Steve Bellovin
A question for Real Lawyers on the circuit split on the border search exception for digital device searches (https://www.findlaw.com/legalblogs/law-and-life/cbp-border-phone-searches-face-patchwork-of-rules-for-returning-u-s-citizens/): what circuit’s rules control what can be done in a border search outside the physical boundaries of the country, e.g., at a Canadian airport?
CBP Border Phone Searches Face Patchwork of Rules for Returning U.S. Citizens - FindLaw

Can CBP search your phone and social media at the border? Learn how the border search exception works, and why your rights change depending where you cross.

FindLaw Blogs
Mar 26 at 1:21pmWeb
Show threadKarl Auerbach1d ago

@SteveBellovin Why such a complicated question at such an early hour?

I certainly do not know the answer, but a few thoughts did pop into my still groggy head...

First is precisely where did the search happen? For instance was it in one of those US immigration/customs stations that are physically at Canadian airports? Are those under any sort of treaty arrangement?

Second, if I remember correctly, didn't SCOTUS rule on the geographic extent of district court orders (i.e. to block orders that cover outside of the court's geographic bailiwick.)

Third is that we always seem to assume that phone searches are looking for data. I can imagine that when one is looking for explosives or drugs that a search could be to weigh the phone. And for data, what about cloud data (wherever that is) that is not on the phone and for which the phone is merely a portal?

Show threadSteve Bellovin1d ago
@karlauerbach My mind wandered there when someone asked me another question about airports… And I'm in EDT, so I'm not quite as groggy. I'm also asking about appellate court decisions which are of course binding within their circuits, not district court orders. And yes, I'm asking about searches at, e.g., Canadian airports. (There are such deals with other places, too, e.g., Shannon Airport in Ireland.) It's obviously done by international agreement but I don't know if it's via a Senate-ratified treaty.
Searches for physical contraband on the phone would always be allowed. Per https://www.eff.org/deeplinks/2019/08/ninth-circuit-goes-step-further-protect-privacy-border-device-searches at least in the Ninth Circuit cloud data would seem to be off-limits without a warrant.
Ninth Circuit Goes a Step Further to Protect Privacy in Border Device Searches

The U.S. Court of Appeals for the Ninth Circuit issued a new ruling in U.S. v. Cano [.pdf] that offers greater privacy protection for people crossing the border with their electronic devices, but it doesn’t go as far as we sought in our amicus brief.Cano had attempted to cross the border near San...

Electronic Frontier Foundation
Show threadSteve Bellovin1d ago
@karlauerbach The agreement is at https://www.treaty-accord.gc.ca/text-texte.aspx?id=105453, but as best I can tell is not a "treaty" under US law.
View Treaty - Canada.ca

Show threadslash1d ago

@SteveBellovin IANAL, but it's not a question that's occurred to me. And I have a very thick tin-foil-hat, so that's embarrassing.

I pretty much stopped flying when TSA was invented (except for work), and resolved to never take electronics with me if I cross a border.

Since the SCOTUS ruled that I have no Constitutional rights withing 500 miles of any border, especially the 4A rights, I keep nothing of value on my phone anyway, since it's always at risk.