Are Smart Phones at the Border Protected by the Fourth Amendment | The American Face of Authoritarian Propaganda | Fighting ‘Terrorism’ on Streets with AI Spycraft, and more

The FTC, 1Health.io, and Genetic Data Privacy and Security  (Justin Sherman, Lawfare)
The Federal Trade Commission (FTC) has finalized an order with 1Health.io (formerly Vitagene), a genetic testing company that was the subject of a June 2023 FTC complaint. 1Health.io, to quote the FTC’s recent press release, “left sensitive genetic and health data unsecured, deceived consumers about their ability to get their data deleted, and changed its privacy policy retroactively without adequately notifying consumers and obtaining their consent.”
Genetic data privacy has been receiving more attention in the U.S.—including from intelligence organizations worried about national security risks; medical professionals evaluating discrimination threats and gaps in current law; advocacy groups concerned about law enforcement abuses and unchecked state surveillance; and members of the public with mixed opinions on companies sharing genetic data with police. While the particulars of these concerns vary, there is a clear, underlying recognition of the importance of genetic data and its protection.

Smart Phones at the Border: What Does the Fourth Amendment Protect?  (Jacob Pagano, Lawfare)
When Jatiek Smith arrived at Newark airport on a flight from Jamaica in March 2021, agents with Customs and Border Protection (CBP) processed a request from the FBI to search Smith, whom the FBI was investigating for possible participation in a conspiracy to submit fraudulent insurance claims, among other offenses. The agents, without obtaining a warrant, seized Smith’s phone and conducted a manual search, reviewing the phone’s text messages and then saving a copy of the phone’s data.
In a nonborder setting, the agents would have needed a warrant. As the Supreme Court made clear in Riley v. California, the Fourth Amendment provides individuals a heightened expectation of privacy in cell phones, which “differ in both a quantitative and a qualitative sense” from other items due to the immense amount of personal data they contain. Thus, warrants are generally required to search them, even when an individual is being placed under arrest. But here, the agents cited a well-known exception to that rule—the border exception, which presumes that border searches, including any de facto port of entry to the United States (such as an airport), are reasonable. Indeed, under the guiding law of both the First and Eleventh Circuits, no warrant would be needed to search Smith’s phone. The fact that the border agents made the search pursuant to their “border search authority” would place them in compliance with Fourth Amendment law.
But in a detailed opinion issued on May 11, Judge Jed Rakoff in the U.S. District Court for the Southern District of New York concluded otherwise, asserting that the aforementioned circuit courts have understated the Riley holding and overstated the border exception. Specifically, he held that, for searches of cell phones at the border, agents first need to obtain a warrant (Rakoff ultimately held the evidence on Smith’s phone admissible, because the agents subsequently obtained a warrant after the warrantless search). Rakoff’s holding, which notes an exception to the warrant rule for exigent circumstances and does not address whether the warrant rule extends to nonresidents or noncitizens, throws into relief a complex circuit split on the proper meaning of the Fourth Amendment’s border exception with respect to cell phones. Notably, the opinion adopts a rule similar to that suggested in proposed legislation from 2019, the Protecting Data at the Border Act, which would require agents to first obtain a warrant before searching the electronic device of a “United States person” at the border. 

One Day on the Border: 8,900 Migrants Arrested, and More on the Way  (Miriam Jordan, Jack Healy and Eileen Sullivan, New York Times)
A sudden surge of people from around the globe is showing up at the southern border, despite dangers and deportations. ‘If you don’t take risks, you cannot win,’ said one man who traveled from Peru.

The Man Who Trapped Us in Databases  (McKenzie Funk, New York Times)
A world in which computers accurately collect and remember and increasingly make decisions based on every little thing you have ever done is a world in which your past is ever more determinant of your future. It’s a world tailored to who you have been and not who you plan to be, one that could perpetuate the lopsided structures we have, not promote those we want. It’s a world in which lenders and insurers charge you more if you’re poor or Black and less if you’re rich or white, and one in which advertisers and political campaigners know exactly how to press your buttons by serving ads meant just for you. It’s a more perfect feedback loop, a lifelong echo chamber, a life-size version of the Facebook News Feed. And insofar as it cripples social mobility because you’re stuck in your own pattern, it could further hasten the end of the American dream. What may be scariest is not when the machines are wrong about you — but when they’re right.

Misinformation Research Is Buckling Under GOP Legal Attacks  (Naomi Nix, Cat Zakrzewski and Joseph Menn, Washington Post)
Academics, universities and government agencies are overhauling or ending research programs designed to counter the spread of online misinformation amid a legal campaign from conservative politicians and activists who accuse them of colluding with tech companies to censor right-wing views.
The escalating campaign — led by Rep. Jim Jordan (R-Ohio) and other Republicans in Congress and state government — has cast a pall over programs that study not just political falsehoods but also the quality of medical information online.
“In the name of protecting free speech, the scientific community is not allowed to speak,” said Dean Schillinger, a health communication scientist who planned to apply to the NIH program to collaborate with a Tagalog-language newspaper to share accurate health information with Filipinos. “Science is being halted in its tracks.”
Academics and government scientists say the campaign also is successfully throttling the years-long effort to study online falsehoods, which grew after Russian attempts to interfere in the 2016 election caught both social media sites and politicians unawares.

Rightwing Extremist Views Increasingly Widespread in Germany, Study Finds  (Kate Connolly, Guardian)
Rightwing extremist and anti-democratic attitudes are becoming increasingly widespread in Germany, according to a study examining the public’s political views. Commissioned by the Friedrich Ebert Foundation, which is closely affiliated with the Social Democratic party, the study showed that 8% of the population had a distinctly rightwing extremist view of the world, a rise of between 5% and 6% on previous studies, while the “centre middle” was becoming “ever more receptive to misanthropic positions”. The findings also showed that an increase, to 6% of those questioned, advocated social Darwinist views, agreeing with the statement “there are worthy and unworthy lives”, up from 2% to 3% since 2014. More people than in previous studies – 15.5% – considered themselves to be “right of centre”, while 55% saw themselves as “exactly in the centre”, compared with 60% or above in the previous decade.

American White Nationalists Are Fleeing US Sites for Russian Platforms. Here’s Why (Gustaf Kilander, Independent)
American extremists are popping up on Russian social media platforms for two reasons: One – they’re there. Two – they’re much less moderated. That’s the simple outline physics professor Neil Johnson at Georgetown University gave to The Independent over a video call. On Facebook, far-right communities are “like a PG 13 version of what they can do on other sites just because of moderation,” the Harvard-educated Brit says. “Certain kinds of symbols, hate speech, and activities can get them shut down. And since they rely on followers and support, they don’t want to be shut down.” The extremists instead post links on Facebook directing users to Russian platforms. The shooter who murdered eight people and injured another seven in a shooting in Dallas in May of this year had an account on OK.RU – a Russian social media site – using it to interact with content shared by white nationalists, according to NBC News.

New Orleans DA Fights ‘Terrorism’ on Streets with AI Spycraft  (Kate O’Keeffe and Cameron McWhirter, Wall Street Journal)
The case against Dijon Dixon, accused of killing Cornelius Smith in 2019, looked to be falling apart after a key witness backed out following an online death threat. Then prosecutors presented the defense team with a detailed and dramatic timeline featuring some of Dixon’s social-media posts—including one in which the serial numbers of the Glock he was holding were partially visible. Dixon took a plea deal. bThe timeline was assembled by a team of people who once tracked international terrorists online and now are working for first-term New Orleans District Attorney Jason Williams. The newly created task force is working to use machine-learning to autogenerate subpoenas for social-media and wireless companies, analyze the reams of data obtained and create vivid, detail-packed timelines. Williams hired the team of 11 to take a 21st-century approach to tackling a surge in violent crime, exacerbated by an understaffed police department and an enormous backlog of cases.

Far-Right Violence a Growing Threat and Law Enforcement’s Top Domestic Terrorism Concern  (Laura Barrón-López and Saher Khan, NPR)
The Proud Boys played a critical part in carrying out the Jan. 6 attack, but the group is just one part of a trend of increased white supremacist and far-right violence. Top U.S. law enforcement officials say those extremist movements are the biggest domestic terrorism threat facing the country.

Hammerskins: German Branch of US-Based Neo-Nazi Group Banned  (DW)
German Interior Minister Nancy Faeser banned the extremist far-right group Hammerskins Deutschland as well as its regional branches and the affiliated group Crew 38.
The Hammerskins Germany is an offshoot of the Hammerskins Nation founded in the United States in 1988.