Monday, August 31, 2009

What Fourth Amendment is that?

Civics 101:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That's the Fourth Amendment. It's a basic protection the framers understood was necessary not from abstract analysis but from regular and ongoing experience under British rule. While application is always a difficult question, the fundamental point seems clear enough: No seizing or searching of you or your stuff or your home without good, specific reason.

Government has never much been enamored of the Fourth Amendment since it interferes with the ability to stop and search you at will or to break down your door and paw through your stuff just 'cause. I understand that. If I were the government, I'd probably like to be able to keep tabs on everyone all the time. It'd sure make crime fighting easier. Make it easier to curb dissent, too.

Anyway, here's the basic idea according to the courts. Warrantless searches and seizures are per se unconstitutional except in a few specific and well-delineated circumstances. Those circumstances may vary some from jurisdiction to jurisdiction, but here, as an example, is the complete Ohio list.
  • Search incident to a lawful arrest
  • Consent
  • Stop-and-frisk searches
  • Hot pursuit
  • Probable cause accompanied by exigent circumstances
  • Plain view
  • Administrative searches
Got that. Any other search, unless there's a warrant, is unconstitutional. And those exceptions are all found in the language of the Fourth Amendment. (Oh, wait, no they're not.)

I could write at great length about every one of those exceptions and how each is applied by the courts in such a way that the exceptions swallow the rule. Perhaps one of these days I'll start a series of Fourth Amendment posts on just that point. But not today.

Today I want to talk about one of the exceptions that's not on the list and that has no basis in the language of the Fourth Amendment. It exists because the courts say it does, plain and simple. It's the border.

When you enter the United States, when anyone enters the United States, the government can search you and your stuff at will. It can do it for good reason or for no reason. It can do it looking for something particular or it can just do it. The courts say it's fine because the government has a right to decide what enters the country, and they can't control that if they can't figure out what you're bringing in. As the Supreme Court put it in 1925:

Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.
This isn't new. They've been doing it, literally, since the nation was established. The Fourth Amendment seemingly prohibits those searches, but the Fourth Amendment doesn't apply at the border because if it did, those searches wouldn't be allowed, and they are. Got that. Good.

Now you've got the background.

In July 2008, the Department of Homeland Security adopted a formal policy allowing the suspicionless seizure and search of people's laptop computers as they came into the country. They'd hang onto the computers, download the information on them, rifle through it looking for whatever they might find. Oh, and they might keep the computer for, say, ever. Cell phones, too. Any electronic storage device.

Of course, they didn't do it often, but they did it. National security, don't you know. Oh, and if instead of a terrorist plot or a spy ring, they'd turn up evidence of insurance fraud or child pornography, well, them's the breaks. If you'd just kept your computer at home, you'd never have been caught.

Last week, the ACLU filed a lawsuit trying to find out just what the government was taking and why, what the government was doing with it, and what justification the government had for doing what it was doing. (You can read a copy of the complaint here.) The next day, the Department of Homeland Security released new standards. (You can read the press release and find links to the new standards here.)

The new policy is an improvement. It puts time limits on how long they can hold your things without basis to think there's evidence of crime. And it says that they have to return your information unless it shows probable cause of a crime. Still, the fundamental problem remains. The government can take your computer or phone or flash drive or whatever, just 'cause it wants to, and can root through it looking for evidence of whatever it might find. And that's because terrorists can bring computers across the border with all sorts of dangerous information on them. (Of course, they can send that information by e-mail and avoid the risk of search.)

And the Fourth Amendment still seems to prohibit it. At least, I can't find the phrase that says, "except at the border."


  1. And what about the all-encompassing "officer safety" exception that every prosecutor and police officer asserts, yet no such exception has ever been formally adopted as far as I can tell. Judges buy into it because what elected official wants to go on record as stating there is no such thing.

  2. Well, sure. But if we're going to talk about the unofficial exceptions, we'll never get done.

    Key at the moment is the public safety exception, for instance, you know - when someone mentions that there are kids in tents in the back yard. (Oh, wait, they only use that for drugs in the back yard or when a bunch of polygamists are hanging out at a compound in Texas.)