Searching laptops with or without reasonable cause is constitutional

[reggie]

Re: Searching laptops with or without reasonable cause is constitutional

For your homework tonight please show how this 1789 law requiring no restrictions whatsoever on search in border situations and passed the same year as the Bill of Rights can reasonably be ignored.

The Bill of "Rights" is such an misnomer. It's actually a Bill of enumerated powers that the people accede to government in order to protect the people's liberties as articulated in the Declaration of Independence.

Question: I have not looked up this law that you refer, but did these border searches apply to natural born citizens of the US (or those naturalized under the Declaration of Independence), or just immigrants (non natural born citizens)?

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

I have not looked up this law that you refer, but did these border searches apply to natural born citizens of the US (or those naturalized under the Declaration of Independence), or just immigrants (non natural born citizens)?

By "natural born citizens", do you mean that it only applied to Native Americans and the second and later generation Americans, or was there some other definition that included any significant number of people in 1789 and did not exclude many revolutionary soldiers? I did not research the law in detail because it would lead to a long detailed study in the hazards of ignorance for one not schooled in the law, but I trust the numerous wise people in the centuries since it passed. I believe, based on the modern interpretation which I can see every day applies to citizens and non-citizens alike, and on the fact that the Congressmen back then were not stupid and would not have excepted citizens who would then have been empowered to become professional smugglers if provided an exception, that the law applied to all who presented themselves at the border. Simple. IANAL but I do have considerable respect for those folks back in 1789. They were not stupid. Bottom line is it is not a new law!!!!!!!!!!!!!!! Should not be a surprise!!!!!!!!!!!!!!

[reggie]

Re: Searching laptops with or without reasonable cause is constitutional

By "natural born citizens", do you mean that it only applied to Native Americans and the second and later generation Americans, or was there some other definition that included any significant number of people in 1789 and did not exclude many revolutionary soldiers? I did not research the law in detail because it would lead to a long detailed study in the hazards of ignorance for one not schooled in the law, but I trust the numerous wise people in the centuries since it passed. I believe, based on the modern interpretation which I can see every day applies to citizens and non-citizens alike, and on the fact that the Congressmen back then were not stupid and would not have excepted citizens who would then have been empowered to become professional smugglers if provided an exception, that the law applied to all who presented themselves at the border. Simple. IANAL but I do have considerable respect for those folks back in 1789. They were not stupid. Bottom line is it is not a new law!!!!!!!!!!!!!!! Should not be a surprise!!!!!!!!!!!!!!

This discussion is pointless until we can establish Jurisdiction of referenced law.

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

This discussion is pointless until we can establish Jurisdiction of referenced law.

IMHO this discussion is unnecessary after reading the quote from Findlaw which is about as clear and unambiguous as anyone could state it. For those who didn't notice it the first time, here it is. Maybe just read it again...

Border Searches .--''That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.'' 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.

Readers wanting further information can follow up the references cited in the footnotes of this cited article. For me, I trust their interpretation of the 221 year old law. For others, your mileage may vary.

[Rajiv]

Re: Searching laptops with or without reasonable cause is constitutional

The wiki article on the Border Search Exception that you referred to is very clear on this matter

The United States Customs and Border Protection (CBP), a division of the United States Department of Homeland Security, is permitted to search travelers and their belongings at the American border without probable cause or a warrant. These searches are therefore exempted from the Fourth Amendment warrant requirement. Pursuant to this authority, CBP may generally stop and search the property of any traveler entering or exiting the United States at random, or even based largely on ethnic profiles.[1] However, CBP may only conduct searches of the traveler's body — including strip, body cavity, involuntary x-ray, and in some jurisdictions, pat-down searches — if the Customs officer has reasonable suspicion to believe the traveler is concealing contraband.[2]

Although border-searches are exempted from the Fourth Amendment warrant requirement, they are still subject to the amendment's reasonableness requirement.[3] Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search.[4] In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches.[5] CBP may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion".[6] Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine."[7]

Currently, the main area of contention concerning the border search exception is its application to the search of the electronic files and information contained in travelers' laptops and other electronic storage devices. Two notable decisions have been rendered with the respective intermediate appellate courts backing the United States Government's position that the search of electronic devices falls under the category of property searches and that the devices are functionally and qualitatively equivalent to other closed containers.[10] According to this position, the Government asserts that it may open, login, and search through all the electronic information stored on traveler's electronic devices. The only federal appeals court to address this issue directly, the Ninth Circuit Court of Appeals, agreed with the government's position and held that "reasonable suspicion is not needed for customs officials to search a laptop or other electronic device at the international border."[11]

Some have challenged the government's constitutional authority to search the contents of their laptops on two bases: (1) first, they claim that searches of the contents of their laptops violate their First Amendment freedom of expression;[12] and (2) second, they claim that searches of the files on their electronic devices are unreasonable under the Fourth Amendment because they are a substantial intrusion into travelers' privacy and dignity interests.[13]

The Fourth Circuit Court of Appeals, addressing a challenge to Customs' authority to search electronic files in United States v. Ickes, held that there is no First Amendment exception to the border search doctrine for expressive materials

[c1ue]

Re: Searching laptops with or without reasonable cause is constitutional

For your homework tonight please show how this 1789 law requiring no restrictions whatsoever on search in border situations and passed the same year as the Bill of Rights can reasonably be ignored.

Once again, you confuse existing practice with constitutionality.

For example, I can easily argue that the terms of search as defined in the 1789 law were with respect to excise taxation - at the time the major source of income for the United States.

This is no longer true - excise taxation, especially in an individual sense, is practically irrelevant.

Secondly the 1789 statute has NOTHING to do with criminal law.

It would not be the first time that either societal circumstance or intent (i.e. slaves/slavery, women, alcohol off/on, and indians) changed from 1789 until today.

As for:

''That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.''

So what exactly is being protected when a hard drive is being searched? Is it the duty of customs officials to be stopping pornography? Dissenting opinions concerning the party in power? Pirated software?

And when the persons being searched are US Citizens, who exactly is the sovereign protecting against?

The trouble with your arguments is that customs officials have lots of duties with respect to customs laws, but pornography for private use isn't one of them.

Similarly DHS officials have lots of duties with respect to protecting homeland security...but what do pictures of naked people have to do with them?

Saying that the law allows searches because a sentence says so is exactly what is wrong with American law: When only the letter of the law shall govern, lawyers proliferate and justice dies.

[Rajiv]

Re: Searching laptops with or without reasonable cause is constitutional

Well, the courts appear to have judged it to be constitutional, as per the many court judgements on this issue.

And since, according to the constitution, the courts, and in particular the Court of Appeals, and the Supreme Court are the adjudicators on interpreting the constitution, there appears so far little to argue against its constitutionality.

The way the Constitution is understood is influenced by court decisions, especially those of the Supreme Court. These decisions are referred to as precedents. In the 1803 case Marbury v. Madison, the Supreme Court established the doctrine of judicial review. Judicial review is the power of the Court to examine federal legislation, executive agency rules and state laws, to decide their constitutionality, and to strike them down if found unconstitutional. Judicial review includes the power of the Court to explain the meaning of the Constitution as it applies to particular cases.

If you don't like the way the courts have adjudicated on this topic, get the constitution amended, or as is more likely, change the judges!

[Yaowarat]

Re: Searching laptops with or without reasonable cause is constitutional

4th Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

So, we know the gov't apparatchiks no longer even mask their contempt for due process, habeus corpus...

[Shakespear]

Re: Searching laptops with or without reasonable cause is constitutional

Yaowarat, thanks for the reminder.

unreasonable searches and seizures,

However reading that (I am not a lawyer) those words just jump out and say to me "This can mean anything the judge allows it to mean."

There's the slippery slope

[c1ue]

Re: Searching laptops with or without reasonable cause is constitutional

Well, the courts appear to have judged it to be constitutional, as per the many court judgements on this issue.

And since, according to the constitution, the courts, and in particular the Court of Appeals, and the Supreme Court are the adjudicators on interpreting the constitution, there appears so far little to argue against its constitutionality.

The courts also have been documented to have changed back and forth.

"Separate but equal" is but one example; the 'strict constructionist' vs. 'loose constructionist' eras are another.

Certainly we are in an era of ebb of personal liberties.

But it doesn't mean this should be accepted.

[Rajiv]

Re: Searching laptops with or without reasonable cause is constitutional

But it doesn't mean this should be accepted.

We are in agreement on that.

However it appears that the political will is not there in either the politicians, nor in the electorate to do anything about the sorry state of affairs -- and believe me when I say that "It is a very sorry state of affairs."

[*T*]

Re: Searching laptops with or without reasonable cause is constitutional

Of course, we all know you have been naughty and up to no good. We just need to look hard enough. It doesn't matter if it is laptops, internet usage, phone conversations, or even credit card transactions. It's all fair game in the new police state we call America. Privacy and the Constitution are so yesterday. Yawn! Hey, I think American Idol is on...:eek:

Which is why I'm beginning to dislike travel to the states.

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

Which is why I'm beginning to dislike travel to the states.

I could be wrong but isn't London the city where you cannot find a spot not on a camera? Where people actually monitor the cameras for all manner of infractions? Where presumably microphones also record anything you might choose to say? Where your public display of affiliation by meeting a friend on a corner is recorded just in case something interesting develops. Where totally innocent acts can be recorded, saved, and later used as evidence against you? Where you do not know what was recorded in any case? Granted, one does not have complete privacy in public spaces anyway, but to be under nanny's watchful eye seems uncomfortable in the extreme to this American. It would make me think twice about living in such a society. It seems, though, that a lot of people are willing to give up their privacy quite lightly.

Those all pervasive cameras seem to me to be much less benign than the centuries-old border search that has always been empowered to look for things like kiddie porn, shoes bearing foot and mouth disease from infected farms, drugs, anthrax, radioactive isotopes suitable for dirty bombs, cash in excess of legal limits, huge treasury notes in denominations they were never issued in, and lots of stuff nobody has thought of yet? Not to mention that you know it is coming and the surveillance is over when you walk out of the checkpoint.

Now, as for GW Bush's 25 mile border exception, that feels a lot like London, to me and I do not like that idea one bit.

Originally Posted by bcassill
Of course, we all know you have been naughty and up to no good. We just need to look hard enough. It doesn't matter if it is laptops, internet usage, phone conversations, or even credit card transactions. It's all fair game in the new police state we call America. Privacy and the Constitution are so yesterday. Yawn! Hey, I think American Idol is on...

Why are people so ready to confuse traditional customs activity with the GW Bush intrusions listed above? You know, we do have the right to lobby Congress to rescind the Patriot Act and all the crap that it entails. We only have to tell our legislators what to do. Did anybody stand up against it the last time it came up? We voted for GW Bush and then we have let it persist for almost a decade.

Don't confuse the laws ... the border checkpoint was done by our founding fathers with at least some degree of wisdom. The other was done by GW Bush in a fit of fear laden frenzy that continued for the remainder of eight years. We should remember that little fact come next election and hold our elected representatives to restoring our freedoms and privacy.

[c1ue]

Re: Searching laptops with or without reasonable cause is constitutional

The U.S. Customs service mission statement:

http://govinfo.library.unt.edu/npr/l...ssion/mcus.htm

United States Customs Service

---

Mission Statement



Customs is one of those agencies with a more expansive mission and the agency has experienced both the advantages and disadvantages that accompany the broader scope. Customs current five year plan reemphasizes our mission:

As the Nations' principal border agency, the mission of the United States Customs Service is to ensure that all goods entering and exiting the United States do so in accordance with all United States laws and regulations. This mission includes:

-- Enforcing U.S. laws intended to prevent illegal trade practices;

-- Protecting the American public and environment from the introduction of prohibited hazardous and noxious products;

-- Assessing and collecting revenues in the form of duties, taxes and fees on imported merchandise;

-- Regulating the movement of persons, carriers, merchandise and commodities between the United States and other nations while facilitating the movement of all legitimate cargo, carriers, travelers, and mail;

-- Interdicting narcotics and other contraband; and,

-- Enforcing certain provisions of the export control laws of the United States.

For 200 years, Customs officers have used a similar statement of mission in protecting our borders. The challenge today is to derive from the broad charter a vision to guide and inspire our employees. This is neither an easy nor a one-time task.

Deriving the Vision



Customs derives its vision from the law, the mission, the priorities of the Administration and the Congress, and the needs of our customers. We use a variety of techniques and sources, e.g., interviews with customers and stakeholders, the media, our strategic planning process, and review of Congressional and Executive Branch proceedings. Developing the vision depends on the dynamic, ongoing, and sometimes messy process wherein Customs matches its mission and capabilities against the needs of the nation and our customers. As a result of this process, the following vision has been proposed for the Customs Service.

-- To achieve compliance with Customs and other agency laws at the border at a rate approaching 100% by the end of the century.

Achieving this goal will protect industries from predatory trade practices, ensure the health, safety, and security of our citizens, protect the environment, and provide accurate and timely statistics on international trade. Our predominant method of operation will be to work effectively with the business community and other federal agencies to enable people and commerce to voluntarily comply with requirements for legal entry into the United States. However, at the same time, we will direct special investigative efforts toward thwarting attempts to smuggle substances into the country that threaten public health and safety. Process management , partnerships with our customers, informed compliance, investigations and intelligence, automation, and compliance measurement will be the tools used to achieve this goals.

-- To become the most facultative Customers Service in the world.

The U.S. is the world's largest trader and a world-wide champion of free trade. U.S. Customs should serve as a role model for border agencies throughout the world by maintaining the highest compliance and enforcement rates, while using the latest electronic technology to clear passengers and cargo more expeditiously than any other customs service in the world. In most cases, this will mean clearance before arrival in the U.S. As other more restrictive and deliberately protectionist Customs administrations such as China and Japan follow our lead, U.S. exports will receive fairer treatment. Partnerships with our customers, advanced information, automation, and compliance measurement will be the tools used to achieve this goal.

-- To form partnerships with our customers in industry and government to meet our compliance, enforcement, and facilitation goals.

Establishing partnerships means recognizing all of our customers, accepting them as extensions of our agency, determining and understanding their needs, devising strategies responsive to their needs, and measuring our performance in addressing their needs. We commit to improving our nation's effectiveness in combating international drug trafficking and money laundering by pledging to cooperate with any organization public or private, international or domestic, that is committed to the fight. Process management, on-going customer feedback mechanisms, shared data systems, data exchanges, and task force arrangements will be the tools and techniques we will use to determine customer needs, meet customer requirements, and serve as the basis for partnership.

-- To become the nation's supplier of international trade information.

Success in business and government is achieved by those with access to the most accurate and timely information. The Customs Service has a powerful base of technological achievement which we can build upon to provide this edge for the business and governmental interests of the United States that intersect at our borders. our goal will be the creation of ITIS which will make the Customs Service the nation's provider of reliable, timely and comprehensive import/export statistics, and other information related to trade and travel.
The vision proposed in this report forms the basis for the development of strategies, goals and objectives that will effectively serve the Customs Service through the end of this century and beyond. In order to move toward this vision, Customs will attempt to create the best working environment in government, one which will allow our employees to make their maximum contribution to the goals of our agency and the government. We value our people and the diversity they bring. We are committed to identifying their concerns and implementing strategies to address their needs. We have established a partnership with NTEU. We will clarify the roles of all employees and organizational units, and emphasize cross-functional teams as tools and techniques to achieve our vision.

I fail to see how pics on a computer qualify as 'narcotics or other contraband', nor how said pics constitute 'hazardous ... products' though certainly noxious in a moral sense.

You can certainly argue that said activity in question is to 'ensure the health, safety, and security of our citizens', but then again there are legion of other activities not specifically ensured against: SPAM mailing, counterfeit software/DVDs, software industrial espionage, copyright infringement, etc etc.

Barring the guardhouse lawyer aspect, what has been done here is clearly a perversion of charter in order to obtain an end.

[bobola]

Re: Searching laptops with or without reasonable cause is constitutional

You land lubbers might find this interesting;

"The Coast Guard has law enforcement powers within U.S. waters, which extend 200 miles from shores, and on international waters. Coast Guard authority supersedes that of the U.S. Navy in terms of law enforcement -- a Coast guard captain can halt, board and even seize any vessel without a warrant, court order or direct orders from a superior, including U.S. Navy vessels."

When the Coasties come knocking, you have no choice but to let them board, without a warrant of course, and they have free reign to search the whole boat, while the crew sits in the cockpit and waits. I have been through the CG boarding process several times. If nothing else, it makes you an honest boater....you really have no other choice or you risk losing the boat.

http://science.howstuffworks.com/coast-guard.htm