Can we finally just say it? The Fourth Amendment is on life support.
It is 2013 and two out of three Americans live an in area that the American Civil Liberties Union have labeled the "Constitution free" zone. This zone is 100 miles from the edge of our nation's borders and is the area that the Department of Homeland Security considers a "reasonable distance" from the border.
It is also the area in which the DHS apparently has the right to perform a search without warrants, without probable cause, without reasonable suspicion, and without any stated justification whatsoever, under the border search exception. Forget about the Patriot Act mining through millions of peoples' data. That's a needle in a haystack. They'll just seize your smartphone and laptop at the border.
Remember that Fourth Amendment thingie? It had a major coronary a few years ago when the Ninth Circuit ruled that suspicionless searches of international travelers were okie-dokie at the border. The child porn-possessing defendant in that case, Michael Arnold, committed suicide after the Supreme Court denied a writ of certiorari.
While every right in America has its limits, is there any right as trampled as those guaranteed under the Fourth Amendment? Sure, you can’t yell “Fire” in a crowded theatre or incite a riot, but that is a minimal restriction for a compelling reason. We give up privacy and submit to pat-downs or naked scanners go through airports. One might argue that seizing and searching through personal electronics is even more invasive, as that phone now operates as a diary, a photo album, a word processor, and more.
The ACLU would like a reasonable suspicion standard to apply to border searches. This compromise still allows agents with articulable suspicion of terrorism or other illegal activities to investigate as needed while protecting, to a limited extent, the dignity and rights of citizens.
The DHS’ Office of Civil Rights and Civil Liberties, which is supposed to act as a watchdog for the agency, last week approved the suspicionless searches, stating 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,” reports Wired.
What can be done to reverse the trend? One idea might be to reintroduce the failed Travelers’ Privacy Protection Act of 2008, which would have required reasonable suspicion to seize and search travelers’ electronic devices. The proposed bill died at the expiration of the 110th Congress.
- The Drones Are Coming! But Not to Charlottesville? (FindLaw’s Technologist Blog)
- Border Searches of Electronic Devices (DHS Office of Civil Rights and Civil Liberties)
- Government Data About Searches of International Travelers’ Laptops and Personal Electronic Devices (ACLU)