Unreasonable Search and Seizure on the Borders

By Brandon Lovested | in Privacy/security, Public policy | 17 Feb 2008 | No Comments

Picture this: You’re traveling from London to Boston. You go through the normal customs check at Logan, but then you’re asked to surrender your laptop, your Treo and your iPod. You ask, “For what reason? I’ve broken no laws. This is unconstitutional, You can’t just confiscate legal possessions.” The reply: “Yes, we can.”

Can customs officials confiscate personal property? Yes they can. Is it unconstitutional? Probably. The conflict arises when there is no reasonable suspicion that triggers a search or confiscation, but rather a presumption of guilt and lack of due process. Welcome to the New American Order.

In a recent press release by the Electronic Freedom Foundation:

Information Sought in Response to Growing Complaints of Harassment at U.S. Borders

San Francisco – The Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF) filed suit today against the U.S. Department of Homeland Security (DHS) for denying access to public records on the questioning and searches of travelers at U.S. borders. Filed under the Freedom of Information Act, the suit responds to growing complaints by U.S. citizens and immigrants of excessive or repeated screenings by U.S. Customs and Border Protection agents.

ALC, a San Francisco-based civil rights organization, received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers’ books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, “This is the border, and you have no rights.”

“When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation’s doorstep,” said Shirin Sinnar, staff attorney at ALC. “The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process.”

The EFF and ALC plan to file suit to force the government to reveal what their search policies are, which so far remain an official mystery. The abovementioned complaints include searches of cellphones, MP3 players and laptops. So far, the federal government refuses to explain to the American people what it is looking for and why, further eroding the notion that it is accountable to those same people.

Supposedly, customs agents are looking for evidence of terrorism and contraband. Given the federal government’s love affair with intellectual property hacks like the RIAA and MPAA, as well as the PRO-IP Act, this list of contraband could grow to include illegal movies and music (though how they will ascertain legal status is unclear).

According to an excellent article in The Washington Post, the implications are far-ranging:

“It’s one thing to say it’s reasonable for government agents to open your luggage,” said David D. Cole, a law professor at Georgetown University. “It’s another thing to say it’s reasonable for them to read your mind and everything you have thought over the last year. What a laptop records is as personal as a diary but much more extensive. It records every Web site you have searched. Every e-mail you have sent. It’s as if you’re crossing the border with your home in your suitcase.”

If the government’s position on searches of electronic files is upheld, new risks will confront anyone who crosses the border with a laptop or other device, said Mark Rasch, a technology security expert with FTI Consulting and a former federal prosecutor. “Your kid can be arrested because they can’t prove the songs they downloaded to their iPod were legally downloaded,” he said. “Lawyers run the risk of exposing sensitive information about their client. Trade secrets can be exposed to customs agents with no limit on what they can do with it. Journalists can expose sources, all because they have the audacity to cross an invisible line.”

Shirin Sinnar, a staff attorney with the Asian Law Caucus, said that by scrutinizing the Web sites people search and the phone numbers they’ve stored on their cellphones, “the government is going well beyond its traditional role of looking for contraband and really is looking into the content of people’s thoughts and ideas and their lawful political activities.”

If conducted inside the country, such searches would require a warrant and probable cause, legal experts said.

And that sounds oddly familiar. If our government can’t (or doesn’t want to) try someone in the U.S. court system, it takes action outside the country, where it can make up a set of arbitrary self-serving rules.

As summarized on Robert X. Cringley’s post on InfoWorld:

To me, it all boils down to this: what do you trust more, the U.S. Constitution or the U.S. government? When in doubt, I tend to side with the founding fathers. At a time when “national security” was far more tenuous than it is today, they enacted far-reaching laws that put the rights of individuals on at least a par with the rights of the state.

Indeed, the Constitution was designed to construct the limits of governmental powers. Personally, I jump to Ben Franklin’s famous quote:

“Anyone who trades liberty for security deserves neither liberty nor security.”