August 5, 2008

The Foolishness of Blind Faith

While it has long been held that random searches of closed containers and their contents at the border are reasonable, the Supreme Court has also advised that, in the interests of human dignity and privacy, reasonable suspicion is required before carrying out intrusive searches of a traveler's person. In April, however, the Ninth Circuit Court of Appeals ruled that border agents can examine the contents of a laptop or other electronic storage device without reasonable suspicion of wrongdoing, based on the contention that such devices are no more than personal property, like a bag or a suitcase. In so doing, the Ninth Circuit rejected the idea that electronic storage serves as an extension of human memory and that a search of stored personal data constitutes, essentially, an invasion of the person.

Although it is undoubtedly desirable to apprehend people bringing child pornography or information that can be used to carry out terrorist attacks across the border, random searches of innocent travelers will just as certainly reveal sensitive – albeit legal – personal and corporate information. As noted in a recent article in The Register:
This decision equates computers to a box or a briefcase, but not many briefcases allow you to store all of your written correspondence, family pictures, passwords, credit card numbers, tax returns, medical information, work product, trade secrets, personal journal entries, etc. in the same place.
At the time of the ruling, the Department of Homeland Security (DHS) under which the Customs and Border Protection (CBP) agency falls, issued no guidelines or rules for travelers who might wish to avoid running afoul of its new approach. That changed in July, when, according to the Washington Post, CBP and Immigrations and Customs Enforcement (ICE) clarified their policy:
Federal agents may take a traveler's laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.
The potential for abuse and error under this system should be apparent, but if it is not, consider that the Department of Homeland Security has already exhibited profound failure to protect its own sensitive data by losing a laptop containing the personal information - including Social Security Numbers - for all 33,000 applicants to the new "Clear" program for expedited security processing at airports. To make matters worse, no standard has been established for searches and seizures by CBP and ICE; they are entirely at the discretion of the agents involved. Literally then, all that is required to end up detained and/or without one's personal electronic effects is that a DHS employee doesn't like the way you look. This is no mere lapse, either, as Homeland Security Secretary Michael Chertoff admonished in an opinion piece that appeared in USA Today:
As a practical matter, travelers only go to secondary when there is some level of suspicion. Yet legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed.
While, for the sake of argument, we might assume that the Customs and Border Protection agents are well-intentioned, the idea that their individual opinion of right and wrong or even trustworthiness should supersede the Constitution is pretty staggering in its arrogance, no matter the ruling of the Ninth Circuit. The United States was not founded for the convenience of the government and its bureaucrats, or even its policeman and soldiers. It was founded, in fact, on the very opposite principle: that the government is not to be trusted. That principle in turn has been proven wise repeatedly by the efforts of people like J. Edgar Hoover, Richard Nixon, Ronald Reagan, Oliver North, George W. Bush and Dick Cheney to operate outside the law, and Secretary Chertoff's protestations are simply more of the same aversion to accountability we have seen as a matter of course during the Bush Administration.

What seems to escape people like Michael Chertoff - again, even assuming his good intentions - is that, as citizens, our sole function is not be "protected." Rather, Mr. Chertoff is an employee of the public in what is supposed to be a nation of laws, rather than one where the judgement of people who are paid at the public till determines how best to treat adults as if they were children. To believe otherwise, by definition, equates to a belief that the American system is either undesirable, a failure, or both.

Any power held by the Department of Homeland Security is derived - or at least is supposed to be derived - from the very people upon whom border agents may look upon as "suspicious" or "untrustworthy." There are certain risks inherent in a free society, and the Constitution, in addition to being the foundational document of the United States of America, is our implicit acceptance of those risks. Our history - indeed the history of all nations - is littered with demands from those with power to simply trust them because they know what is best. Although they may, in fact, be right in any given instance, it is deeply unwise to simply cede control to such individuals or groups. There are far too many examples of abuse to make placing blind faith in their judgement anything but foolish. We are either a nation of laws or a nation of men, and only the first is a democracy.

For a perfect example of what happens when law enforcement and other officials feel they can act at their own discretion with impunity and without adhering to standards or the law, take a look at this video of the abusive arrests made by the New York Police Department (NYPD) during a recent Critical Mass bicycle demonstration in Manhattan. While it can be argued that Critical Mass rides in general are a nuisance and even illegal, there is no question that the officer who is the subject of this video significantly violated the public trust, assaulting at least one rider, arresting another without cause, and filing false reports to justify his actions.

Become a StrangeBedfellow!

On a separate but related note, August 8th is the day for the AccountabilityNow moneybomb. If you care about holding your government accountable for the actions it takes - especially those that undermine the Constitution like the recent capitulation on warrantless wiretapping - please take a moment to visit the AccountabilityNow website and pledge to participate in this powerful fundraising effort!

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