Your Rights Under Attack: What A Difference 100 Miles Makes

Stock Photo of the Consitution of the United States and Feather Quillby Gene Howington, Guest Blogger

We are all aware of and concerned about the steady erosion of our civil rights at the hands of ever overreaching Federal government. It is a topic that brought many of us to this blog and a topic that draws more audience every day. The latest victim of tyranny is the 4th Amendment. The 4th Amendment to the U.S. Constitution reads:

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.”

Seems pretty straight forward.  However, the DHS has apparently decided to void the Constitution if you live within 100 miles of the U.S. border. Your electronics may be seized and your data searched if you live or are travelling within 100 miles of the border. This is not a new story. This policy has been known since 2008.  From the beginning there were calls for Congress to reign in the overreach of the the Department for Reich, er, Homeland Security that went unheeded. Most of the calls were for residential traveller exemptions. However, there are new developments. This draconian policy, neglected by Congress, has been unilaterally declared just fine and dandy by the DHS itself in yet another example of the Executive unilaterally claiming unconstitutional powers over citizens with their only check being their own rubber stamp. This policy not only vitiates the 4th Amendment, but has implications for the 1st and 14th as well.

To get an idea of the scope of this “Constitution-free Zone”, consider this map:


Consider too that fully two-thirds (2/3)  of the United States’ population lives within this Constitution-free Zone.   That’s 197.4 million people, including everyone in Hawaii. And Florida, Rhode Island, Maryland, Connecticut, New Jersey, Massachusetts, Maine, New Hampshire and Michigan. Aloha!

Regarding the 4th Amendment concerns, the DHS (in their superficial two page memo) declared that “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”  Yeah, who needs those pesky Constitutional protections when they interfere with the DHS doing whatever they want to mind your business. What is perhaps most troubling about this memo is its superficial nature. That conclusion quoted above? Is the entire breadth and depth of their analysis in justification of this policy. It is the legal equivalent of “because we said so.”

Their stunning hubris and lack of substantive rational also stretched to the 1st Amendment:

Some critics argue that a heightened level of suspicion should be required before officers searchlaptop computers in order to avoid chilling First Amendment rights. However, we conclude thatthe laptop border searches allowed under the ICE and CBP Directives do not violate travelers’First Amendment rights.” – That is their entire analysis, by the way.

The 14th Amendment does manage to garner more attention than either the 1st or 4th though:

The Constitution forbids intentional and invidious discrimination by the federal government on account of race, religion, or ethnicity. Accordingly, we recommended that CBP supplement the Department’s overarching antidiscrimination policy by stating explicitly in policy that it is generally impermissible for officers to discriminate against travelers—including by singling them out for specially rigorous searching because of their actual or perceived race, religion, or ethnicity, and that officers may use race, religion, or ethnicity as a factor in conducting discretionary device searches only when (a) the search is based on information (such as a suspect description) specific to an incident, suspect, or ongoing criminal activity, or (b) limited to situations in which Component leadership has found such consideration temporarily necessary based on their assessment of intelligence information and risk, because alternatives do not meet security needs. CBP agreed and this change has been implemented.

In addition, we recommended that CBP improve monitoring of the distribution of electronic device searching by race and ethnicity by conducting routine analysis, including semi-annual examination of electronic device searches by port of entry. After controlling for known relevant and permissible factors, such as port traveler demographics, and inclusion in watchlists, lookouts, and targeting rules, the analysis should assess whether travelers of any particular ethnicity—estimated using document information and name analysis—at any port of entry are being chosen for electronic device searches in substantial disproportion to that ethnicity’s portion of all travelers through the port. Data and results should be shared with CRCL. This recommendation is being implemented on an ongoing basis.
As part of conducting the impact assessment, we reviewed data on all non-watchlist-related device searches in FY2009 and FY2010 (Oct. 1, 2008–Sept. 30, 2010); we did not find evidence that searches were prompted by the ethnicity of travelers. If from future analysis of data it appears that electronic device searching in any port has a substantial unexplained skew towards travelers of one or more ethnicity, we have recommended that CBP work with CRCL on developing appropriate oversight mechanisms; subsequent steps generally should include a requirement of supervisory approval for searches (absent exigent circumstances) or enhanced training, and may include other responses to ensure that such concentration is not the result of bias or other inappropriate decision-making. CBP has agreed.” [emphasis added]

I feel so much better knowing that they aren’t discriminating indiscriminately when violating the Constitutional rights of citizens unless their “component” leadership decides it is otherwise necessary. I also love that they capitalized the word “component” in the memo. It instils the greatest faith that their components are probably incompetent.

Is this matter worthy of Congressional redress? Some think so, but there has been no movement on the proposed Travelers’ Privacy Protection Act (.pdf), introduced in the Senate by Senators Russ Feingold (D-Wisconsin) and Maria Cantwell (D-Washington) in 2008 and it is dead in committee in its current form.

Is this matter worthy of judicial review? Absolutely. History teaches us that unchecked power remains unchecked as long as it is unchallenged.

Is this a symptom of a wider problem with the Executive? I think unquestionably so. From border policy to drone policy to detention policy to the kill list, we see an ever increasing move by the Executive to claim unitary power and use it to dispose of our Constitutional rights. I think reigning in the abuses of the Executive branch should be the number one priority in every upcoming electoral cycle until the problem is addressed and the Office of the President brought back into the fold of the checks and balances created by our Founding Fathers in the Constitution. Why? Because of the historical parallel of an Executive chipping away at citizens rights and the powers of the courts and legislature and how that ended. You all know his name. A minor league German pol that rose to power on a message of fear and hatred to eventually become one of the greatest monsters in human history. To think that it can’t happen here is a myth of epic proportion.

What do you think?

Source(s): Wired (1, 2), ACLU (1, 2),  U.S. Constitution, DHS Civil Rights/Civil Liberties Impact Assessment Border Searches of Electronic Devices (.pdf), Travelers’ Privacy Protection Act (.pdf), Tracking on Travelers’ Privacy Protection Act

~submitted by Gene Howington, Guest Blogger

76 thoughts on “Your Rights Under Attack: What A Difference 100 Miles Makes”

  1. I’m glad you liked it Michael. You might also enjoy the Propaganda Series of articles. They are on going. You can find them by searching blog for the term “Propaganda 10”. I’ll also suggest this one, but fair warning, it has a lot of comments so may take a bit to load: What Makes A Good Law, What Makes A Bad Law?

  2. This is an amazing piece of information, and writing.
    I certainly did not know this. I wonder if there are any reports that example people being treated differently in these zones based on this distinction of 100miles?
    I’ll keep an eye out.

    What I wonder about in all these sorts of posts is just what, after all, is left of our underlying principles? And why is the Supreme Court not actually doing its job? (I know … that is a loaded question, one with v.obvious retorts.)

    On a related note, and in response to OScribe above re laptops and phones, this fellow Jacob Appelbaum, is routinely stopped in his travels. He documents the stories in various forums if you care to follow up.

    It is increasingly hard to escape the conclusion that the enemy that is the subject of our governments concerns is the citizenry. Which then reminds me of Aleksandr Solzhenitsyn who wrote in The Gulag Archipelago that the people most feared, and who got the harshest treatment in the Soviet system were the 58’s – the politicals, not the murderers, rapers and other more standard criminals. Its in the book. Vol2.

  3. So let me understand this, if a United States citizen lives, resides or works within 100 miles of a national border like Canada or Mexico; or the Pacific or Atlantic Ocean they are all subject to search and seizure of their electronic, private items, house or vehicle; that these areas are to be considered police state areas where individual rights guaranteed by the supreme law of the land, the U.S. Constitution and Bill of Rights, are no longer guaranteed? Where the hell are the Constitutional Lawyers? What is the Supreme Court for? Weren’t there legal presedences against this form of fascism already decided by the Judicial branch of our government? Must Americans in mass defy these 100 mile police states to send a loud and clear message that such actions against American citizens are treasonous acts?

  4. Gene,

    By far this is the best Collum written. Very seldom does anyone of these threads stick out as much as this one. Thank you.

  5. Woody,

    You know he’s going to jump on it the moment he gets the list….. You’re safe…. Did you sign it….then probably not….

  6. Good idea, you decide? Will it happen? Not if big brother decides.

    Remember the long video clip of the person being beseiged by border patrol (?) agents at a traffic stop?

    And do you remember Cadillac offering automatic on-line via satellite reporting of any car ills, stops ,etc. What the details and goodies offered escaped me, but it is years ago now and time for a successor in the price range of working Americans.

    It is time for Toyota to offer a Liberty model which includes cellphone recording of video, but also simultaneos sending to a cloud address which only you can access.

    A few kinks and possible additions necessary.

    Like a body embedded cell which will signal when you are subjected to extreme duress, etc. A LEO detector against plainclothed ones.

    Once started the marketing will take care of itself, and new Toyota features and independent apps with come rapidly.

    It, connected to a PA/COM system, will allow selectable menus for different situations where the cell speaks a fault free spiel, and voice recognition which selects pervect counters to LEO spoken words. Or alternately give you the mike and a script to follow if your personal voice is required.

    I am not a agent for Toyota, but having possibly a copyright hereby, I am asking for preliminary orders. 😉

  7. Without our second amendment rights, what is to keep them from putting us in railcars and shipping us out to where ever they decide we need to be?? Without it there can never be a push back.

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