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
i have run out of money to support the ACLU and still have a home. What do the people do now? We have all the questions what about the answers to this problem.
Bud, there are reports in the news of travelers being hassled at airports by TSA for having sections of the Bill of Rights silk-screened on their t-shirts. TSA finds the Second and Fourth Amendments especially offensive and possible “terrorist threats.” People have been forbidden to fly while wearing that on their clothes.
This is a study that has been replicated a number of times. As a class assignment in civics or government, students go to a public place, such as a mall, set up a table, and ask passersby to sign a petition. The “petition” is the Bill of Rights, paraphrased into modern easy to read language.
Very few people are willing to sign the “petition.” The average mall shopper does not recognize the Bill of Rights.
Students have been called Commies and traitors, and those are just some of the names that can be put on this blog without tripping the bad language filters.
We are in more danger than many people realize. And our “leaders” and financial sector wizards want to keep it that way.
Almost like they were targeting liberals?
OS, Great idea for screen saver.
I’d be a little worried that it might get me shot in
the arse or something… You know how they fear for
their lives these days… A constitution can be very
very scary.
You are absolutely correct in your analysis on our erosion of civil rights. Talk to most people, including those that watch “news” and you find out how lacking they are in a basic understanding of 1) what our rights are, and 2) how things have been changing over the past several years.
A few months ago, most did not know about a President’s kill list, despite Eric Holder explaining the policy last year. Now that it is public the response is “oh well, I think their killing terrorists so its must be good”.
Where will it end?
Let’s see, Sunday lunch clear, all will head for the sofa.
I am eating fresh pasta etc. Guaranteed fresh for 3 weeks.
Lucky Sunday roast eaters.
BFN.
Rafflaw,
Read Scientific American Dec 2012. They got electronic patchs which can be applied to the nape of the neck which (heat powered) can relay your brain waves to a nearby monitor, etc etc.
And we thought 1984 was scary.
Thanks a lot Gene. 🙂 It warms the cockles of my heart to know that I am living in a Constitution free area, which I always suspected about Florida anyway. Now it seems that my summer home is also in the Constitution Free, area even though it is located in the mountains more than 100 miles from NYC and seemingly foreign borders. It is both interesting and distressing that the birth of these liberties can be traced back to 13th Century England as an aspiration for “free men”. Our Constitution was an attempt to roll back the deterioration of those “Magna Carta” principles in England that occurred from the 14th Century onward.
Fear is always the handmaiden of oppression. We saw Lincoln suspend the right of habeas corpus in the Civil War. We saw the purges of the “Red Scare” during and after WWI. We saw the illegal imprisonment of Japanese Americans after Pearl Harbor followed by the “terror” of the USSR with McCarthyism following in its heels. In Viet Nam our fear of the “Domino Effect”
led us to disaster. 9/11 though seems to have engendered such fear in us that we are Abandoning the Bill of Rights wholesale, except for the Second Amendment. The only freedom being left to us is to own firearms, which seems to me far less important than our other ones. However, there is profit to be made in weapons manufacture and distribution. Profit at all costs has become the new “America Way”.
The “scrolling 4th Amendment copy” is a good idea.
And lets all buy dumb cells and blabla PCs. I say blabla because I did not understand what kind it was and could not master the tech part anyway.
But might just buy one to frustrate the DHS with the scrolling etc.
I suspect that they will seize me at the border. Anyone living 44 years voluntarily in another nation is SUSPICIOUS.
And yeah, I think they will search your home and all things there. Living close to the border is good enough suspicion, and they will willingly swear to it.
GeneH,
Hear, hear!
Humor with lethal likelihood? Or the fear that you all should be feeling, and apparently do. What is my answer?
Just to show my confusion as to GeneH’s position, I ask if DHS or CBP is the proximate cause and if there is proof of it.
When I point with fear, I get skit for it. When GeneH does he gets praise.
Hardly fair or egalitarian.
Anyway, skit aside, it was a fear raising post.
And do we think that Congress or the Courts will do anything about it?
You can bet your sweet drone that they won’t.
I don’t own a laptop. I used to but hated it. My fingers don’t fit laptop keyboards very well–my hands are the size of the average NFL wide receiver. If I did get a laptop for travel, I would do what my friend does, and keep it blank, accessing my files remotely. One thing I would do, my screen saver would be a copy of the 4th Amendment scrolling across the screen.
I carry a cell phone. It does exactly two things. Send and receive phone calls. Voicemail? Forget it. Pictures? Nope. Speed-dial? Nope. Games or apps? Nope. I have not even bothered to learn how to use my daughter’s smart phone because I have no use for one.
It is not because I am a technophobe. It is deliberate.
I recall reading about a well known political activist who traveled outside the country. When he came back through customs, they asked to see his cell phone. He told them it was at home in a dresser drawer. The customs people seemed angry and upset and called him a liar. He simply grinned and replied he did not take his regular phone with him for this very reason. When he gets to his destination, he buys a throwaway cell phone, then destroys it and tosses it in the trash before returning through customs. They were truly pissed with him for not having a cell phone on his person or in his luggage.
I have a friend who has a spare laptop for travel. It has absolutely nothing on it but the basic programs that can open files on a CD. He keeps all his files on a confidential encrypted account that he accesses as needed, then deletes and wipes. Basically, he uses his traveling laptop as a “dumb terminal.” He is a forensic scientist and does not want the results of any of his investigations to fall into the hands of ANYBODY. The laptop he got is a small one, and has no files on it. His original purpose was that he takes it with him to court, rather than a briefcase full of papers. Before going to court, he copies all the files on that particular case to a CD or DVD. If counsel opposite demands to see his file there is nothing on the laptop but the file on that one client.
It is a sad state of affairs that we have come to this.
Raff… Think Florida…. Michigan….there is no point more than 85 miles from the Great Lakes…. All of or mostly all of New England….. This is probably the most important issue gene has written about in a while….
Thanks Gene. That is how I read your source material. It is amazing that 75% of the population of Illinois is in a “Constitution Free Zone”! I have to go get my tin foil hat on now to protect them from searching my brain matter.
raff,
My reading of it is if CBT has a suspicion about your electronics, reasonable or not – unfounded or not, they can seize it where they find it as long as you are within 100 miles of the border. As to Chicago, apparently the DHS considers the border starting at the water line.
Damn. I was beginning to get used to the lack of most of the Bill of Rights. Now you hit me with this and a bit more is gone. What’s left? The 2nd amendment but that’s under attack, too.
I am stunned to find out that I live in a Consitution free zone. Why is it that none of our elected representative who have sworn to protect and defend the Constituion from enemies foreign and domestic have said a peep about this? The State of the Union is becoming more and more depressin. Could some one remind me why I voted for Obama? Oh, I remember he was the lawyer of two evils. Depressing.
Scary news Gene. I am also confused by the Great Lake states being included in the Coastal water designation. Chicago is over 300 miles from the Canadian border, but because it is on Lake Michigan, it also is included??! Since I live within 100 miles of Lake Michigan, can DHS come to my house to search my laptop? Or do I have to be traveling on a plane, train or automobile? It would be hilarious if it wasn’t so scary.
Wow… Thanks… Did not know this…. This is crazy….