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Tuesday, April 29th 2008

The Privacy Thing Stops At The Border

While You Were Busy Watching Dancing With The Stars A Little Bit More of Your Right To Privacy Died

So this 9th Circuit Court decision looked a little more outrageous when I first saw it, but it still remains a fine excuse to bring up the political topic most important to me. Civil liberties.

I’m sure it will come as a surprise to many but Border and Customs Agents can essentially seize any electronic device you are transporting into the U.S. and hold it for as long as it takes them to ‘search’ it. And such is what they’ve been doing more of late.

Laptops may be scrutinized and subject to a “forensic analysis” under the so-called border search exemption, which allows searches of people entering the United States and their possessions “without probable cause, reasonable suspicion or a warrant”…

The 9th Circuit Court recently reaffirmed the legality of data on electronic devices being scrutinized under the border search exemption to the 4th Amendment. What I really disagree with is the breadth of the border search exemption, but ruling it extends to data on electronic devices is nothing new. As Wired and Yahoo! blogs point out such searches of computers has been upheld since at least 2004. But the claim that searches of US citizens at the border “are reasonable simply by virtue of the fact that they occur at the border,” (as the Supreme Court has put it) and current U.S. Customs law are far too broad of a mandate for current U.S. Customs.

Some discretion is being used in determining who gets searched and who does not. Allowing Border Agents such authority has some benefits, they are the ones on the front line, but it also has major pitfalls in terms of our privacy.

Let me frame the the security versus freedom issue. These are on a scale. We could always be safer at the expense of further rights. We could all renounce our right to privacy further and have cameras in our homes and renounce our right to property further and have the taxes to pay for people to monitor those cameras. True, the yield for each further bit of privacy we forfeit is probably less but the maxim holds.

That might seem like an obvious definition of the debate but I’m currently annoyed by arguments such as those claiming that if you’re not a criminal you have nothing to fear or asserting that the U.S. has to protect its borders. Such are ridiculous in that they contribute nothing in trying to define how to tilt the scale of freedom versus safety.

In any case, the border exemption is far too broad at present. I hate it.

As for the extension of such to electronic data, there is a reasonableness to the legal argument considering how the border exemption has been defined. However, the pragmatic result seems fishy at best.

We should try to maximize the return on our forfeit of liberties (such as the right to privacy). The return for checking IDs, checking citizenship, checking large vehicles for illegal immigrants or devices of terrorism is considerably higher than that for checking a number of laptops based on the suspicions of some GED carrying Border Agent.

I would’ve hoped, however much their legal arguments were in line with prior court holdings, that the 9th Circuit Court (here and here and here) would’ve had some gall and would’ve help reverse the general decline in our civil liberties.