In my coursing about the net, I ran into a networking site post that summed up the issues as:
“…the issue is what the definition of ‘unreasonable’ is ”
Ahem. No. It isn’t.
Strangely enough, almost as if the authors had actually thought about the matter, the constitution’s fourth amendment provides a very specific definition for “reasonable”:
Probable cause, supported by oath or affirmation, a description of the place to be searched, and the persons or things to be seized, which in turn forms the basis for issuing a warrant, and the warrant itself is the legal pivot upon which the authorization of the federal government to search, or not search, depends.
The states must follow this definition because the 14th amendment says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Local jurisdictions in their turn must follow suit because they must comply with the laws of the state they exist within.
As can easily be understood, any argument about “reasonable searches” not being explicitly defined in the 4th amendment is entirely sophist. There it is; how much plainer could it possibly be? So with the understanding that the 4th goes into very specific detail on exactly that subject, and was written by people whose primary interest was limiting federal power, you simply cannot say that the conditions required for a reasonable search aren’t laid out in there. You also certainly can’t say that the terms for an unreasonable search are laid out in there — those aren’t unreasonable terms, they’re reasonable terms.
So, with the specific and explicit definition of what ‘reasonable” is right in hand, as given by the constitution itself, the definition of “unreasonable” is crystal clear: anything that doesn’t match those requirements. Anything.
Now, if congress wants some other definition of “reasonable” in there, then amazingly enough, there is a mechanism specifically provided for them to get that accomplished; that is article V, Amendment. There is no other way they can legitimately effect such a change.
They can, however, assert unauthorized power by simply making unconstitutional legislation, just as they have with ex post facto laws, the inversion of the commerce clause, various kinds of censorship, and an entire laundry list of other unauthorized power grabs; and in such an effort, they will continue to enjoy the support of the executive and the judiciary, because after all — they’re all part of the same system, and all benefit from accruing additional power.
Consequently, it is very important that we, as citizens, remain cognizant of the difference between the authorizations of power made by the constitution, and the naked grabs for unauthorized power made by oath-breaking members of the executive, congress, and the judiciary. What little power we have — essentially fractional measures (votes) of “throw the bums out” with regard to our own members of congress, and the executive — should be used whenever we detect such unauthorized activity.
The problem is that most people don’t bother to read the constitution, and are wholly unaware that the federal government has widely violated its constituting authority in many areas; there’s an almost impossible obstacle to overcome with regard to informing the public as to just how far outside the lines the federal government has extended itself.
Please. Go get a copy of the constitution. Read it. Read the federalist papers. Read the history of the Virginia constitution. Read everything Thomas Jefferson ever managed to get on paper, throw out the parts on slavery, and cherish the rest. Likewise, dig up Benjamin Franklin’s comments, and, after getting over what a happy pervert he was, commit the rest to memory. Then read the constitution again.
The constitution is literally the constituting authority for the US federal government. To any degree that they do not comply with this document, they are engaged in unauthorized exercise of power. Use your vote to remove anyone you catch voting for unconstitutional legislation. That’s the best thing you could possibly use a vote for. Seriously. There is no higher calling than moving this country closer to the exalted state of liberty made possible by the constitution.
Oh, and by the way — that whole laptop thing? In the vast majority of cases, they are entirely without probable cause, so there is no authority to either search one or seize one. See how easy that was to figure out? And isn’t it amazing that they figured this out over 200 years ago without the help of any modern legislator?
Vote ‘em out, friends — vote ‘em out.
Tags: 4th, amendment, authority, border, fourth, laptop, power, search, seize, seizure
August 8, 2008 at 10:04 am |
The problem with your reasoning is that the protections of the constitution only apply once you are on US soil. The searches are happening as a person attempts to re-enter the US. They are given the choice of either allowing the inspection, or not entering the US. The Supreme Court has stated time and time again, that there is no right to privacy of any individual who is attempting to enter the United States — that the right of the government to ensure the safety of its citizens is above any individual right in this case.
Also, despite protests, it is accepted that the individuals suitcase or briefcase can be inspected without being “unreasonable”. A Laptop or other electronic device is no different that a suitcase or briefcase in that it holds something that may be inspected.
The only argument that has any chance of gaining traction is seizing the device in question for search at a different facility, or later time. Due to the inherent value of a laptop or PDA to one’s life, losing such an item for a few weeks/months might rise to the level of “unreasonable”. But that could lead to other problems, like someone making a quick copy to provide relief against the unreasonable aspect of seizing it. Is such a copy legal? Would it be OK if they made copies of all paper in a briefcase? How about photographs of everything.
This isn’t new. People have NEVER had any sort of right of privacy when entering a different country (beyond intrusive anal searches). What has folks upset now is that the electronic media tends to hold more information that they every could have physically carried before, and that border agents might seize their property over concerns of copyright violation or charges of pornography. Such seizures have been going on for decades with real physical items (try to sneak in a fake Rolex and watch it be seized).
August 8, 2008 at 11:30 am |
Hi, Bob. Thanks for commenting. To address your points:
US border guards, and the border stations they work within, are on US soil. You didn’t think they were in other countries, did you? For instance, at the US-Canadian border, the US station is on US ground, and the Canadian station is on Canadian ground. It has to be that way so that the laws of the country in question take precedence. What you’re thinking of, probably, is the state of admission to the country, which is a state of being not unlike being, or not being, a felon — not their location.
The constitution states that “all people” (in other words, not just citizens) have the right to be secure, absent probable cause. Further, it does not give the supreme court the right to amend; see article V; Finally, no amendment has been done. Thus, probable cause is required or they cannot search. The constitution is open and shut here. If they want to have this power legitimately, they must amend. Consequently, the supreme court is wrong (and furthermore, they don’t have an authorized power to amend, so what they say is actually irrelevant to my observations — the 4th amendment supersedes any judicial opinion.)
Many things are accepted, Bob, but that in no way means they pass constitutional muster. The reasoning that “something is inspectable, therefore we can inspect it if we want to” is prohibited by the constitution.
Ah. I should point out that I’m not taking this position because I think it has a chance of being recognized; I’m taking this position because based on everything I know, it is actually the correct position. I’m under no illusions about the government giving up the powers it has taken without authorization; however, I think as a matter of patriotic duty, the facts are important to bring to light.
This is not even close to accurate. I have my grandfather’s visa (a beautiful and interesting document), issued by the state department for him and his family, including servants. I also have his diary of his travels, which includes border crossings. With that paper in hand, he had permission to travel, and absent some obvious problem that served as probable cause (and I’ll come to your example momentarily), he was free to re-enter this country without anyone being searched or otherwise molested by the federal government. How other countries act, or acted, is irrelevant to a constitutional position. So is whether this is new or not; the issue is simply if it these behaviors can be pursued under authorized government powers — not if they are accepted practices.
First of all, absent probable cause, there’s no authorized way for anyone to know what’s in the box, as it were. Secondly, transport of unbreakably encrypted, anonymous digital data across a border without having it subject to even the usual “Anything to declare?” is utterly trivial. To assume the idea that someone would do so in a laptop as a matter of criminal intent is to assume that they are so stupid as to not be able to operate the laptop. Third, neither copyright violation or pornography are a threat to the country. Fourth, pornography itself — in terms of laws about it — is a blatant violation of the first amendment. Fifth, there is absolutely no justification for making such a mockery of the 4th amendment at the border for either case, any more than there is to invade your home to see if you have “copyrighted material or pornography.”
“Anything to declare?
“Yes, this Rolex…
“Sir, this watch is counterfeit. It constitutes probable cause; we’re going to confiscate it. You may be charged in relation to this seizure.”
…or….
“Anything to declare?
“No, sir…
(subject trips, Rolex spills out)
“Sir, this watch is counterfeit. It constitutes probable cause; we’re going to confiscate it. You may be charged in relation to this seizure.”
That’s the set of 4th amendment constitutional metrics at work. If the government wants more legitimate power at the border, it can get it by amending the constitution. It cannot get it from a judge; Judges don’t have the power of amendment.
In summary, what you are arguing for is the status quo; that’s fine as far as it goes, but it doesn’t serve to address my position, which is that the status quo itself is a condition that has come about via a number of significant steps outside authorized powers by the US federal government.
Unquestionably, they’ve made a real mess; the judicial power to amend was magically wafted into existence based on totally ignoring article V and a sophist interpretation of article 3, section one. Quite aside from the border, they have extended 4th amendment abuses into the heart of the country by intercepting all manner of electronic communications and more. These things are common practice, and yes indeed, the government will argue that based on the judicial authority (not constitutional) and imperial powers (not constitutional either) they can do whatever they want.
But is this really surprising? Has the government ever said “oh, we were wrong here, whoops, we’ll stop”?