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“If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”     George Orwell

February 11, 2008

Department Of Homeland Security Claims American Public No Longer Expects Privacy

by UCrawford

Apparently, the right to privacy no longer exist for anyone crossing the border as the Department of Homeland Security (DHS) has claimed that they have a right to search, without warrant or probable cause, anyone who comes into this country, including citizens

Amir Khan says he becomes frustrated and humiliated every time he enters the United States and federal agents search his computers. Khan, a Pakistani-born U.S. citizen, says it has happened five times since 2003.  He says agents with U.S. Customs and Border Protection have even forced him to give them access to password-protected, confidential information from his company and his banking records.

And the scope of what Customs may search for is apparently both unlimited and arbitrary:

The Customs and Border Protection defends the searches, saying the agency does not need to show probable cause to look inside suitcases or laptops.

“We have broad search authority at the borders to determine admissibility and look for anything that may be in violation of criminal law,” says agency spokeswoman Lynn Hollinger.

A DHS spokesman dismissed the complaints of travelers like Mr. Khan with the following statement:

“You forgo your right to privacy when you are seeking admission into the country…This is the kind of scrutiny the American public expects.”  

Keep in mind that Mr. Khan is not just a foreign visitor but an American citizen.  The government’s reply here is apparently not just restricted to foreign travelers with criminal records or those fitting a terrorist’s profile who come here, the government has openly said that United States citizens traveling abroad have no expectation of privacy if they’re coming back into their own country and anything you’ve got with you is fair game.  Got a risque picture from your wife that she sent you while you were on a month-long business trip?  Now you get to share it with the guard at Customs if they demand access to your cellphone or computer.  Got confidential information for a future business deal?  Now the government gets to see it too.  Got your bank account or credit card information saved and encrypted on your laptop so you can conduct transactions while traveling?  Now that information may get tossed into a government database where it’s vulnerable to identity theft.  Assuming, course, that they don’t choose to seize the offending electronic device as well:

Situations for travelers such as Khan are at issue in a lawsuit filed last week by the Electronic Frontier Foundation and Asian Law Caucus in U.S. District Court for the Northern District of California.  The suit accuses customs agents of “lengthy questioning and intrusive searches” and seeks clarification on the law that allows such searches.  The San Francisco, California-based foundation, which works to defend people’s rights in the digital world, says it knows of more than a dozen cases in which electronic devices such as cell phones, BlackBerries, MP3 players and laptops have been searched by customs agents. In some cases, they have been confiscated and never returned. 

There are those who would probably feel that such searches are justified.  After all, terrorists can hardly be expected to walk up to the Customs officials to announce their presence.  The problem with this line of reasoning, however, is that the overwhelming majority of people who come to this country are not terrorists, most are law-abiding people who come here for the same reasons any of us might go to their countries.  Some are travelers who wish to come and see the United States and spend their money (which they’ll be more than happy to spend elsewhere if it becomes too inconvenient), some are people who come to the United States to conduct business that contributes to economic growth (which they’ll be more than happy to conduct elsewhere if the government gets too intrusive), and some are people who come here because they wish to see what a free society is supposed to look like.  Apparently, their first impression of our free society will not include an expectation to privacy.

Update:  Commenter KipEsquire has pointed out that DHS’ approach is in line with the Supreme Court’s decision in U.S. v. Ramsey (1977), which apparently makes the actions of Customs legal, if not necessarily just or wise.

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15 Comments

  1. “the right to privacy no longer exist[s] for anyone crossing the border”

    As a matter of constitutional law and history, it never ever existed. See U.S. v Ramsey, 431 U.S. 606 (1977), detailing the history of border searches before, during and after the ratification debates for the Bill of Rights.

    It may be time to change our thinking about the Fourth Amendment border searches, but it is utterly incorrect to suggest that DHS is somehow rewriting search-and-seizure law. It just isn’t.

    Comment by KipEsquire — February 11, 2008 @ 10:44 am
  2. KipEsquire,

    I looked up the case you referenced, and from a legal standpoint you’re right…the Supreme Court essentially ruled that the right to privacy doesn’t exist at our checkpoints. My counter-argument to that would be, however, that the Supreme Court was wrong and I’d agree with Brennan and Marshall’s dissent on the matter. But I think a valid point was still raised about what constitutes a legal seizure and what doesn’t. Shouldn’t the procedures of what the government can and can’t have access to be spelled out and not entirely at the discretion of the Customs officials at each checkpoint, at least for U.S. citizens crossing the border if not everyone?

    Comment by UCrawford — February 11, 2008 @ 11:12 am
  3. Shouldn’t the procedures of what the government can and can’t have access to be spelled out and not entirely at the discretion of the Customs officials at each checkpoint, at least for U.S. citizens crossing the border if not everyone?

    Indeed. There are few things worse than unchecked discretion.

    Comment by Jeff Molby — February 11, 2008 @ 11:41 am
  4. As a Customs and Border Protection Officer, I do not see the current laws being the issue. I believe it is policy that should be in question. Proper training, experience and rational thinking should be the focus in applying such a powerful search authority. An authority which I firmly believe is necessary to maintain security and safety from dangers carried in from abroad.

    I completely agree that most international travelers- 99.9% are law abiding and are an important economic resource for our country. But I also believe that the common US citizen is naive to the dangers that such an open society invites. Narcotics, illegal substances, child pornography, counterfeit goods and currency, stolen art, dangerous pests, weapons, child/person smuggling as well as terrorist interdiction just to name a few. It is a delicate balance to say the least.

    In personally applying the border search authority in many instances, I believe applying the proper discretion and professionalism to be the key factor in each and every case.

    What I would like to point out to those following this story is not to judge the border authority provision on several bad incidents. Rather, see all the positive contributions made by intercepting unwanted dangers at our borders, which by far outnumber the bad incidents in regards to privacy issues with law abiding individuals.

    Comment by brdrknight — February 11, 2008 @ 1:16 pm
  5. brdrknight,

    I can certainly agree that a lot of what you’ve named are important things to watch for (we’ll agree to disagree about drugs, but that’s a different topic of discussion). The problem I have is that currently the policy appears to be enforced so strictly that it treats too many of the 99.9% as if they were the .1%, that our obsession with security is becoming an unproductive burden upon our legitimate activities, and that current policy becomes a means for government to intrude and interfere with areas of interaction that it should best stay out of. I suspect much of this is that there appear to be few official guidelines set down as to what the limits of Customs authorities can do, search or seize and I think that encourages abuses of authority that override the security benefits.

    I would be curious to hear you expand a bit on what specifics, if any, you think should be done to reform policy if you have any thoughts on it and you’re willing to share that. As you’re in Customs you’re probably a lot more acquainted with the practical realities of Customs policy than most of us and I think it would be helpful if we could hear a perspective on the other side of the issue.

    Comment by UCrawford — February 11, 2008 @ 1:41 pm
  6. Don’t fall into the trap of believing a substantial amount of the 99.9 percent have privacy rights issues as described in the story body. That’s the media talking, not actual numbers- which I wish the media would post if they could btw.

    At my port we conduct dozens of searches daily without incident. There are many factors that may launch a search. Factors I can’t describe here for obvious reasons. But I would like to point out that a search does not need to equate a physical probe of your articles. It can be as casual as basic questioning to determine the necessity of a further search.

    If handled properly, search incidents could be averted or minimized. When I involve the traveler in describing the steps of the search as it occurs, most feel less violated simply due to the fact that they could follow along and are more informed.

    Other law enforcement entities carry lots of authority as well (IRS, FBI, State Dept, County Sherifs, etc.), yet policy describes the guidelines they must follow. It is no different with Customs. Our authority runs deep but our policy only allow us to use that authority under certain applications.

    To expand on my first point- just as our streets need seasoned, experienced officers so do our ports of entry. One direct change I would place is to not allow intrusive searches be perfomed by officers lacking tenure or rank. This would eliminate lack of judgement concerns by less experienced officers.

    The border search authority is a valuable tool that should not be restricted or limited due to media attention of privacy issues.

    Comment by brdrknight — February 11, 2008 @ 2:34 pm
  7. I don’t care what that law says – first, it was written before laptops and may need to be reexamined in that context. Second, regardless of what the law permits, DHS policy should be consistent and at least reasonably sane. As we’ve seen recently, TSA and Customs policies are frequently neither, which is a policy failure from the top all the way down.

    There is no way some random customs monkey – and no personal offense to the reasonable-sounding brdrknight, it’s just that I’ve met a lot more twats than cool people at TSA and Customs over the years – there’s no way some random monkey is going to get his greasy mitts all over my laptop just because he’s in a pissy mood. No way, impossible. They can arrest me, turn me back at the border, I don’t care – on principle, they do not get my laptop without some justification. It’s still technically America, and even though we’ve strayed a long-ass ways in the past six years, there’s got to be a limit, and someone’s got to say “enough’s enough.” I put up with enough idiotic crap at American airports, and I draw the line at my laptop.

    Out of the list of dangers Brdrknight presents – “Narcotics, illegal substances, child pornography, counterfeit goods and currency, stolen art, dangerous pests, weapons, child/person smuggling as well as terrorist interdiction” – I’m glad you guys are watching out for this stuff, it’s obviously necessary, but despite the scare tactics, guess what, NONE OF THOSE ARE ON MY LAPTOP. This list is exactly the sort of cheap and nonsensical justification I’ve heard from TSA over and over again. What, so I might be smuggling white slaves inside my laptop? What are you talking about? It seems to me what you’re really trying to say is that we should OVERLOOK any bad behavior at the border because customs agents do such important work. I disagree. We’re talking about unreasonable searches of laptops here.

    The only thing that could even possibly exist on my laptop is child pornography, and if somebody at Customs really believes they can keep child porn out of the US by searching laptops, then they are delusional and a danger to us all and need to be getting fired, pronto.

    And it should be obvious that if Customs is randomly digging through laptops for child porn, then there isn’t enough “Narcotics, illegal substances, counterfeit goods and currency, stolen art, dangerous pests, weapons, child/person smuggling as well as terrorist interdiction” for Customs to keep busy with, and some people need to get fired not just for being abusive, but for being extraneous.

    There is not even a SANE reason for anyone at Customs or TSA to be messing up or stealing my laptop. It’s crazy, it’s police-state, it’s an abuse of power against the people, and it’s got to stop, plain and simple.

    Maybe brdrknight can enlighten us – what happens to someone who refuses a laptop search? As a native-born American citizen, what are they going to do, refuse me entry into my own country? And if I can’t enter the US, I guess that would exempt me from taxes, eh?

    Comment by Goose — February 11, 2008 @ 2:52 pm
  8. Brdrknight – “One direct change I would place is to not allow intrusive searches be perfomed by officers lacking tenure or rank. This would eliminate lack of judgement concerns by less experienced officers.”

    - Couldn’t agree more. If a Customs agent wanted to search my laptop, and was decent about it and clearly had the judgment and IT experience to do it properly, I might very well feel differently. But I don’t believe for a second that Customs agents are generally properly trained for this.

    Comment by Goose — February 11, 2008 @ 3:08 pm
  9. I am fully aware of your position and I’m not offended in the least. I’m an international traveler too and subject to the same rules TSA and Customs enforce as you are.

    To answer some of your questions- no, a US citizen may never be denied entry regardless of circumstances. Your cooperation question is the same as if it happened on a highway or public area- what if I decided to not cooperate with an officer asking for my license or answer basic questioning? With reasonable suspicion, I can detain you and obviously escalate the situation. My first instinct would be to inform you that this is not a pissing match. I’m not there to impress my manhood or badge upon you.

    As for the ‘greasy hand’ point, your right. I wouldn’t want someone going through something as delicate as a laptop just to show me they could. There should be that articulable reason- one that could stand up in court- as to why I needed to search any of your electronic devices. So long as I have that, it can be made to be justified. And I don’t mean “he looked funny,” I mean a solid pointer that made that device interesting to me in a criminal sense.

    To quote- “Out of the list of dangers Brdrknight presents – “Narcotics, illegal substances, child pornography, counterfeit goods and currency, stolen art, dangerous pests, weapons, child/person smuggling as well as terrorist interdiction” – I’m glad you guys are watching out for this stuff, it’s obviously necessary, but despite the scare tactics, guess what, NONE OF THOSE ARE ON MY LAPTOP.” Understand that crimes are rarely as neat as finding the knife the butler used and case closed. Many of the crimes that are solved are found through intelligence. The very intelligence that may obtained through electronic devices- documents, videos, photos, calendars, notes, etc. can be the proverbial knife.

    It seems that most posters here are upset at the lack of discretion used by officers when conducting border searches. Especially with regards to electronic devices. Understand that is a vastly different topic to debating the law that allows border officers to conduct such searches. That of course plays into the point I made with my first post- lack of training, experience and proper policy is the real issue, not the laws that allow border searches.

    Comment by brdrknight — February 11, 2008 @ 3:27 pm
  10. one of the instruments for changing “attitudinal” law is simply declaring that times have changed. in this case, the “times have changed to where Americans no longer want or need the sense of individual privacy that was deemed important long ago.” that is basically what talking heads at this dept are saying now.

    it’s part of incrementalism. the drawback is that pesky laws take years to sidestep, but the advantage is that it is done with usually no opposition from the public who is not aware or capable to deal with incrementalism.

    Comment by oilnwater — February 11, 2008 @ 3:46 pm
  11. Brdrknight, I agree with everything you wrote. I just hope I get Customs agents as reasonable as you every time I go back to the US.

    Although what I’d really like is some assurance that you’re not a lone voice of sanity. I wish the official policy on this topic was made explicitly clear. I don’t even know if Customs are generally held to the “hold-up-in-court” standard or if they’re free to do whatever they want without effective oversight. And knowing what I know about law enforcement, “effective oversight” is some tricky business itself. I’d feel a lot better if I knew Customs agents generally operated by the “hold-up-in-court” standard.

    It seems like TSA gets away with quite a bit – I mean, some airports were requiring all passengers to remove all electronics from their bags, and the TSA didn’t even know about it until bloggers complained?!? And don’t even get me started on their “orange list.” Seems like TSA is out of all control – I wouldn’t trust them with my pocket calculator, let alone my laptop. I hope Customs is working at a higher level…

    Comment by Goose — February 11, 2008 @ 4:40 pm
  12. brdrknight,

    It seems that most posters here are upset at the lack of discretion used by officers when conducting border searches.

    I think that a lot of people are upset at the lack of consistency in how the laws are applied. The EFF referenced in the link appeared to be more interested in getting a clarification of the limits of Customs’ authority rather than restricting officers’ overall ability to do their job. Most people in life I’ve found (myself include), are okay with rules so long as they know what those rules are and, as you say, so long as the enforcement officer involved displays appropriate discretion. The problem is that when you leave rules too open to interpretation, it leaves far too much room for abuse, even for the best-trained and best-intentioned officers. No system’s ever going to be perfect, and I recognize the importance of Customs as a safeguard (my uncle used to work for the Dept of Agriculture exterminating invasive plants), but I think there’s often too much gray area in where our rights stop and the government’s authority begins in this area. That’s not a knock against the individual officers (who are just trying to do their job) but a problem with how the system itself is constructed.

    It seems that most posters here are upset at the lack of discretion used by officers when conducting border searches. Especially with regards to electronic devices. Understand that is a vastly different topic to debating the law that allows border officers to conduct such searches. That of course plays into the point I made with my first post- lack of training, experience and proper policy is the real issue, not the laws that allow border searches.

    I can respect what you’re saying about the importance of having wider search powers for Customs in place and I’d agree that those powers should probably be more wide-reaching than those given to domestic police forces, but your argument is also premised on the idea that we need to have the “right” people carrying out the job to avoid problems and that’s something that’s just not government’s strong suit. Government agencies are prone to hiring freezes and funding cuts and inflexible management and flawed personnel systems, which can undermine worker quality, not because the people running them are bad or incompetent, but often because that’s just the nature of government. It’s not a responsive system that can adapt well to individual situations and usually when you leave government too much authority it’s only a matter of time before that increased authority is taken advantage of and abused. That’s why you need rules for the government in place to insure that government still has its limits, even at the borders. Currently there doesn’t seem to be any right to privacy in place, and I don’t believe that to be a healthy system. The question, I suppose, is where would you draw the line?

    Comment by UCrawford — February 11, 2008 @ 5:04 pm
  13. Brdrknight,

    I just hope I get Customs agents as reasonable as you every time I go back to the US.

    I concur with Goose :)

    Comment by UCrawford — February 11, 2008 @ 5:06 pm
  14. UCrawford- in your first point I would agree. But “lack of consistency in how the laws are applied” is a problem we have as a society not limited to Customs or border authority. Judges have been known to abuse their authority with tremendous implications for us all. Environmental officials institute policies that affect us in ways we don’t care to think of. Examples can be too long to list here.

    There are many countermeasures put in place behind the scenes to address officer abuse. With an agency operating at such a massive scale such as US Customs, there will be abuses. I am not an apologist. But I believe there is much more good done by us with border authority on behalf of the American public than bad. And when compared to many other border authorities across the globe in terms of rights and treatment- we are what they would aspire to be. Most who have dealt with such would agree.

    Where do I draw the line? No government agency should go unchecked. That applies to EVERY agency including mine. Officers must be held accountable for their actions. Travelers must be held accountable for theirs. Rewriting our laws every time they are questioned is not the answer. Active oversight, a means to report abuse, accountability and flexible policies are the way to deal with government agencies that drift outside of its boundaries. As far as I know all those elements are in place within my agency.

    One final point- for every traveler that may report an incident of privacy intrusion (as in the subject article), there is a much greater amount that simply viewed their search experience as an necessary inconvenience.

    Goose- TSA is a different topic string altogether but I am open to discussing their policies.

    Comment by brdrknight — February 11, 2008 @ 6:05 pm
  15. brdrknight,

    …“lack of consistency in how the laws are applied” is a problem we have as a society not limited to Customs or border authority. Judges have been known to abuse their authority with tremendous implications for us all. Environmental officials institute policies that affect us in ways we don’t care to think of. Examples can be too long to list here.

    Point taken and conceded. But I also think it’s important not to ignore issues in one area of government because the same issues occur in other areas of government.

    There are many countermeasures put in place behind the scenes to address officer abuse.

    I don’t doubt that, and as a general rule I think Customs is probably one of the better run agencies as it seems they understand the importance of not imposing undue restrictions on commerce and immigration. However, oversight can often vary from administration to administration and fall prey to the same problems as everything else in government (oversight of contractors under the Bush administration being a prime example, although I know it’s kind of an apples-to-oranges argument in regards to your department… http://oversight.house.gov/story.asp?ID=1318 ). When it comes down to it, the problem I have is not that there are too few laws restricting the people who patrol the border in regards to our privacy, but that there don’t appear to be any and that we’re taking the word of the government that it will police itself, which is an invitation for abuse by those who don’t appreciate the balance between liberty and security.

    Simply put, laws restricting the government aren’t there because they’re necessary for the people who have the best intentions…they’re there to deal with the people who have the worst intentions. Good people in government generally don’t need oversight and laws to do the right thing…but the bad ones can do so much damage without them. And to prevent that I believe you need oversight or restriction that falls outside of self-policing.

    Rewriting our laws every time they are questioned is not the answer.

    I agree…it’s neither feasible nor wise. However, I still think some lasting protections for privacy need to be considered. I’m not a lawyer or an expert on Customs, TSA, or immigration policy I’m just an average guy who realizes that government’s not something that should be left to its own devices, so I’m not sure exactly where that limit should be set. But I think that a limit does need to be set.

    One final point- for every traveler that may report an incident of privacy intrusion (as in the subject article), there is a much greater amount that simply viewed their search experience as an necessary inconvenience.

    I’m sure that this is true…my own personal experiences with border authorities have been fairly positive…but as someone who’s traveled fairly extensively from overseas to the U.S. and back in both the pre- and post-9/11 era it seems that restrictions and rules that are in place seem to increase drastically as time goes on without much thought to where they’ll end up and often it seems they cross the line from inconvenience to infringement on our liberties. I just think that those limits need to be discussed (although, as you’ve said, we’re probably talking about more of the TSA-type stuff than Customs).

    Comment by UCrawford — February 11, 2008 @ 6:49 pm

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