by 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