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Under the Microscope 03-14-17
Essay: Judge Gorsuch and the Fourth Amendment, 69 Stan. L. Rev. Online 132
Posted on March 13, 2017 by Hall
Sophie J. Hart & Dennis M. Martin, Essay: Judge Gorsuch and the Fourth Amendment, 69 Stan. L. Rev. Online 132 (March 2017):
Posted on March 13, 2017 by Hall
Sophie J. Hart & Dennis M. Martin, Essay: Judge Gorsuch and the Fourth Amendment, 69 Stan. L. Rev. Online 132 (March 2017):
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Before Justice Scalia, pragmatic balancing tests dominated the Court’s Fourth Amendment doctrine. But by 2008, Justice Scalia had succeeded in reframing the Court’s analysis. In an opinion joined by seven other Justices, he wrote: “In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.”
Like Justice Scalia, Judge Gorsuch has advocated an originalist interpretation of the Fourth Amendment. But he has not applied that originalist approach to all Fourth Amendment questions. This Essay traces Judge Gorsuch’s jurisprudence in two areas of Fourth Amendment doctrine. Part I considers his decisions regarding searches of homes and personal property, where he has adopted and extended Justice Scalia’s common law approach. Part II contrasts that approach with Judge Gorsuch’s decisions regarding Terry stops, where he has proven even more willing than many of his peers to employ the sort of totality of the circumstances inquiry that Justice Scalia so eschewed. In each Part, we also consider how Judge Gorsuch’s particular brand of originalism might impact Fourth Amendment issues looming on the Court’s horizon. read more |
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Senate bill would require a warrant for border phone searches
It comes alongside a surge in agents asking to see travelers' cellphones. Jon Fingas, @jonfingas ENGAGET March 13, 2017 Did US border agents insist on searching the contents of your smartphone during your latest trip, privacy be damned? You're not alone -- Homeland Security has revealed that searches by Customs and Border Protection are surging, growing from under 5,000 in all of 2015 to 5,000 just this February. However, there might soon be legislation that keeps these searches in check. Oregon Senator Ron Wyden is preparing a bill that would not only require a warrant before border officials can search the devices of US citizens, but strictly forbid them from asking for passwords. They'd need a legitimate reason to believe your phone holds something shady, not just a hunch. Right now, these searches are completely legal. While the Constitution's Fourth Amendment normally protects you against warrantless searches of your devices, that doesn't count for border crossings within 100 miles -- officials can even keep devices for 5 days without offering an explanation. In that regard, Wyden's bill would close a gap in civil rights for at least some of the population. CBP's own policy hasn't been updated since 2009, at a time when smartphones were only just becoming popular and data privacy wasn't as paramount an issue as it is today. .... read more |
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Is it legal for officials to search your phone when you're traveling?
Catharine Hamm March 13, 2017 LOS ANGELES TIMES
Question: I've been confused by various articles about a policy whereby the authorities are demanding travelers provide them with their passwords so they can check the contents of their smart phones and/or laptops. What is happening and is this legal? -Albert J. Milo Anaheim Hills
Answer: Concerns about requests for electronic devices heightened after Sidd Bikkannavar, a NASA engineer, was recently detained in Houston, where Customs and Border Protection asked for the PIN number for his employer-issued phone.
Bikkannavar, born in the United States, was returning from South America when he was detained, according to news reports. He was reluctant to give Customs the PIN because the phone contained employer-related information. He ended up doing so.
If you are faced with the same situation, should you allow your electronic devices to be searched?
The answer depends on your tolerance for inconvenience, your sensitivities about your privacy, and whether you agree with the reason for the searches.
Before wandering down those paths, your first question may be about legality, given the 4th Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” read more
Catharine Hamm March 13, 2017 LOS ANGELES TIMES
Question: I've been confused by various articles about a policy whereby the authorities are demanding travelers provide them with their passwords so they can check the contents of their smart phones and/or laptops. What is happening and is this legal? -Albert J. Milo Anaheim Hills
Answer: Concerns about requests for electronic devices heightened after Sidd Bikkannavar, a NASA engineer, was recently detained in Houston, where Customs and Border Protection asked for the PIN number for his employer-issued phone.
Bikkannavar, born in the United States, was returning from South America when he was detained, according to news reports. He was reluctant to give Customs the PIN because the phone contained employer-related information. He ended up doing so.
If you are faced with the same situation, should you allow your electronic devices to be searched?
The answer depends on your tolerance for inconvenience, your sensitivities about your privacy, and whether you agree with the reason for the searches.
Before wandering down those paths, your first question may be about legality, given the 4th Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” read more
