DHS declares Search and Seizure rights inside 100 miles of USA border

by Billie Greenwood, AllVoices

Your electronic devices are subject to seizure and search if you’re within 100 miles of the US border without a warrant–even if you have done nothing to raise any suspicion. Last week, the Department of Homeland Security (DHS) quietly posted notice. If within 100 miles of the US border, travelers’ electronic equipment may be seized and its contents searched.

ConstitutionFree

Map outlines in orange the “Constitution-free zone” of the United States, an area that stretches 100 miles inward from the borders of the nation.  Nearly two-thirds of the US population live in this area wherein the Fourth Amendment guarantees are suspended. [Image credit: American Civil Liberties Union (ACLU)]

This is acceptable, according to a new government report, not only without a warrant but even if there’s no reason for suspicion. Wired reports the practice was declared perfectly legal by the DHS watchdog assessor. After all, it’s all done in the name of national security.

You’re not convinced? Neither is the American Civil Liberties Union, which filed a Freedom of Information request Friday demanding to see the full report.

Back in 2009, DHS had announced an upcoming “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy for electronic devices. That assessment was going to happen “within 120 days.” But now, more than three years later, a mere two-page summary of the findings of that assessment quietly appeared on the DHS website.

The assessment’s conclusion, says the ACLU, is “highly questionable.” The border search policy, according to the executive summary, does not violate the Fourth Amendment right to privacy, neither does it dampen First Amendment rights to freedom of speech and association, nor does it produce discriminatory search practices.

ACLU attorney Catherine Crump simply hopes to establish that “the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence…” Further, the ACLU would like to clarify “that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”

Suspicionless electronics search

President George W. Bush’s administration first announced the suspicionless, electronics search rules in 2008. And the next year, the Obama administration enforced virtually the same rules. DHS data reveals 6,500 persons had their electronic devices searched along the U.S. border between 2008 and 2010.

Legal precedent excludes the border from rights guaranteed by the Fourth Amendment — the right to be free from unreasonable searches and seizures. This area, by government contention, stretches 100 miles inland from the nation’s actual border. This includes the coastal borders, and because most of the US population is concentrated along the coasts, the “Constitution-free zone” wherein the Fourth Amendment doesn’t apply includes some 66 percent of the population, or approximately two-thirds of the nation’s citizens.

Minimally, a “reasonable suspicion” to prompt such a search should be requisite. That still falls far short of the Constitutional-level standard as guaranteed by the Fourth Amendment.

The Case of Pascal Abidor

One unlucky 26-year-old dual U.S.-French citizen stumbled into the electronics policy in 2010 while on a trip home to New York. Abidor was travelling from Montreal on an Amtrak train when his laptop was not only searched by also confiscated by Custom and Border Patrol officers.

Abidor, an Islamic Studies doctoral student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charges. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched.

Abidor’s only “wrongdoing,” says the ACLU, was crossing the border as an Islamic Studies graduate student at a Canadian university after having recently traveled to the Middle East. They represent Abidor in a lawsuit that is pending in New York federal court.

Eroding Rights

Some say it hasn’t been a good year for US civil rights and liberties.

As 2012 ended, President Obama quietly signed a five-year extension of the FISA Amendments Act of 2008. This guaranteed unchecked surveillance authority for the rest of his presidency. Government surveillance of Americans’ international emails and phone calls–without obtaining a court order for each intercept–would have died without his end-of-year signature.

The first-ever use of an unmanned drone to assist in the arrest of an American citizen was upheld in federal court last summer. And this weekend, fugitive Christopher Dorner became the first human target for remotely-controlled airborne drones on US soil, asLos Angeles police announced plans to hunt him with the flight technology, accoridng to reports in multiple media outlets.

This week the Obama administration came under fire when an unclassified memo from the Justice Department revealed that it allows for the killing of Americans through an expansive definition of what constitutes an “imminent” threat.

Related, by author: Does My Laptop Have a Right to Remain Silent?

Sources

ZeroHedge. Goodbye Fourth Amendment: Homeland Security Affirms “Suspicionless” Confiscation Of Devices Along Border

Wired. DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border

ACLU Blog. ACLU Files FOIA Request for Unreleased DHS Privacy Report on Laptop Searches at the BorderAbidor v. Napolitano: ACLU Challenges Suspicionless Laptop Border Search Policy

Common Dreams. Obama Quietly Signs Abusive Spy Bill He Once Vowed to Eliminate

US News. Court Upholds Domestic Drone Use in Arrest of American Citizen

Express. Man hunt for ex-soldier who shot police chief’s daughter and killed policeman

Associated Press. Justice Department document says it’s legal to kill U.S. citizens abroad

Democracy Now. Obama administration agrees to share assassination memos after uproar

Billie Greenwood is based in Davenport, Iowa, United States of America, and is an Anchor for Allvoices.

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Copyright (c) 2013 by PolyMontana LLC or by the author. All rights reserved.

Comments

  1. 1
    johndalmas says:

    Holy crap, this stupid confusion needs to stop.

    First of all, border searches in the US have been around for as long as the US has been a country; if you’re coming into the country, or leaving it, customs can go through your stuff. This has never been found to conflict with the fourth amendment; the traditional explanation, as I understand it, is that the right of a sovereign (in this case, the US govt) to control the flow of goods into and out of the country is necessary and well established, and so these warrantless, suspicionless searches at the border are not “unreasonable” (if you want to come in or go out, the sovereign has a right to control what you bring with you) and so are not in conflict with the fourth amendment (which only precludes “unreasonable” searches and seizures).

    The one thing I can guarantee you is that DHS is NOT saying that everyone living within 100 miles of a land or sea border is subject to being border searched. Without a “nexus” to some persons or property moving internationally, there is no border authority and, thus, no ability to search without a warrant. Even if you say that anything within 100 miles of a land or sea border is the border, you’d still have to be in transit, or be in contact with property that is in transit, ACROSS the border (FROM one country INTO another country), which no one just living in this area would be (which means, none of them would be subject to border searches).

    What seems to have gone wrong in the article is this:

    1) The ACLU is having a fit about immigration checkpoints set up within 100 miles of the physical border. They point out that DHS is claiming (though I’m not sure where the ACLU is getting this) that the border extends 100 miles inland from the physical land/sea borders and that Border Patrol is setting up IMMIGRATION checkpoints in this area. ACLU’s objection is to a practice enforcing IMMIGRATION law. Personally, I don’t see how immigration checkpoints are different from DUI checkpoints (which isn’t to say that I agree that DUI checkpoints should exist). Either way, the point is irrelevant. No one (except a handful of articles, like this one) is claiming that DHS is doing border searches of anyone within 100 miles of the border. They’re setting up checkpoints and checking the passports and immigration documents of people who pass through those checkpoints. They are NOT claiming border authority to search any electronic devices those people might have.

    2) The ACLU also seems to be having a fit about border searches of electronic devices that are done at the border to passengers actually arriving/departing the US. Nowhere does the ACLU assert that the border searches of electronic devices to which it objects are being done in this 100 mile zone to people not moving in international travel.

    3) This article is conflating border patrol’s setting up immigration checkpoints within 100 miles of the border with CBP (customs and border protection) and ICE examining electronic items that are actually in international transit. The two are not nearly the same. DHS has
    NOWHERE claimed a right to conduct border searches of electronic devices anywhere within 100 miles of the physical border; if they did, the first judge in the lawsuits to follow would laugh them out of court. Any talk of the border extending 100 miles from the physical land and sea borders clearly does NOT refer to or implicate the authority to conduct border searches of electronic devices (or of any other property). That search authority arises ONLY in relation to passengers and property actually in international transit (or who/which were in international transit and have suffered no material change before the search is conducted). I see nothing to indicate that DHS has challenged this.

  2. 2

    Gov. paranoia by consent.

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