A Stitch in Haste

“…it is constitutional, because the courts say it is constitutional…”
–Homeland Security Secretary Michael Chertoff, on the federal government’s policy regarding search and seizure of electronic devices at border points.

Introduction

For some time now there has been a growing agitation, especially in the blawgosphere, over the increasing incidence of searches of laptops and other data storage devices at airports and other border crossings. Several different appellate decisions were handed down over the past year or so reiterating what most lawyers already knew: the government reserves a nearly unconditional prerogative to search anything or anyone at any international checkpoint.

Then the dam burst:

Federal agents may take a traveler’s laptop computer 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.
…
Civil liberties and business travel groups have pressed the government to disclose its procedures as an increasing number of international travelers have reported that their laptops, cellphones and other digital devices had been taken — for months, in at least one case — and their contents examined.

The recent court cases had been clogging my aggregator for months, but like so many other libertarians I was kick-started by the DHS announcement into finally commenting.

How Did We Get Into this Mess?

Two observations regarding border searches quickly jump out at any libertarian with a rudimentary knowledge of the Constitution:

1. There is in fact no enumerated “border power” mentioned in Article I Section 8 — or anywhere else in the original Constitution. There are only the powers: (1) to lay and collect duties, and (2) to regulate commerce with foreign Nations.

2. Even if there were a clearly enumerated “border power,” there is a long-standing, common sense canon of constitutional interpretation that “amendments trump articles.” So the (later) Fourth Amendment should still apply, regardless of what the (earlier) original Articles might have originally authorized.

So how did we go from these two straightforward principles to a “plenary authority to search and seize” at a border where the Fourth Amendment is null and void?

Here was the Supreme Court’s reasoning:

The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789 had, some two months prior to that proposal, enacted the first customs statute. Section 24 of this statute granted customs officials “full power and authority” to enter and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed…”
–U.S. v. Ramsey, 431 U.S. 606 (1977)

That pathetic scrap of questionable legislative history (and flat-out wrong constitutional interpretation — remember: amendments trump articles), which clearly only concerns raising revenue and not criminal or national security goals, has been the cop-out by which the courts have flippantly ignored the plain text of the Bill of Rights for two hundred years, to the point where William Rehnquist could actually posit, with a straight face:

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.

So don’t act surprised when Michael Chertoff in fact offers “no extended demonstration” of the government’s laptop policy. He doesn’t need one, and he knows it. And while you may of course grow as furious as you want toward Chertoff, or Bush or anyone else in the executive branch, be sure to save some of that indignation for all those federal judges and justices over the decades who thought this all somehow made perfect sense.

How Do We Get Out of This Mess?

Various challenges have been made to the “plenary border search power” doctrine over the years, especially as international travel has increased to the point of being commonplace. The approach has often been, “This time is different” — “The mail is different.” “My vehicle is different.” Etc. Almost all have failed. (The one exception has been, “My anus is different.” U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985).)

But there is simply no way that federal judges, faced with so much precedent to the contrary, are going to buy the argument that “my laptop is different” (or certainly not “my iPod is different”) and suddenly rediscover a Fourth Amendment right at the border. A different approach is needed.

One attempt that showed promise was a two-step variation on this theme: The Fourth Amendment might not apply at the border, but it does apply at our home, and isn’t our laptop a lot like our home?

Arnold argues that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” and the “human mind.” Arnold’s analogy of a laptop to a home is based on his conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He argues that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

The court was not buying any of it:

Arnold’s analogy to a search of a home based on a laptop’s storage capacity is without merit. The Supreme Court has expressly rejected applying the Fourth Amendment protections afforded to homes to property which is “capable of functioning as a home” simply due to its size, or, distinguishing between “‘worthy’ and ‘unworthy’ containers.”
…
Here, beyond the simple fact that one cannot live in a laptop, [precedent] militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” Second, one’s “expectation of privacy [at the border] … is significantly less than that relating to one’s home or office.” Moreover, case law does not support a finding that a search which occurs in an otherwise ordinary manner, is “particularly offensive” simply due to the storage capacity of the object being searched.

[U.S. v. Arnold, No. 06-50581 (9th Cir., April 21, 2008) (PDF -13 pages)]

I think the “laptops store so much data” argument could conceivably be reworked into a cost-benefit sort of argument. What, exactly, is the government looking for on a laptop? Only two things with any regularity: child pornography and terrorist files — both of which can just as easily be shipped into the U.S. as carried on a laptop.

Put questions of privacy and intrusiveness to the side for a moment: Is it really a rationally justifiable use of scarce government resources to go on fishing expeditions through randomly selected hard drives? (And if the searches aren’t random, then why not show some restraint and pledge only to base such searches on individualized suspicion in the first place?) Every dollar and person-hour spent randomly searching for stuff is a dollar or person-hour not spent specifically searching for people: the terrorists and the kiddie-porn peddlers.

There is never — never — an “inherent” authority of the “sovereign” to act irrationally. Even where (supposedly) no rights are at stake, the government must still have a rational basis for any and every action it undertakes. In a civilized society with a sane jurisprudence, opportunity cost alone would be sufficient grounds to demand some speck of individualized suspicion before undertaking an intrusive search of one’s private documents. The fact that the plain text of the Fourth Amendment unambiguously demands that all searches and seizures be “reasonable” only reinforces this uncontroversial position.

Unfortunately, today “rational basis” means “rational or irrational basis” and “reasonable” means “reasonable or unreasonable.” Even the leading “cost-benefit analysis” jurist, Richard Posner, practically insists that no data should ever have any Fourth Amendment protection of any kind, at the border or anywhere else — you don’t want another 9/11, do you?

The courts stumbled out of the gate on this issue back in the Eighteenth Century and have been useless on the matter ever since. Unless judges somehow become willing to discard a mountain of precedent (and they won’t — no matter how incoherent that precedent is), expect no constitutional remedy to this outrageous practice.

Conclusion

Not since the eminent domain abomination Kelo v. New London has there been such a wide, broad and deep public dissatisfaction over a core constitutional issue. But the best thing about our courts can sometimes be a bad thing too: insulation from public opinion. Change in this instance, at least for the foreseeable future, will not be coming from the courts. We must rely on the political branches.

Senator Russ Feingold recently held hearings on the issue. In the House, Representatives Eliot Engel and Ron Paul have introduced a bill, The Securing Our Borders and Our Data Act of 2008 (H.R. 6702), that would: (a) require reasonable suspicion to search a data device at an international entry point, (b) reject outright “inherent sovereign authority” as a basis for any border search of a data device.

The bill will of course go nowhere before the election (which is probably for the best — cf., telco immunity). But tomorrow, or at least January 20, is another day.

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More thoughts at WindyPundit, Washington Watch, Reason Magazine.

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