related illness. And yet the governments could introduce legislation to reduced these vehicle related deaths, such as increasing fuel duty to encourage people to use more public transport rather than cars, banning diesel vehicles, mandating all vehicles were fitted with telemetry devices and reducing speed limits. But this would be very unpopular with voters and the petrolchemical industry so they don't.
"But this would be very unpopular with voters and the petrolchemical industry so they don't."
You countered your own argument.
It isn't the government controlling the people but the other way around. This happens precisely because people are too stupid to weigh real risks and so don't support more regulation of road traffic or pollution but blame the government for failing to prevent terrorist attacks.
My dive buddy and I were travelling back from Malta with diving rebreathers.
Because of various logistical issues we had cylinders. We always carry the expensive, sensitive electronic head units in our carry-on and everything else goes in the hold in a peli case.
We always depressurise and open the cylinders which is a requirement to take them on any aircraft.
Having just passed through security, dealing with an extremely pleasant border guard who had taken our luggage to one side for further inspection and questions about what it was etc, my name was called on the tannoy.
I had to go back out of security to open both peli cases to show that the cylinders were indeed opened and depressurised.
Everyone was most apologetic at the delays. They promised they would treat our kit with respect and care and I watched as they reapplied cable ties and very carefully put the cases on the conveyor along with an "inspected" sticker.
When I returned to security, the same border guard recognised me and waved me through (i'd left my carry on with my dive buddy).
At every turn they were polite, respectful and even apologetic whilst going to great lengths to explain that they have a duty of care to the aircraft and other passengers to ensure the cylinders are depressurised.
I've heard stories (admittedly always second-hand) of rebreathers being "inspected" going through US customs with some kind of probe - puncturing the counterlungs and rendering the rebreathers useless until spares are bought.
"Citizen or alien, agents can rifle through your stuff if you're within 100 miles of the border"
For the purposes of this legislation, "the border" ALSO includes every international airport in the USA - and a 100 mile radius of them.
In other words there are about 200 square feet of USA territory that aren't actually included.
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