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
Bron, Raff, I don’t know what kind of market liberals like, but progressives like a Fair Market. I pay extra for Fair Market products.
Gene:
Now that’s draconian. I would have at least thought there was some sort of traditional customs type of search involved (for contraband / illegal weapons / agricultural pests / illegal aliens / undeclared dutiable items / endangered animal products / pathogens / import restricted items ) you know, the type of thing we came to understand. Now it’s a person’s private information that has nothing to do with the above in parenthesis.
Sadly, most Americans are going to be indifferent to this all because most of the upcoming generations put everything possible on facebook and social media caring nothing about their privacy. Too many others can be bought with Bread and Circuses.
I wonder if I can get the Irish consulate in SF to employ me and grant me an ambassadorship. Then I can claim diplomatic immunity from their warrantless searches. Just joking. I think.
Darren,
No. Basically they just need to want to from my reading of it. I read one account of a checkpoint in SoCal that wasn’t even on the border, but I didn’t include it in the column. People just being stopped while they were out grocery shopping.
Is a trigger for this require that the person to be searched must have crossed into the united states contemporaneous to the search? (not that it matters to me just curious)
This is a sham. Somehow the feds are looking at electronic files different than paper ones. 100 miles zone. What a joke.
HumpinDog 1, February 10, 2013 at 6:08 pm
Where is that LA cop when we need him?
***************************************
Huh-uh. Don’t go there! Not even. Just don’t go down that path at all.
I wonder what fallback position or program(s) the admin is planning to institute if this horrendous piece of crap gets effectively blocked? You know how it is with the Feds, once they have established a prime facie lie that there is a serious problem which threatens the safety of Americans they ride that wave of fear for all it’s worth.
So how does an individual gain standing Jonathan, as it must be challenged?
http://www.ebay.com/itm/Aftermarket-Assualt-Rock-Launcher-/130849388589?pt=LH_DefaultDomain_0&hash=item1e773b382d
when rocks are outlawed only outlaws will have rocks and launchers.
Where is that LA cop when we need him?
These are reasons why god made rifles.
Notice also that they did not go up the Mississippi with this edict. Yet look at all the traffic on that river. What about Hawaii? All of it I guess. DC?
Hide your laptops. Hide your wallets. Put your assets into gold and bury it. Go inland, Head for the mountains. Bring the rifle. Dont leave the dogs behind. Write your Congressman.
The antidote:
DonS:
Not at all, I think both parties did this to us. And I am all for voting for someone who would follow the Constitution. Liberal or conservative makes no difference to me.
I live in Virginia and our attorney general is running for governor, I am pretty sure he was behind the forced sonogram of women, if he was he isnt getting my vote and wont ever get my vote. I am not going to vote for a liberal who wants to raise my taxes and pile on more regulation either.
How about piling on some more freedom?
Bron, and how many of the Constitution loving “conservatives” do we expect to stand up for the Constitution by voting against Brennan. Or grilled him seriously in committee, except the usual kabuki? Are you throwing in the towel on the republicans too or is this an advertisement for them? At some point we all need to cut through party labels when we aver that we want to talk substance. Too much of the hypocrisy of our politics, IMO, is that the ground is constantly shifted. Either I’m for principle, to the extent I can find a pol with any, or I’m not.
Bron,
I don’t mean to argue, but I take exception to your claim that liberals don’t like the free market. Nothing could be farther from the truth. Liberals just want the free market to be free of rules bought and paid for by the wealthy. We are against monopolies and large chains and conglomerates that force out small businesses. Plus, I am no fool, although I can be foolish at times and I do not suck…except in Geometry!
the answer is to quit voting for party and start voting for people who will defend the Constitution. But liberals dont like conservatives and conservatives dont like liberals.
And conservatives dont like abortion and liberals dont like free markets [and neither do many conservatives] and everyone likes the free sh*t that comes to their counties by way of their elected representatives. And no one is willing to close the base in their town or not build the bridge that only serves 100 people per week.
And then there are the people who want art funded by government and who can ignore the people who want science funded by government. And then there are the corporations who want government to spend money advertising for them and corporations who want money to stay afloat.
Then we have to make accommadations for the third world dictators who steal foreign aid dedicated to their people and show up in the news as the worlds richest people.
We deserve what we have, we have thrown away something good for 30 pieces of silver. We have traded security for money in our pockets and we now have neither. What we have is an out of control government run by wanna be thugs who now need to protect their own jobs and who, apparently, will do it at our expense and at the expense of freedom.
We suck and we are fools. We let this happen, we did it to us. We can undo it by voting for real people who understand the Constitution as a document which protects individual rights, not as a document which provides free sh*t to anyone who wants it and legislation to fix things that dont need fixing.
Vote for non of the above in 2014 and find someone in your community who is a decent person and who understands the Constitution.
Gene,
Thanks … excellent education.
And kudos to OS too for the useful information and the link.
Time to pen another letter/email to my Representatives.
Interesting to read the comments…So what are we going to do? What are our options? Letters to editors, petitions, campaigns?
.Who knows, one of these days the so-called government of the people may actually dial the temperature a bit too high for us frogs in the pot of water, just before we doze off into a lovely boil.
Question is, then what? There really don’t seem to be any functional levers around adequate to adjust the authoritarian government juggernaut.
Will we still be debating the ‘lesser of two evils”?
Forgive my fatuous little romp through paranoid-land. Couldn’t ever happen. nah. Just look forward.
This is a story from the Mississippi Criminal Defense Law Blog. The blog is run by Ken Frye, an attorney in Oxford, MS. This is some serious food for thought. The story is called, “Criminal Records, the Internet & Digital Footprints.” I have a feeling I know where the TSA gets at least part of their “No Fly” list.
http://mscriminallawblog.com/2011/05/02/the-internet-.aspx?results=1#SurveyResultsChart
ID,
They don’t need any electronic patch. They can just electronically spy on my phone calls and emails. They may get bored though!