Homeland Security: Not Searching Your Laptop Doesn't Benefit Your Civil Liberties, So We Can Do It
from the interesting-4th-amendment-interpretation dept
We've written many times over the years concerning the legality of Homeland Security searching your laptop at the border without reasonable suspicion. Many courts have held that, effectively, the 4th Amendment does not apply at the border, so they don't need a warrant to search your laptop. However, they've been continually pushing this ability further and further. For example, they got a court to say that this applies not just while you're at the border -- they can take your laptop off site to search it and hang onto it for a while. However, that time, they at least needed to have a "reasonable suspicion." DHS has taken a pretty firm stand that it must be able to keep doing this. While the ACLU and the EFF and others keep challenging these rules, to date the only possible crack was in a case where there's evidence that the search was politically motivated.Late last week, a bizarre finding popped up. Back in 2009, when DHS announced its new rules for laptop searches at the border, it also promised that it would do its own "Civil Liberties Impact Assessment" within 120 days. Three years later, Homeland Security's Orwellian "Office of Civil Rights and Civil Liberties" has finally released a two page executive summary of the findings, which more or less says "there are no civil liberties issues" with laptop searches. What else would you expect them to say? The ACLU has filed a FOIA request for the full report, but let's just focus on the most horrifying statement in the executive summary:
We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. 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.That statement is so bizarre I read it half a dozen times before I was sure it really said what it appears to say. It appears to be a somewhat stunning redefinition of how one reviews whether or not something violates the 4th Amendment. Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.
Meanwhile, since Homeland Security has similarly argued (as part of these cases) that its Constitution Free zone for searches applies to any place 100 miles from the United States border, some are pointing out that this means that every electronic device -- computers, cell phones, you name it -- in Detroit can be searched with absolutely no reasonable suspicion under DHS's interpretation (since Detroit is less than 100 miles from Canada). But don't worry, since there is little civil liberties or civil rights benefits to not searching your stuff, DHS says it's okay.
Oh, and in case you're wondering on what basis DHS makes this assessment, it appears to be based on their own directives rather than on any "laws."
So, if you're playing along at home, DHS has decided, based on its own review of its own directives, that it can search any electronic device within 100 miles of the border without requiring a warrant, probable cause, reasonable suspicion or anything like that -- because actually respecting the Constitution "would be operationally harmful" and wouldn't really create any "civil rights/civil liberties benefits" for you.
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Filed Under: 4th amendment, border searches, civil liberties, civil rights, homeland security, privacy
Reader Comments
The First Word
“Ummmmm
Not conducting those searches would have civil rights/liberties benefits.It would give us civil rights/liberties.
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Like I said before...
The law of the land is granted to the government by the constitution, if it doesn't apply within 100 miles, then why should Federal law apply?
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Re: Like I said before...
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those 'rights', 'laws', etc are an example of 'diode morality', only works in one direction, from the top, down, NOT from the bottom, up...
now, AVERT your gaze, peasant, as our betters will tell us what rights we may possibly have, if they so generously allow...
*snicker*
hint: power NEVER devolves voluntarily...
art guerrilla
aka ann archy
eof
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Re: Like I said before...
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Are you > 100 mi. (ca. 160 km?) north of the 49th parallel?
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Re: Like I said before...
1) The federal government exists because of the Constitution.
2) The Constitution does not apply within 100mi of the nation's borders.
3) Washington DC is within the 100mi exclusion zone.
Therefore nearly all of the federal government doesn't exist.
So, problem solved, I guess.
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Re: Like I said before...
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Re: Like I said before...
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Nice Godwin (and only a third of the way down the page). SD, SA, SS, and Gestapo all had it. Their sworn allegiance (blood oath) was to der Fuhrer himself.
It's astonishing to read that this is happening (again) in my lifetime. A government bureaucracy is getting away with saying that a law intended to constrain them does not exist.
How the mighty (USA) have fallen.
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Not just Detroit,
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Re: Not just Detroit,
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Glad I live very far from any borders, not that I expect that to stop them. However, the encrypted drive might, at least slow them down a bit, until they can put Titan, Sequoia, or some other government super computer to work on it.
Won't they be surprised when all they find is a recipe for Fruit Cake.
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Re: Re: Re: Re: Not just Detroit,
http://xkcd.com/538/
They just need to break some fingers. Remember the constitution is not in effect and the US has a long history of ignoring the rules regarding...
Funny, trying to come up with the word torture and all that popped into my head was terrorism. Funny how those things happen...
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I now know that, by virtue of where I live, the 4th does not apply. Nice.
I guess my question is, why bother with the silly 100 mile limit? Don't they want to search people in Idaho, too?
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Man, the Autocrats are in the house.
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When you plot 100 mile radius circles around every international airport in the US, and any area within 100 miles of a border, you find that 90% of the United States is now an area where the constitution no longer applies.
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ACLU's map of the Constitution Free Zone
http://www.aclu.org/constitution-free-zone-map
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Re: ACLU's map of the Constitution Free Zone
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Re: ACLU's map of the Constitution Free Zone
:-)
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Re: ACLU's map of the Constitution Free Zone
That is disturbing.
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Can Customs arrest you for having dirty pictures?, pornography?, Child Porn?, Documents in Russian and classified by the Russian government? Non US financial transactions in which you did not pay the appropriate US tax?, Non US financial transactions in which you did not pay the appropriate foreign government tax?
Just what can and can not Customs arrest you for?
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Truely frightening.
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Before they say that respecting the constitution is "operationally harmful", they should have to show that violating the constitution actually helps their "operations".
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If I had to guess, then I'd guess that the only "benefit" gained from laptop search is in the form of industrial espionage on behalf of some Corporation A (i.e., for A's benefit) at the expense of some other Corporation B.
Perhaps this is done "patriotically," where A is from good ol' USA and B is some foreigner. Or perhaps there is some other method of quid pro quo. I don't suppose we'll ever know until after the end of the permanent war.
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So yes, they just have to CREATE threats to justify violating the Constitution.
The US might as well just burn the Constitution then.
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I think they'd be even more upset (that's your intention, yes?) if you left them in, mailed your data to your destination, and did a "cat /dev/urandom > /dev/sda1"
They may spend decades trying to decrypt that.
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That's nice. You show up and all the gorillas run inside.
Your all powerful mighty biggun brotha pwns ur arses nao!
Plz be sure to keep those corrupted agents on YOUR SIDE of the border.
Coming to you through borderline insanity.
DHS, youse guyes dun bother to vaycay up here 'coz we'll just toss ur butters back ovah teh lecctick fence, again.
Now, go bother the b4a7s#17 crazy korean kim jong-un who professes to lurve ur 'Muricans evah so mutch, and give his fat arse a good buttering up before you fry it nice n crispy like.
He who looks too far ahead stumbles over his own boots.
Your Country Ends On Your Side!
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Re: That's nice. You show up and all the gorillas run inside.
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Re: That's nice. You show up and all the gorillas run inside.
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If you blink >.< ...
You have a full tank of gas, a pack of smokes, it's dark out, and you're wearing sunglasses.
Deja doo-doo...In that deep stuff again.
Welcome to Earth; where we can't have nice things.
To jaw-jaw is better than to war-war.
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Friendly nation...
If the rest of the world is really lucky the US will tank their own economy and fail to recover. Sure that'll f*ck up the rest of the world for a while too, but even that and afterwards China being the world's leading economy and super power would be better at this stage.
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Re: Friendly nation...
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Absolutely Not
Don't even get me started on that 100 mile rights-free zone B.S.
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Re: Absolutely Not
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Soon
So sad what we have let happen.
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Re:
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Good news
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How Did We Get Here?
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Mike--
Wow indeed. Your inability to reason is amusing. As you indicated earlier in your post, the Fourth Amendment does not apply at the border ("Many courts have held that, effectively, the 4th Amendment does not apply at the border"). Thus, they are not "violat[ing] the Constitution" at the border since they can't be violating rights that people don't have. I know your extremist zealotry doesn't permit you to see obvious truths. I can't help you with that. You'd have to start by pulling your head out of your ass and by thinking logically. I know. I know. You can't do that.
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Are you sure you're okay with 200 million Americans not having ANY 4th Amendment protections, including a majority of California, New York, all of Florida, the entirety of the New England area...
I know I'm not.
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The government gets its authority from the constitution.
If the constitution doesn't apply, then the government can't get authority to grant anyone anything.
Just think on that for awhile.
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Granted, there are times that I think the Supreme Court has its head up its ass, but that's neither here nor now.
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First Amendment
Some critics argue that a heightened level of suspicion should be required before officers search
laptop computers in order to avoid chilling First Amendment rights. However, we conclude that
the laptop border searches allowed under the ICE and CBP Directives do not violate travelers�
First Amendment rights.
Then this astounding deduction ... even though they have caused people to miss flights and in some cases detained people on the side of the road for hours they don't feel that any time restraints need to be applied.
Time Limits and Privileged Materials
Current policies ensure reasonable efforts at promptness and, accordingly, we do not believe that
setting specific time limits is necessary. We also find that the 2009 ICE and CBP Directives
appropriately address the need to take special precautions when dealing with sensitive
information, such as attorney-client materials, attorney work product, business information, trade
secrets, and medical records. Additional safeguards are not needed
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It does, however, mean that the ruling authority is not the US, even if it claims that it is. It would be just a group of very well-armed thugs, no different than any other group of well-armed thugs.
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It's too bad you don't spend as much time, you know, doing something product as insulting Mike. You might actually become a beneficial member of society if you did that.
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You can't just pick and chose what parts of the Constitution you want to uphold. It's all or nothing. And if it's nothing, then the Federal government has no authority.
You seem to be the one with his head up his ass, unable to think logically.
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quote Mow "Power comes out of a gun."
To
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Jesus wept... it's Mao, not Mow. And if you're going to quote Mao, you should actually, you know, quote the words he actually said:
"Every Communist must grasp the truth: Political power grows out of the barrel of a gun."
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Re:
> 4th Amendment does not apply at the border".
> Thus, they are not "violat[ing] the Constitution"
> at the border since they can't be violating
> rights that people don't have.
Except the Constitution itself has no such 'at the border' exception for the Bill of Rights, so basically this is just a bunch of guys in black robes ignoring the law to suit the aims of the government.
If they ruled tomorrow that people have no right to worship as they please, never mind what the 1st Amendment actually says, that wouldn't make them right. It would just make them corrupt.
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Ummmmm
It would give us civil rights/liberties.
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Re: Ummmmm
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Soviet Union border zone was tens of kilometers
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Re: Soviet Union border zone was tens of kilometers
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The defendant was within 100 miles of the border and since the DHS has stated that there are no 4th Amendment rights within 100 miles of the border, there is therefore no Constitution at all within 100 miles of the border. Therefore the State of Washington's constitution is the supreme law of the area where the defendent was selling marijuana, and since it is legal in Washingon to sell marijuana under certain conditions, the defendant has broken no laws.
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They also refused to release the full text
The details for how they determined these searches are legal is being kept secret.
This is extremely disturbing.
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I had to deal with this...
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Re: I had to deal with this...
As for your specific stop, that's par for the course. I am Hispanic, and have traveled with friends/family who were VERY obviously Hispanic, they usually just ask if everyone is a U.S. citizen and have a drug dog sniff around the vehicle. Then wave you through. If it's extremely busy, traffic wise, they literally wave people through, unless you look "suspicious".
There's another similar checkpoint on the "back roads" (even though it's not really a back road) to Laredo. Forget the name of the city it's in. Except that one is smaller. The one in Falfurrias is way bigger and has more agents working there.
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Okay, this is downright disturbing...
Now, from an optimistic POV, the chances that the DHS would actually try and use their "all ur electronics belong 2 us" legalese logic are probably 0.0000000001% to zero. However, the cynic in me says that this new option will be close to the top five options Homeland Security is willing to use at the drop of a hat.
As the Zen Master says, "We'll see."
Also, having DHS's internal office doing the "Civil Liberties Impact Assessment"? The phrase "fox guarding the henhouse" fits this scenario to the letter.
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Florida
> that every electronic device -- computers,
> cell phones, you name it -- in Detroit can be
> searched with absolutely no reasonable suspicion
Even better-- the entire state of Florida is a Constitution-free zone, since 100 miles from each coast meet in the middle.
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Wrong people doing the 'assessment'
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Constitution Yes or No
Both cannot exist.
So the real question comes up. Do we ignore the rules made under the auspices of a Constitution that are now void due to we don't actually have a Constitution that covers 100% of American Citizens/Residents? (Does the court exist that might actually see this?).
OR
Well I guess the alternative is to lay down before the MAN and cower in fear and adulation (isn't that what they want?) so we can continue to exist in this free society...(sorry for the non sequitur but I thought that is what we are/were/should be).
OR ELSE
What do the pertinent powers that be think the next step will be?
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DHS is anti-American
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