The Fourth Amendment is Now Optional Goodbye, Fourth Amendment!

By Source: found here

Friday, February 15th, 2013

It came out a couple of weeks ago: the executive summary of a report issued by the Department of Homeland Security (DHS) called, “Civil Rights/Civil Liberties Impact Assessment: Border Searches of Electronic Devices.”

Basically, the DHS was charged with the responsibility of determining whether or not its policy of seizing laptops and cell phones from travelers is a violation of both civil and constitutional rights.

Any moderately-educated American could answer that question quite simply — but no, we had to spend a few more tax dollars for the government to figure that one out. And you’ll never guess what the DHS concluded…

According to the new gatekeepers of our liberty, the Department of Homeland Security’s search policy doesnot violate both the First and Fourth Amendments.

That’s right. These guys believe that allowing government agents to search the contents of your laptop, cell phone, and other electronic devices — without reasonable suspicion of any wrongdoing — is both completely acceptable and legal.

Not So Fast…

laptop searchAccording to attorney Katie Haas, for more than four years now it has been the official policy of the DHS that Immigration & Customs Enforcement and Customs & Border Protection (the two agencies that monitor the border), can look at information on citizens’ laptops, cell phones, hard drives, and other devices, and sometimes keep the information or share it with others — even when there is no suspicion that the device contains evidence of wrongdoing.

Haas writes that the DHS has essentially adopted a policy of peering into anyone’s data, at any time, for any reason.

And through a Freedom of Information Act (FOIA) request filed back in 2010, it has been discovered that between October 2008 and June 2010, about 3,000 U.S. citizens traveling to and from the United States have had their electronic devices searched at the border.

That particular FOIA request also found that between July 2008 and June 2009, border agents transferred data found on travelers’ electronic devices to other federal agencies over 280 times.

Incompetent and Lazy

Look, I understand we have to protect our borders… but it cannot be at the expense of law-abiding citizens.

To accept such a thing is to accept incompetence and laziness. My friends, those are two qualities that continue to degrade our democracy, not strengthen it.

And the unfortunate truth is that harassment of U.S. citizens crossing the border is nothing new. In fact, just last year two Americans documenting pollution concerns and human rights violations were interrogated by border agents while their photos were destroyed.

One of the men, Ray Askins, was told by more than one agent that they would smash his camera if he didn’t delete the photos; the other, Christian Ramirez, was threatened by one Immigration and Customs Enforcement agent, who told him: “Give me one reason to take you down.”(This was after Ramirez had already crossed the border back into the United States.)

One of the lawyers defending these two U.S. citizens, M. Andrew Woodmansee, released this statement:

Americans have a right to chronicle the activities of law enforcement. The Department of Justice recently stated that the right of a citizen to gather information about government officials — including photographs — serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. While the government has an interest in guaranteeing the security of the United States, it should have no role in stifling speech or violating our right to be secure in our person and our papers.

Protect Your Data!

Although border agents can still unconstitutionally search your electronic devices at the moment, there are some steps you can take to protect your privacy…

After all, as the Electronic Frontier Foundation points out, there are any number of reasons why folks would want to protect their data.

  • Business travelers, lawyers, and doctors may have confidential or privileged information on their laptops they don’t want others to see — or that they are obligated by law or contract to protect.
  • Some people may have sensitive personal information on their devices such as medical records, financial documents, and years of correspondence with family, friends, and business associates.
  • Some travelers may have repeated difficulties crossing the border and wish to take proactive steps to protect their data in light of their past experiences.
  • And some feel out of principle that the government shouldn’t be able to view their private information simply because they choose to travel internationally.

Whatever the reason may be, there are a number of things you can do to protect your privacy at the border.

The good folks over at the Electronic Frontier Foundation have published a free report called, “Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices.” You can access that report here.

Live honorably, live free…

Jeff Siegel Signature

Jeff Siegel for Freedom Watch



Does a Constitution-free zone really exist in America?

YAHOO NEWS – Does a Constitution-free zone really exist in America?

National Constitution Center – Friday, February 15, 2013

Is there really a government law that disallows the Fourth Amendment for 200 million Americans? Some people say it’s true, but the reasoning behind a 100-mile “Constitution-free” zone argument is confusing at best. The ACLU’s Constitution-Free Zone The American Civil Liberties Union has been saying since 2010 that a regulation allowing customs and immigration agents to search electronic devices at America’s borders without cause is wrong. Two years prior to that, the ACLU also warned of a 100-mile-wide U.S. border called the “Constitution-free zone” where such searches could occur. Last Friday, the Department of Homeland Security issued a two-page review of its policy on searching laptops, cell phones, and other devices at border checks, to clarify the policy that the ACLU had questioned in 2010. The DHS said that customs and immigration agents can “exercise long-standing constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.” The story was picked up by Wired magazine and some tech and political blogs as another example of the 100-mile “Constitution-free” zone and a violation of Fourth Amendment rights. The ACLU also asked for the details behind the decision to be released. To be sure, the ACLU has played a valuable role in the debate since 2008 and has obtained many government files about electronic-device searches after filing Freedom of Information Act requests. But the confusion seems to be centered on the idea of a 100-mile extended border for the United States, and how nearly 200 million Americans could have their laptops, cell phones, and iPads searched at any moment. In a lawsuit filed in 2010, the ACLU argued that “we are not saying that the government can never search or seize electronic devices at the border, but only that border agents should have some suspicion that the search will turn up evidence of wrongdoing before looking through all the private information that people have stored in their devices.” The 100-mile-wide border zone is from that earlier missive from the ACLU in 2008, which claimed the electronics-search zone applied to any person who lived within 100 miles of a land or sea border—which happens to be two-thirds of the American population. At the time, the ACLU labeled the area as the “Constitution-free zone.” Since then, bloggers and writers have continued to make the connection between this 100-mile wide border and the lack of constitutional rights for searches of laptops and cell phones. Legally, the 100-mile-wide region is called the “extended border” of the U.S., as defined by Title 8 of the Federal Code of Regulations. There is also something called the “functional equivalent” border, which is the area around international airports in the interior region of the U.S. The DHS ruling from last Friday said its “warrantless searches” applied to the U.S. “border and its functional equivalent,” with no mention of the extended 100-mile border. Two analysis papers from the Congressional Research Service from 2009 offer some legal insight into what tactics agents can follow within the 100-mile-wide extended border, and why the distinction between the extended border and the other two borders is important. Searches within the 100-mile extended border zone, and outside of the immediate border-stop location, must meet three criteria: a person must have recently crossed a border; an agent should know that the object of a search hasn’t changed; and that “reasonable suspicion” of a criminal activity must exist, says the CRS. (The service had done the legal analyses to prepare Congress members for legislation.) “Although a search at the border’s functional equivalent and an extended border search require similar elements, the extended border search entails a potentially greater intrusion on a legitimate expectation of privacy. Thus, an extended border search always requires a showing of ‘reasonable suspicion’ of criminal activity, while a search at the functional equivalent of the border may not require any degree of suspicion whatsoever,” the CRS says. The fact that agents need to show “reasonable suspicion” outside direct border stops and airports puts their actions closer to the scope of the Fourth Amendment, says the CRS. “The Fourth Amendment mandates that a search or seizure conducted by a government agent must be ‘reasonable.’ As a general rule, courts have construed Fourth Amendment reasonableness as requiring probable cause and a judicially granted warrant. Nonetheless, the Supreme Court has recognized several exceptions to these requirements, one of which is the border search exception.” The argument about a Constitution-free zone may better apply to direct border stops and airports, where agents don’t need to explain why they are searching a computer or cell phone. So, there could still be a “Constitution-free zone,” based on the outcome of legal appeals. It would just be much smaller than that 100-mile band around the U.S.. The CRS says the Supreme Court has yet to consider a case involving the degree of suspicion needed to search laptops at the border without a warrant or reasonable suspicion. And in an evolving world where people keep much of their private lives stored on computers and cell phones, the issue should only grow in importance in coming years.

When you give up freedom

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