This defendant was convicted of possessing CSAM. Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible.
Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a court-appointed attorney) was a career criminal. It's the same with freedom of speech cases: they often involve jerks and assholes; otherwise, they probably wouldn't have gotten arrested in the first place.
You can root for the right outcome without rooting for the defendant.
I’d take it one step further and say they deserve to have their rights respected as well and the outcome pursued by law to reinforce the ethics undergirding law. It seems like this person was a target and they would have eventually got him — this was simply an expedient shortcut.
> Before that fact causes you to lose sympathy for the case, note that almost every significant criminal case affirming constitutional rights involves a defendant who did something unsavory, if not reprehensible.
Not always. Often times prosecutors pick cases with bad fact patterns to be test cases when they want to attack a right. A recent example is Biden DoJ choosing to take US v Rahimi to SCOTUS in an attempt to wheel back the NYSRPA v Bruen decision.
What you say seems true. But a comment - there are more effective ways to achieve it than a bill of rights. Australia doesn’t have a bill of rights but does have decent due process, as a result of deliberate legislation. The bill of rights leads to the US Supreme Court being highly politicised because it is a nasty undemocratic backdoor to synthetic legislation. Australia does not have a politicised high court.
I'm Canadian, and as a fellow commonwealth citizen I don't think relying on common law precedent is stable. The common law, after all, is just whatever a judge says it is, and judges can be bought or unduly influenced.
As we're seeing in the United States, the Rule of Law itself is being fundamentally eroded. Laws in the USA are worth essentially nothing now, because the Executive Branch is brazenly and openly ignoring the law and Congress is either too inept or too corrupt to do anything about it. That culture of lawlessness is not going to just go away. It's already started and will continue to "trickle down".
What's more, neither the USA nor either of our countries are immune from political appointment of justices, and it's my understanding that Australia has in fact had some supreme court justices who were previously parliamentarians (sorry if these are not the correct terms), so that seems politically-motivated to me. The USA is merely ahead of us in crumbling, but I think we're in trouble too because their fucked-up political culture is so insidious in its spreading.
We've seen similar in Britain, with its much-vaunted "uncodified constitution". These systems, much like the common law itself, only work when everyone's more or less on the same page.
But when you have an entire political party that revels in shattering constitutional/governmental norms and conventions to the detriment of its perceived political enemies, the whole system gets ugly real quick.
> That culture of lawlessness is not going to just go away. It's already started and will continue to "trickle down".
Only for as long as it's allowed to continue. When the people who are acting lawlessly and those enabling it are finally held accountable and an example is made of them things can get back under control. It's just a question of how long it takes for accountability to happen and how painful that process will be for the rest of us. I'm still hoping it'll be as quick and painless as possible, but the longer it goes on the less likely that seems.
It's a tough call. On one hand, the feds were really reaching by singling out the defendant for inspection based on:
1) a vague notion that South America is a higher risk of CSAM and sex trafficking (the government's CBP witness couldn't even say that that background CSAM rate in the countries the defendant had traveled from was higher than in Virginia, the state of the defendant's port of entry), and
2) a vague FinCEN report that there was some unspecified payment activity between the suspect and an account or accounts believed to be of underage individuals.
On the other hand, the defendant consented to the initial search after being read a miranda warning and signing a waiver, and did in fact have a pattern of catfishing victims to get them to send CSAM. He also had banned coca products (doesn't sound like cocaine, probably just coca leaves or something) that they were citing him for.
I'd like to think the feds or any LE should need some reasonable suspicion of a particular crime before investigating them for that particular crime. I don't think they had that. This wasn't a generic border search and enhanced questioning (to find out if there was anything specific worth investigating).
I think the judge was lazy in concluding that the search was justified, and wanted to leave it to appellate courts to exclude evidence if it meant letting the defendant go.
Is the current state of the law really that anyone who within the last few years ever transferred any money to a minor, and happens to be coming from any country outside the 1st world, is subject to an inspection and initial cursory search of digital devices for specific illegal material because it's "Look for CSAM month"? I find that difficult to believe, and appalling if true, regardless of any crimes that were uncovered.
I think the question is whether border patrol can decide ahead of time to do a targeted search for a specific crime, and specifically search phones, which everyone understands and acknowledges store a massive amount of information about people, without reasonable suspicion of that particular crime.
Extended questioning, a pat-down or other physical search, and cursory search of luggage for physical contraband (all at international port of entry, of course) is still not the same as scrolling through someone's media gallery and files.
Correction to my previous (GP) post above: The miranda warning and waiver of rights was after the consensual search of his phones. That could be very important. If law enforcement suspects you of a specific thing enough to want to search your phone, but they don't have enough evidence that you're a suspect who merits a miranda warning, what are they doing asking to search your phone?
While everyone can save themselves from this scenario by saying no to searches, it's obvious that this was a fishing expedition. I think EFF should (but probably won't) prevail on the theory that phones have too much of our lives to be allowed to be searched like that, even voluntarily.
Suppose cops went door to door asking to enter and take a look around for contraband. I doubt courts would uphold cops' power to ask to look at people's phones (maybe asking for a cup of coffee while they do it). Regardless of whether the individual consents, it's too much of a breach of privacy without any particular reasonable suspicion of anything in particular.
Case law seems to focus on length and intrusiveness of temporary detention. I'd say this was too lengthy, too specific, and too intrusive for the measly "evidence" (coming from Colombia, and a FinCEN report that didn't allege any impropriety, just financial transfer(s) to a minor) they purported to have.
This is even more important than it sounds because the US federal goverment considers 100 miles inland from any international border (including the great lakes, etc) as being "the border". And that is where 80% of the people in the USA live.
That's incorrect, or at best misleadingly incomplete. 8 USC §1357(a) authorizes border agents to, "(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States."
The associated regulations, 8 C.F.R. §287.1, interpret "reasonable distance" to mean up to 100 miles from the actual border. But: "In fixing distances not exceeding 100 air miles pursuant to paragraph (a) of this section, chief patrol agents and special agents in charge shall take into consideration topography, confluence of arteries of transportation leading from external boundaries, density of population, possible inconvenience to the traveling public, types of conveyances used, and reliable information as to movements of persons effecting illegal entry into the United States."
The statute and regulation just mean that agents don't need to patrol the border at the literal border--which in some cases runs through the middle of bodies of water. But they must justify the determinations of what's a "reasonable distance" from the border must be based on what's needed to prevent illegal entry into the United States, based on factors such as topography and transportation routes.
I'm reading the statute this comes from [0] and its associated definitions [1] but I don't see that it's as bad as you made it sound. (I don't love it, still.)
The 100 mile "reasonable distance" is used to define where vessels and vehicles may be searched for aliens.
But the warrantless search may only be applied to persons seeking admission for whom an officer has suspicion of reasonable cause for denying the person entry.
Of the 80% of people living within that distance (which is an upper bound, btw; the agents in charge are required to set a bound not to exceed that by taking into account such things as "density of population, possible inconvenience to the traveling public.") almost none can be suspected of being under reasonable cause for denial of entry.
So to do the thing you are fearing, 1) the chief patrol agent has to set the distance to encompass an inappropriately large area in violation of this law, 2) an agent has to stop and search cars randomly, and 3) somehow become suspicious that an occupant is seeking entry and ought to be denied entry, and 4) believe that searching that person's device would reveal information demonstrating that the suspicion is correct.
It's not great, but it's not "80% of Americans can have their devices searched without a warrant".
> The U.S. Border Patrol has stated: "Although motorists are not legally required to answer the questions 'Are you a U.S. citizen, and where are you headed?' they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S."
I'm not convinced "the law says you can't do that" is super meaningful in 2026.
> I'm not convinced "the law says you can't do that" is super meaningful in 2026.
In fact, we're finding out very quickly that "what the government can do" is in practice, only limited by the rest of the government's willingness to push back. The set of things grows every time the government tries something new and receives no push back from the other two branches of government that are captured by the same political party.
> I'm not convinced "the law says you can't do that" is super meaningful in 2026.
Exactly. Everyone reading extremely fine distinctions into the relevant laws should at least do the work of also showing that those laws are currently applied in the manner they imply. To do otherwise is to speculate on how the law would be applied in a country operating under the rule of law, and that’s of little immediate application.
> To do otherwise is to speculate on how the law would be applied in a country operating under the rule of law, and that’s of little immediate application.
It's not speculation. It's lived experience. And while I understand most probably don't have it, it doesn't invalidate it.
> 1) the chief patrol agent has to set the distance to encompass an inappropriately large area in violation of this law,
Certain to happen.
> 2) an agent has to stop and search cars randomly,
Not at all. "Based on my training and experience, Mexicans drive Subarus. Your driving a Subaru gives me a reasonable suspicion to conduct a non-random stop on you.". Yes, it gets very close to that stupid, and a lot of times they even believe stuff like that. Even if they don't believe it, they know the lie isn't falsifiable. A system that lets random officers get away with unreviewed searches is a problem even if they do have to commit perjury to take advantage of it. Because they will.
> 3) somehow become suspicious that an occupant is seeking entry and ought to be denied entry,
Well, yeah, they're sitting right there in the freaking Subaru. Boom. Reasonable suspicion.
> 4) believe that searching that person's device would reveal information demonstrating that the suspicion is correct.
Well, if the suspicion were correct, it probably would. And if the suspicion is incorrect, even if the suspicion is a deliberate bullshit lie, anything they do find becomes fair game.
Sorry, no. Probable cause. And independent judicial review on your probable cause. Not trivial legitimization of totall bullshit suspicions.
Yeah, the law interpreted by a reasonable person isn't the end of the world. But that's not how the DHS's ICE or CBP interpret it or how they operate. And now they're even using their probably illegal interpretation (via internal secret memos) outside of the 100 mile zone.
There's Supreme Court precedent establishing that this isn't the case. ACLU itself had backed off it, last I checked, but since they used it for a very long time in fundraising, people will never, ever stop believing that 80% of the United States lives in a "Constitution-free zone". You cannot in fact be border-searched on the streets of Chicago; in fact, you can't even be border-searched at a lawful fixed immigration checkpoint.
Border searches need a nexus to an actual border crossing.
The words of the law don't seem to matter much anymore. If the government does something, and they receive no push back (either from the people supposed to be checking-and-balancing, or from the victim in the form of successful lawsuits), then they, for all intents and purposes, can in practice do that thing.
Which would encompass all large coastal cities, the gulf coast and much of Texas/new Mexico /Arizona / socal due to proximity to Mexican border + Chicago/Michigan/etc due to proximity to Canadian border
AFAICT, the line is 100 miles from the border as defined as "the edge of the US," not as defined as "100 miles from a foreign country."
This line[1] encompasses places even as far inland as Columbus, Ohio, and Columbus, Georgia, which are good examples of being perhaps least border-feeling, non-coastal cities that I've ever spent time in.
I wouldn't blame anyone for having never visited the grand metropolis of Fort Wayne, Indiana, but that's within 100 miles of the line, too.
Lots of other unlikely cities are this way are this way as well.
International airports are a border and fall under CBP. So do "vessels", busses that may move between countries, etc.
> Employees traveling internationally on behalf of an organization must take steps to protect sensitive, confidential, or proprietary data carried on electronic devices. U.S. Customs and Border Protection (CBP) has broad authority to inspect electronic devices—regardless of citizenship—at U.S. airports, land borders, seaports, and preclearance facilities abroad.
Miranda was a kidnapper and rapist. Danny Escobedo (right to an attorney during interrogation) murdered his brother-in-law. Clarence Earl Gideon (right to a court-appointed attorney) was a career criminal. It's the same with freedom of speech cases: they often involve jerks and assholes; otherwise, they probably wouldn't have gotten arrested in the first place.
You can root for the right outcome without rooting for the defendant.
Not always. Often times prosecutors pick cases with bad fact patterns to be test cases when they want to attack a right. A recent example is Biden DoJ choosing to take US v Rahimi to SCOTUS in an attempt to wheel back the NYSRPA v Bruen decision.
As we're seeing in the United States, the Rule of Law itself is being fundamentally eroded. Laws in the USA are worth essentially nothing now, because the Executive Branch is brazenly and openly ignoring the law and Congress is either too inept or too corrupt to do anything about it. That culture of lawlessness is not going to just go away. It's already started and will continue to "trickle down".
What's more, neither the USA nor either of our countries are immune from political appointment of justices, and it's my understanding that Australia has in fact had some supreme court justices who were previously parliamentarians (sorry if these are not the correct terms), so that seems politically-motivated to me. The USA is merely ahead of us in crumbling, but I think we're in trouble too because their fucked-up political culture is so insidious in its spreading.
We've seen similar in Britain, with its much-vaunted "uncodified constitution". These systems, much like the common law itself, only work when everyone's more or less on the same page.
But when you have an entire political party that revels in shattering constitutional/governmental norms and conventions to the detriment of its perceived political enemies, the whole system gets ugly real quick.
Only for as long as it's allowed to continue. When the people who are acting lawlessly and those enabling it are finally held accountable and an example is made of them things can get back under control. It's just a question of how long it takes for accountability to happen and how painful that process will be for the rest of us. I'm still hoping it'll be as quick and painless as possible, but the longer it goes on the less likely that seems.
It's okay: just like with any other socially hot topic, it gets renamed every few years. Previously it was called CP.
This is a never-ending cycle of virtue signaling.
https://storage.courtlistener.com/recap/gov.uscourts.vaed.55...
It's a tough call. On one hand, the feds were really reaching by singling out the defendant for inspection based on:
1) a vague notion that South America is a higher risk of CSAM and sex trafficking (the government's CBP witness couldn't even say that that background CSAM rate in the countries the defendant had traveled from was higher than in Virginia, the state of the defendant's port of entry), and
2) a vague FinCEN report that there was some unspecified payment activity between the suspect and an account or accounts believed to be of underage individuals.
On the other hand, the defendant consented to the initial search after being read a miranda warning and signing a waiver, and did in fact have a pattern of catfishing victims to get them to send CSAM. He also had banned coca products (doesn't sound like cocaine, probably just coca leaves or something) that they were citing him for.
I'd like to think the feds or any LE should need some reasonable suspicion of a particular crime before investigating them for that particular crime. I don't think they had that. This wasn't a generic border search and enhanced questioning (to find out if there was anything specific worth investigating).
I think the judge was lazy in concluding that the search was justified, and wanted to leave it to appellate courts to exclude evidence if it meant letting the defendant go.
Is the current state of the law really that anyone who within the last few years ever transferred any money to a minor, and happens to be coming from any country outside the 1st world, is subject to an inspection and initial cursory search of digital devices for specific illegal material because it's "Look for CSAM month"? I find that difficult to believe, and appalling if true, regardless of any crimes that were uncovered.
> Q Do you have any particular training in child exploitation?
> A Yeah. I've taken a few trainings.
Extended questioning, a pat-down or other physical search, and cursory search of luggage for physical contraband (all at international port of entry, of course) is still not the same as scrolling through someone's media gallery and files.
Correction to my previous (GP) post above: The miranda warning and waiver of rights was after the consensual search of his phones. That could be very important. If law enforcement suspects you of a specific thing enough to want to search your phone, but they don't have enough evidence that you're a suspect who merits a miranda warning, what are they doing asking to search your phone?
While everyone can save themselves from this scenario by saying no to searches, it's obvious that this was a fishing expedition. I think EFF should (but probably won't) prevail on the theory that phones have too much of our lives to be allowed to be searched like that, even voluntarily.
Suppose cops went door to door asking to enter and take a look around for contraband. I doubt courts would uphold cops' power to ask to look at people's phones (maybe asking for a cup of coffee while they do it). Regardless of whether the individual consents, it's too much of a breach of privacy without any particular reasonable suspicion of anything in particular.
Case law seems to focus on length and intrusiveness of temporary detention. I'd say this was too lengthy, too specific, and too intrusive for the measly "evidence" (coming from Colombia, and a FinCEN report that didn't allege any impropriety, just financial transfer(s) to a minor) they purported to have.
It's possible this was parallel construction.
> EFF to Fourth Circuit: Electronic Device Searches at the Border Require a Warrant
The associated regulations, 8 C.F.R. §287.1, interpret "reasonable distance" to mean up to 100 miles from the actual border. But: "In fixing distances not exceeding 100 air miles pursuant to paragraph (a) of this section, chief patrol agents and special agents in charge shall take into consideration topography, confluence of arteries of transportation leading from external boundaries, density of population, possible inconvenience to the traveling public, types of conveyances used, and reliable information as to movements of persons effecting illegal entry into the United States."
The statute and regulation just mean that agents don't need to patrol the border at the literal border--which in some cases runs through the middle of bodies of water. But they must justify the determinations of what's a "reasonable distance" from the border must be based on what's needed to prevent illegal entry into the United States, based on factors such as topography and transportation routes.
The 100 mile "reasonable distance" is used to define where vessels and vehicles may be searched for aliens.
But the warrantless search may only be applied to persons seeking admission for whom an officer has suspicion of reasonable cause for denying the person entry.
Of the 80% of people living within that distance (which is an upper bound, btw; the agents in charge are required to set a bound not to exceed that by taking into account such things as "density of population, possible inconvenience to the traveling public.") almost none can be suspected of being under reasonable cause for denial of entry.
So to do the thing you are fearing, 1) the chief patrol agent has to set the distance to encompass an inappropriately large area in violation of this law, 2) an agent has to stop and search cars randomly, and 3) somehow become suspicious that an occupant is seeking entry and ought to be denied entry, and 4) believe that searching that person's device would reveal information demonstrating that the suspicion is correct.
It's not great, but it's not "80% of Americans can have their devices searched without a warrant".
[0] https://www.law.cornell.edu/uscode/text/8/1357
[1] https://www.law.cornell.edu/cfr/text/8/287.1
> The U.S. Border Patrol has stated: "Although motorists are not legally required to answer the questions 'Are you a U.S. citizen, and where are you headed?' they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S."
I'm not convinced "the law says you can't do that" is super meaningful in 2026.
In fact, we're finding out very quickly that "what the government can do" is in practice, only limited by the rest of the government's willingness to push back. The set of things grows every time the government tries something new and receives no push back from the other two branches of government that are captured by the same political party.
Exactly. Everyone reading extremely fine distinctions into the relevant laws should at least do the work of also showing that those laws are currently applied in the manner they imply. To do otherwise is to speculate on how the law would be applied in a country operating under the rule of law, and that’s of little immediate application.
It's not speculation. It's lived experience. And while I understand most probably don't have it, it doesn't invalidate it.
Then it should be easy to cite recent case law backing up their claims, hmm?
https://youtube.com/watch?v=Vica_-UEg0Q
Certain to happen.
> 2) an agent has to stop and search cars randomly,
Not at all. "Based on my training and experience, Mexicans drive Subarus. Your driving a Subaru gives me a reasonable suspicion to conduct a non-random stop on you.". Yes, it gets very close to that stupid, and a lot of times they even believe stuff like that. Even if they don't believe it, they know the lie isn't falsifiable. A system that lets random officers get away with unreviewed searches is a problem even if they do have to commit perjury to take advantage of it. Because they will.
> 3) somehow become suspicious that an occupant is seeking entry and ought to be denied entry,
Well, yeah, they're sitting right there in the freaking Subaru. Boom. Reasonable suspicion.
> 4) believe that searching that person's device would reveal information demonstrating that the suspicion is correct.
Well, if the suspicion were correct, it probably would. And if the suspicion is incorrect, even if the suspicion is a deliberate bullshit lie, anything they do find becomes fair game.
Sorry, no. Probable cause. And independent judicial review on your probable cause. Not trivial legitimization of totall bullshit suspicions.
Border searches need a nexus to an actual border crossing.
This? https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuer... or is there newer now?
> ACLU itself had backed off it, last I checked
They did, the current page greatly narrows the scope of their border-zone guidance to the SCOTUS case I linked before: https://www.aclu.org/know-your-rights/border-zone
Which would encompass all large coastal cities, the gulf coast and much of Texas/new Mexico /Arizona / socal due to proximity to Mexican border + Chicago/Michigan/etc due to proximity to Canadian border
This line[1] encompasses places even as far inland as Columbus, Ohio, and Columbus, Georgia, which are good examples of being perhaps least border-feeling, non-coastal cities that I've ever spent time in.
I wouldn't blame anyone for having never visited the grand metropolis of Fort Wayne, Indiana, but that's within 100 miles of the line, too.
Lots of other unlikely cities are this way are this way as well.
[1]: Here's a map on ArcGIS. I only found it; I did not have any part in creating it: https://www.arcgis.com/apps/mapviewer/index.html?webmap=f43e...
> Employees traveling internationally on behalf of an organization must take steps to protect sensitive, confidential, or proprietary data carried on electronic devices. U.S. Customs and Border Protection (CBP) has broad authority to inspect electronic devices—regardless of citizenship—at U.S. airports, land borders, seaports, and preclearance facilities abroad.
https://www.potomaclaw.com/news-Border-Search-Inspection-of-...
It's extremely complicated:
https://cdt.org/insights/no-warrants-and-half-a-dozen-differ...