Do You Live In The Constitution-Free Zone Of The US?

from the 2/3rds-of-americans-do dept

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one’s civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile “buffer zone” part of that story gets most of the attention, but it isn’t a new thing. They’ve been claiming that for a while. It’s just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map — which happens to cover about 2/3 of all American citizens.

Click through for the ACLU’s interactive version. This isn’t a new map, and, no one is claiming that these regions don’t have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

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Comments on “Do You Live In The Constitution-Free Zone Of The US?”

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217 Comments
Robert (profile) says:

Re: Re:

Not if you’re supported financially by the security firms who are waiting for laptop/HDD/mobile device file scanners to become mandatory after they “find” “terrorists” transporting harddrives containing information pertinent to “national security.”

Everyone else, congress/senate/ordinary citizen/visitors are fair game.

Check out the ACLU’s Stop and Frisk App and the story that goes alone with it.
http://www.popsci.com/gadgets/article/2013-02/can-app-stop-new-yorks-stop-and-frisk

Rikuo (profile) says:

Re: Re:

No. I remember one time hearing that politicians can bypass all these security checks, because it delays them, and delaying politicians is illegal, because then they might not be present to vote on stuff. I might have got a few details wrong, and I can’t quote anything, but I believe it was in relation to the fact that very few, if any, US politicians speak out against the TSA.

E. Zachary Knight (profile) says:

Re: Re: Re:

Article 1 Section 6 of the US Constitution:

“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Anonymous Coward says:

Re: Re: Re:2 Re:

trea?son
noun ˈtrē-zən
Definition of TREASON
1
the betrayal of a trust : treachery
2
the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family

Sounds like making unconstitutional laws that injure the rights of the public to which they have sworn their allegiance would constitute such a betrayal of trust, so yeah… That shoe fits.

Anonymous Coward says:

Re: Re: Re:4 Re:

Words mean what they mean. Are you saying that unless the words used in laws have a definition spelled out in the constitution that it is meaningless? Maybe that is part of the problem and why simple phrases in the Bill of Rights like “Congress shall make no law” and “shall not be infringed” don’t seem to mean anything to law makers or judges.

John Fenderson (profile) says:

Re: Re: Re:5 Re:

And part of the problem is that it’s not precisely clear what some of the language in the Constitution really means. The perpetual battle over the second amendment, for example, is only possible because there are two reasonable ways of interpreting the plain language, and those ways happen to be at odds with each other.

John Fenderson (profile) says:

Re: Re: Re:9 Re:

The issue with the second amendment is not the “shall not be infringed” part. The issue is that the amendment can be reasonably interpreted in two ways: either everyone has the individual right to bear arms, or the states have the right to have armed militias, not necessarily individual people.

Both of these interpretations can be supported, and it’s far from clear from the text what the founders really meant. This is the problem, and is why this argument will never, ever end unless we get a new amendment to clear it up.

Anonymous Coward says:

Re: Re: Re:10 Re:

The meaning of the word militia at the time of the drafting of the Bill of Rights was the entire body of the citizenry that was capable of keeping and bearing arms, ie. the general public. The word didn’t come to be associated with organized militias that we think of today like the National Guards until much later. So SCOTUS actually got that one right in their decision on Heller.

John Fenderson (profile) says:

Re: Re: Re:11 Re:

So SCOTUS actually got that one right in their decision on Heller.

In your opinion. This is one of the supportable arguments, as I said. The other argument is equally supportable (what does “well-organized” mean? It certainly seems to indicate something different than just “anyone who can hold a gun”)

Anonymous Coward says:

Re: Re: Re:12 Re:

And besides, the first part of the second amendment is just an attempt explain WHY it is there, not a place a limitation on it.

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The first part only explains it’s purpose. If you remove that part altogether it doesn’t add or take away from the right that it is intended to guarantee. So the whole argument about the meaning of the word militia is a side irrelevant one anyway.

Anonymous Coward says:

Re: Re: Re:14 Re:

You’re just an ignorant liberal shill who’s so full of shit the whites of your eyes are probably brown.

“… the right of the people to keep and bear arms shall not be infringed.”

There is only one interpretation of that phrase, and it is that keeping (owning) or bearing (carrying) arms (weapons) shall not be infringed (limited or revoked).

Note it does not say anything about any TYPES of arms, amounts, or anything else. You CAN read, right?

Anonymous Coward says:

Re: Re: Re:15 Re:

While I agree 100% with your argument as it is exactly the point I was trying to make. Adding insults does not make it any stronger. It only makes you look like a troll. Although I disagree with John’s perspective, he was expressing it with civility and thus deserves respect within the discussion as I was giving him. I suggest reserving those sorts of comments for the actual trolls that have proven that they do not deserve such respect.

Jose_X (profile) says:

Re: Re: Re:15 Re:

There is only one interpretation of that phrase

If there is only one, then I think the best interpretation is not yours but is something else closer to what the Supreme Court has decided in general.

Let’s consider a parallel statement:

“The right of the people to eat food shall not be infringed.”

I think most people would consider the above, absent further context, to mean A below rather than B.

A: “The right of the people to eat some food in some way and in some quantity shall not be infringed.”

B: “The right of the people to eat any food however they want and in whatever quantity they want shall not be infringed.”

I think you picked the less likely meaning, and I am fairly sure you are incorrect in insisting that only one meaning is possible and that it would be your meaning.

Here is another variation.

If I say that I can carry weights. Most people would not think I am saying that I can carry any weight imaginable but instead that there are some weights out there that I can carry.

Absent a modifier, the most natural meaning of a phrase is frequently not an extreme case but a gray area (“some”) case. That is how we use English daily. If you modify, you are being extra specific. If you don’t, you are leaving things more up in the air or are using a short-cut to mean something whose meaning is discerned from further context.

You will notice that contracts and regulations tend to be very wordy and precise, laws less so, and a Constitution the least precise of all or at least to allow the most room for maneuverability. That is not a requirement but a practicality. So while a Constitutional right might be to “bear arms” a law might mention that felons, civilians, the mentally disabled, young people, etc, have limitations.

This is what we find in society. Your absolutist interpretation is for frustrated commenting online.

anti-tod says:

Re: Re: Re:16 Re:

felons are a funny phenomina(?),If you were a felon back then they busted out the rope and a couple tinders of wood or a tree if the had to… you didn’t have the same criminals causing havoc because they were dead as door nails.
the constitution is based on a “you can do this and they can’t stop you” reasoning (They being the government) If I want to “lift” 2 tons than I can because it’s not the government stopping me but gravity.

Jose_X (profile) says:

Re: Re: Re:15 Re:

> Note it does not say anything about any TYPES of arms, amounts, or anything else.

Note it does n-o-t say,

“the right of the people to keep and bear any arms without limitations shall not be infringed?”

You simply assumed that in the absence of any modifiers that the default was one extreme case.

anti-tod says:

Re: Re: Re:16 Re:

time-period where you could purchase a galleon and all the cannons for if you had the money and personal cannons ON LAND… yeah the “extreme” modifier isn’t the default at aaalll. Remember that they used the principles of a militia (ages 18-45/50) it was a case of BYOG (Bring You Own Gun) whether that was a cannon or rifle and you assisted in the defense of the nation

Anonymous Coward says:

Re: Re: Re:14 Re:

My position is that the argument that was made about the meaning of militia is a red herring. Removing that from the statue does not change the meaning. The only reason it is there is to provide some insight into WHY the statute was included in the first place. If you remove that part how else could you interpret it based on the meanings of the language as it was used during the time it was drafted?

Jose_X (profile) says:

Re: Re: Re:13 Re:

> And besides, the first part of the second amendment is just an attempt explain WHY it is there, not a place a limitation on it.

The first part adds context and context tends to matter.

Consider an alternative:

“Guaranteeing one’s ability to hunt currently being a popular desire, the right of the people to keep and bear arms shall not be infringed.”

or

“For the purposes of hunting, the right of the people to keep and bear arms shall not be infringed.”

These imply different shades of gray.

Anonymous Coward says:

Re: Re: Re:10 Re:

And like I said before… the legislators and judges seem to want to ignore the “shall not be infringed” part and pretend like it is not even there. SCOTUS determined that it’s an individual right, and that right according to the plain language of the Constitution “shall not be infringed”. What is left to argue about?

LookingOverMyShoulder (profile) says:

Re: Re: Re:13 Re:

I do feel like the average citizen should be able to purchase any weapon commonly used by any domestic law enforcement group/unit. Since most of those SWAT teams do have some weapons that are selectable between semi-automatic and fully automatic then that would mean I do believe that act is an infringement. Personally in a real fire fight to me all a fully automatic weapon would be good for is to make the other side keep their heads down at too high a price in ammo. I’d much rather depend on aimed fire.

LookingOverMyShoulder (profile) says:

Re: Re: Re:10 Re:

In my opinion and I think in the opinion of the SCOUS right now the 2nd amendment hinges on 2 words, militia and people.

In the body of the constitution it defines a militia as an armed body of troops. Anywhere else it uses the word people in the other amendments it is talking about the entire body of citizens and the meaning is that the citizens might need those arms to protect themselves from government run amok along with from thieves and other dangers.

If you read the Federalist papers it’s quite obvious that protection from government was one of the reasons.

Anonymous Coward says:

Re: Re: Re:11 Re:

But to ascertain the meaning of the statue you have to look at what the words MEANT AT THE TIME it was written, not what they mean today. Back then the word militia meant the entire population. Not an organized group of trained soldiers. Those didn’t exist in the form that we have today.

LookingOverMyShoulder (profile) says:

Re: Re: Re:12 Re:

The constitution was going to bring into existence a standing army. this made a lot of the people including patriots very uncomfortable since they had just finished a war of rebellion against a legal standing army. In fact Thomas Jefferson was one of those against having a standing army. James Madison was for having one if I recollect what I read of the federalist papers. The second amendment was to answer those fears. Today what do things look like? Do all of those invasive practices at airports and the cops showing up in riot gear an a peaceful demonstration seeking redress from the government make you feel safer and more secure in your person?

Anonymous Coward says:

Re: Re: Re:13 Re:

Furthermore, the British forces had just been repelled by a group of what basically consisted of armed citizens, so the statement that an armed citizenry was necessary for the maintenance of a free state meant that they had to be ready to defend themselves against threats from both a potentially tyrannical central government AND external forces bent on conquest.

Anonymous Coward says:

Re: Re: Re:10 Re:

“The people” means individual people. It would make no sense to specifically pass a amendment to say that the government had the right to bear arms – they already HAVE an army.

You think it means the states? Look at the tenth amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This clearly shows that “the United States”, “the states”, and “the people”, as used in the Bill of Rights, are all different things. If the Second Amendment was supposed to refer to states, they would have said states. But they said “the people”, so it refers to the people.

Anonymous Coward says:

Re: Re: Re:2 Do you live ...

“It’s not international border, it’s point of international entry”

Says who?

“The term `reasonable distance,’ as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director”

It clearly says EXTERNAL BOUNDARY. Unless you’re thinking of some other law.

Anonymous Coward says:

Mike–

They can’t just search any laptop in that 100-mile range. Instead of pumping out mindless FUD all day long that you’re too dishonest to defend in the comments, why don’t you write one single article where you thereafter defend even one or two of the silly points you make. Why do you keep publishing idiotic nonsense like this? I have never seen anyone care so little about truth. Seriously. You pretend to be a “evidence-based” person. Yet you seem to have next to no evidence about border search law. You don’t care about evidence. You ONLY care about spreading FUD.

Beech says:

Re: Re: Re:3 Re:

Then discuss on merits. Here are the “merits” you have put forth so far,

“They can’t just search any laptop in that 100-mile range.”
An interesting contention. Let’s see what you have to back it up,

” mindless FUD “
” you’re too dishonest”
“care so little about truth.”
“You ONLY care about spreading FUD.”
“being a coward “
” Total fake. Total coward. Only cares about spreading hate and FUD.”
” He writes this blog for the idiots. He’s too insecure to be challenged.”

So yes. You have done a great job defending your point of view with evidence and relevant links, and TOTALLY not any ad homs at all. The above quotes show that you, truly, are all about discussing things based on merits and not just silly name calling.

Is this guy serious?

Anonymous Coward says:

Re: Re: Re:

If you actually want to convince anyone, perhaps you could post the rules you think they operate under? You complain about evidence, but make an assertion without providing any.

The search still has to qualify for the so-called border search exception. Not all searches within that 100 miles are border searches, so regular Fourth Amendment law would apply. There’s a series of Supreme Court cases that explicitly discuss this exception (including the magic 100 mile number that Mike pretends isn’t the law).

Anonymous Coward says:

Re: Re: Re: Re:

Ok, explain then what constitutes a BORDER search. Perhaps… maybe… it might have something to do with actually crossing a BORDER and be actually need to be located AT A BORDER for such a crossing to occur and thus why it is actually called a BORDER search. Or do you think they called it that just because they thought it sounded so nice?

Anonymous Coward says:

Re: Re: Re:2 Re:

And as I stated in the previous article, although a laptop wasn’t searched, I was previously stopped at one such checkpoint (where a request to search my laptop could have just as easily been requested) 75 miles inside my own state despite the fact that I had never left the state. So I can tell you from PERSONAL EXPERIENCE that the damn 100 mile crap is definitely not FUD.

weneedhelp - not signed in says:

Re: Re: Re:2 Re:

Asshole much?
Border Patrol — 100 miles from border — strikes fear in the community
https://www.youtube.com/watch?v=N4ZmSUfYYOY

Telemundo 52 documented the U.S. Border Patrol’s recent activity in Corona, California — a city more than one hundred miles from the U.S./Mexico border.

Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA

BORDER BORDER BORDER. MILK MILK MILK.

Anonymous Coward says:

Re: Re: Re:3 Re:

“within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle… for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States”

They can search for illegals in that 100 mile zone. They CANNOT take your laptop for no reason. Unless you have a REALLY big case on the thing that an illegal might be hiding in.

It’s now the job of your side of the argument to show otherwise, if you want to convince me.

Anonymous Coward says:

Re: Re: Re:5 Re:

That’s the problem. 100 miles isn’t “a reasonable distance” for the simple reason that most of the people being searched there never crossed the border at all.

And chances are that most searches within that 100 mile zone are not “border searches.” You might want to read the Almeida-Sanchez and the Brignoni-Ponce cases from the Supreme Court. The Court agrees that not all searches in that 100 mile zone are reasonable. You can be searched within 100 miles of a border, yet not have it be a “border search.”

Anonymous Coward says:

Re: Re: Re:2 Re:

Yeah, I just re-read the Constitution and…the 4th amendment doesn’t say anything about 100 miles from anything. So…yeah…reading, it’s for the win.

The Supreme Court’s interpretation of the Constitution is the supreme law of the land. As the Constitution says, we are free from “unreasonable searches and seizures.” The issue becomes one of reasonableness: Is a given search reasonable or not? Whether the search is reasonable turns on the facts. According to the Court, when the search is done at a border, no suspicion or warrant is needed for the search to be reasonable. It’s not that the Fourth Amendment doesn’t apply at the border, it’s that what’s reasonable changes because it’s at the border.

Anonymous Coward says:

Re: Re: Re:2 Re:

Can you cite the most relevant Supreme Court cases related to border searches? Your opinion is fine, no consensus needed.

Here’s a few:

http://scholar.google.com/scholar_case?q=413+U.S.+266+&hl=en&as_sdt=2,19&case=6933260753627774699&scilh=0

http://scholar.google.com/scholar_case?q=473+U.S.+531&hl=en&as_sdt=2,19&case=279694717208509367&scilh=0

http://scholar.google.com/scholar_case?q=428+U.S.+543+&hl=en&as_sdt=2,19&case=12168013009786458670&scilh=0

http://scholar.google.com/scholar_case?q=422+U.S.+873+&hl=en&as_sdt=2,19&case=17010248136028194244&scilh=0

http://scholar.google.com/scholar_case?q=422+U.S.+891+&hl=en&as_sdt=2,19&case=930526622971426401&scilh=0

http://scholar.google.com/scholar_case?q=462+U.S.+579+&hl=en&as_sdt=2,19&case=13366850492031728795&scilh=0

Anonymous Coward says:

Re: Re: Re:3 Re:

I’m saddened to read this in United States v. Martinez-Fuerte:

“There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons.”

Why am I saddened? Because it’s in the DISSENT.

Anonymous Coward says:

Re: Re: Re:4 Re:

Another footnote:

Title 8 U. S. C. ? 1357 (a) provides in pertinent part:

“Any officer or employee of the [Immigration and Naturalization] Service authorized under regulations prescribed by the Attorney General shall have power without warrant?
. . . . .
“(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . .”

The Court of Appeals also relied on 8 CFR ? 287.1, which in relevant part provides:

“(a) (2) Reasonable distance. The term `reasonable distance,’ as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section.”

So does DHS actually claim they can search laptops 100 miles from the border? The statute here says they can search “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States”. Clearly, a laptop cannot contain an alien, so it could not be searched under this law.

Anonymous Coward says:

Re: Re: Re:5 Re:

And just to be clear, here is the law on searching things:

(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.

This means, perhaps, they can search the laptop of “any person seeking admission to the United States” without a warrant. A person who is already here is not a “person seeking entry” no matter HOW close to the border they are. So this law does not apply.

My question is: Did DHS EVER actually say that they had the right to search laptops 100 miles from the border? Or did people just string several laws together and make bad assumptions?

Anonymous Coward says:

Re: Re: Re:5 Re:

So does DHS actually claim they can search laptops 100 miles from the border?

You’re thinking about this far more than Mike did. The document that got this latest round of malcontents stirred up is here: http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdf

Relevant directives include CBP directive: http://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf and ICE directive: http://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf

Ninth Circuit opinion that’s on point: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf

LookingOverMyShoulder (profile) says:

Re: Re: Re:6 Re:

In the above document:
ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent. Two public Directives issued in 2009 (CBP Directive No. 3340-049 ?Border Search of Electronic Devices Containing Information? and ICE Directive No. 7-6.1 ?Border Searches of Electronic Devices?) impose requirements governing use of this authority in searching, reviewing, retaining, and sharing information contained in electronic devices.

I believe the operative phrase is “warrantless searches of merchandise at the border and its functional equivalent.”

Functional equivalent I’d say is their 100 mile zone and airport check points.

also in the next section:
Fourth Amendment
The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP?s and ICE?s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.

Here this is the next step they take thinking they are acting in a manor that doesn’t not help our civil rights. If you can parse out that crap you are better at English than I am.

We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

Anonymous Coward says:

Re: Re: Re:7 Re:


I believe the operative phrase is “warrantless searches of merchandise at the border and its functional equivalent.”

Functional equivalent I’d say is their 100 mile zone and airport check points.

“Functional equivalent” is NOT that entire 100 mile zone. “Functional equivalent” means things like airports. That’s made clear in the Supreme Court cases I cited above. FUD-packing fact-haters like Mike want to scare people into thinking that DHS can do suspicionless/warrantless searches anywhere in that 100 mile zone. That is not what DHS said, and it’s not the law. It’s complete FUD.

Anonymous Coward says:

Re: Re: Re:2 Re:

I’m not him, but, here’s something from the 9th Circuit:

UNITED STATES OF AMERICA v. I.E.V.

‘Our Circuit ?has previously recognized only two circumstances when a car and its passengers are properly subject to ?extended border searches? away from the border.? United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981). The first circumstance is where the ?officers can determine ?with reasonable certainty? that any contraband which might be found in the vehicle was aboard the vehicle when it crossed the border.? Id. (quoting Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966)). The second circumstance where an ?extended border search is valid? is when ?customs agents are ?reasonably certain? that parcels have been smuggled across the border and placed in a vehicle, whether or not the vehicle itself has actually crossed the border.? Id. (quoting United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970)). ?[R]easonable certainty is a stricter standard than probable cause.? Id. (internal quotation marks omitted) (citing United States v. Kessler, 497 F.2d 277, 279 (9th Cir. 1974)). There is no dispute that neither factual situation occurred in this case.’

Rikuo (profile) says:

Re: Re: Re:2 Re:

I too can’t believe he actually wrote that. He admits he bases his knowledge on what is said by a group of judges, rather than on how policy is actually done in the real word? I wonder what AJ’s opinion is of extra-judicial drone strikes? I’m pretty sure that with his “logic”, he’ll say they don’t happen, because they’re illegal and the President doesn’t have the authority to authorise them.

Anonymous Coward says:

Re: Re: Re:6 Re:

The exact same thing you always do no understand. That there’s more going on than just the court opinions. That real life happens in the spaces between the explicit rulings and the unexamined interpretations of the law made by various agencies. That court opinions are but shadows on the wall compared to what’s actually happening on the ground. That they’re vague outlines of half impressions of what specifically was in front of the cave. That you’re the man in Plato’s Cave insisting that the shadows are reality.

Mr. Applegate says:

Re: Re: Re:3 Re:

Well on first blush (I haven’t read them yet) all those decisions are from the 70s and the 80s. None of them are after the rather radical changes to laws that occurred post 9/11. None of them address laptops etc.

So I would offer some more recent information. I link to the article, because the link to the decision is broken, but I will look for it when I have some time.

From 2008 “Border Agents Can Search Laptops Without Cause, Appeals Court Rules BY RYAN SINGEL04.22.083:21 PM”
http://www.wired.com/threatlevel/2008/04/border-agents-c/

I would also point to the following:
“Border rules revised on search, seizure of electronics, digital files”
http://www.cnn.com/2009/US/08/27/borders.computers/

Again failed links are preventing me from quickly locating the actual DHS rules or the opinion from 2008.

So you are offering decisions that are 25-40 years old, when there are a lot of new laws on the books since 9/11. DHS is granted a lot of authority to ‘make law’ so that they can ‘move quickly’ to thwart ‘terrorism’.

Let’s look for some law since 9/11 and preferably in the last 3 – 5 years.

Anonymous Coward says:

Re: Re: Re:4 Re:

Well on first blush (I haven’t read them yet) all those decisions are from the 70s and the 80s. None of them are after the rather radical changes to laws that occurred post 9/11. None of them address laptops etc.

Still good law.

More recent decision on point from Ninth Circuit: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf

The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts. Perfect fodder for the TD brain trust, no doubt. But stupid.

Rikuo (profile) says:

Re: Re: Re:5 Re:

“The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts.”

What exactly are you even arguing here? Yes, it is stupid that the feds think they can seize and search any computer they want. We all agree on that. What precisely are you saying (pertinant to this article please, no rants about Mike) that runs counter to what this article is about?

Anonymous Coward says:

Re: Re: Re:7 Re:

Where did DHS ever say that they had the authority to seize any laptop within 100 miles of the border?

They don’t have that authority, nor have they said they did. It’s the FUD-masters like Mike that’s turning this into a “Constitution-Free Zone” where DHS can just do whatever it wants. They can’t. All they said was the fact that they have the authority to conduct border searches and seizures away from the border under certain conditions.

Anonymous Coward says:

Re: Re: Re:7 Re:

You seem to be missing that part of the problem is that no one really knows for certain what all of the various agencies, whot have seen their discretionary authority massively expand post 9/11, have interpreted the limits of their discretion to be. So we’re forced to rely on inference from many different sources because there is no direct answer, yay or nay, from the DHS on how much power they really think they have (and they’d be stupid to give one).

So on the one hand we’ve got rulings that say boarder patrol checkpoints 100 miles from the border are a-ok and on the other hand we’ve got rulings that say laptop searches at the border without suspicion are fine. What does that mean? Is there some reason laptop border searches would have different proximity rules compared to ‘searches for illegals?’ And how can you unequivocally state that “clearly, a laptop cannot contain an alien, so it could not be searched under this law” absent any guidance given that a laptop search could very easily be argued to be pursuant “to prevent the illegal entry of aliens into the United States.” Nothing in that clause suggest that such searches are limited to searching for actual aliens, just for things that, when found, would help prevent the entry of aliens to the United States.

What’s an average citizen to make of all these grey area absent a clear ruling or a precisely worded statue? I guess they could take your track and just have faith that border patrol agents will exercise their discretion to the most limited extent possible in spite of all the examples to the contrary and weak catch-all excuses like “well if the border agent performed a search he must have had cause.”

Anonymous Coward says:

Re: Re: Re:8 Re:

“Nothing in that clause suggest that such searches are limited to searching for actual aliens, just for things that, when found, would help prevent the entry of aliens to the United States.”

No. It says aliens. Not things that will help them search for aliens. Aliens.

http://www.law.cornell.edu/uscode/text/8/1357

“within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle”

(the “reasonable distance” being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)

Anonymous Coward says:

Re: Re: Re:9 Re:

No. It says aliens. Not things that will help them search for aliens. Aliens.

http://www.law.cornell.edu/uscode/text/8/1357

“within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle”

(the “reasonable distance” being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)

I get what you’re saying. It does say that the 100 mile thing is to search for aliens. Since the computer seizure is a property search for contraband, that 100 mile thing doesn’t appear to apply. My guess would be that the 100 mile thing is where they can set up a checkpoint to find aliens. Once a checkpoint is set up, it’s a “border search” and the Fourth Amendment rules that apply to such searches are in force. Or there could be other statutes that apply that you’re just not looking at. I dunno the answer to that one. I’d have to research it. Nice work.

Anonymous Coward says:

Re: Re: Re:10 Re:

Still the reality of this is that the spirit of the 4th amendment is that US Citizens are not to be stopped without probable cause and searched without a warrant period when going about their day to day lives inside their own country. Entering the country is something completely different which is why border searches (all kinds) belong at the border and other points of entry and no where else.

Anonymous Coward says:

Re: Re: Re:11 Re:

Still the reality of this is that the spirit of the 4th amendment is that US Citizens are not to be stopped without probable cause and searched without a warrant period when going about their day to day lives inside their own country. Entering the country is something completely different which is why border searches (all kinds) belong at the border and other points of entry and no where else.

I think you’re misunderstanding the Fourth Amendment issues at checkpoints. The Court says this:

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to ?free passage without interruption,? *558 Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which? ?(a)ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.? ? United States v. Brignoni-Ponce, supra, 422 U.S., at 880, 95 S.Ct., at 2579.

Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:

?(T)he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.? 422 U.S., at 894-895, 95 S.Ct., at 2587.

In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. 422 U.S., at 882-883, 95 S.Ct., at 2580-2581. We concluded there that random roving-patrol stops could not be tolerated because they ?would subject the residents of . . . (border) areas to *559 potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. . . . (They) could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road . . ..? Ibid. There also was a grave danger that such unreviewable discretion would be abused by some officers in the field. Ibid.3

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular **3084 exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.13

United States v. Martinez-Fuerte, 428 U.S. 543, 557-59 (1976)

Anonymous Coward says:

Re: Re: Re:12 Re:

I didn’t say that the decisions made by the courts didn’t twist the meaning to say that it was ok. I said that the decisions that allow them violate the spirit of the 4th amendment.

Take for instance the 2nd amendment. What do you think the words “shall not be infringed” mean. It’s really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it’s face.

Anonymous Coward says:

Re: Re: Re:13 Re:

I didn’t say that the decisions made by the courts didn’t twist the meaning to say that it was ok. I said that the decisions that allow them violate the spirit of the 4th amendment.

I don’t think it violates the spirit. The test described in the Fourth Amendment is reasonableness. What’s reasonable at the border (or its functional equivalent) is different than what’s reasonable elsewhere. I also think there’s some confusion here about whether the DHS actually has claimed that it can perform a “border search” anywhere in that zone. I don’t think they did claim that, nor would it be true if they did. They can certainly perform searches in that zone, but those searches would necessarily be “border searches” that can be conducted without suspicion/cause/warrant.

Take for instance the 2nd amendment. What do you think the words “shall not be infringed” mean. It’s really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it’s face.

I have never studied or thought about the Second Amendment, so I don’t have an intelligent answer to give you without researching the language a bit. I could compare it to the First Amendment that says free speech shall not be abridged. Whether something abridges free speech or not leaves a lot of wiggle room since “abridge” can mean lots of things.

Anonymous Coward says:

Re: Re: Re:13 Re:

This is in effect what lawyers do. Play semantical games with the words of the law in order to twist them to mean whatever they want them to mean. Judges are almost always lawyers first. Same with legislators. So this is what we get. It’s just like Clinton’s weak response to being questioned about Monica Lewinsky.

“Well it depends on the meaning of the word ‘is'”;

Twist and turn it until it means what you want. That’s what you are doing. The intention of the 4th amendment is clear regardless of what any of the other laws or judicial decisions are.

Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.

Anonymous Coward says:

Re: Re: Re:14 Re:

This is in effect what lawyers do. Play semantical games with the words of the law in order to twist them to mean whatever they want them to mean. Judges are almost always lawyers first. Same with legislators. So this is what we get. It’s just like Clinton’s weak response to being questioned about Monica Lewinsky.

You say that like it’s a bad thing. 😉

Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.

Their mandate explicitly doesn’t end at the border. In fact, I believe they have the power to make a search and seizure anywhere in the United States.

Anonymous Coward says:

Re: Re: Re:15 Re:

When he said it I criticized him for giving a weak answer. What he SHOULD have said was something along this line:

“Even if I HAD done what you are accusing me of, last I checked adultery wasn’t against the law, and my personal life is MY personal life, so when you have a question that concerns the business of running the country, come back to me. Until then BUTT THE FUCK OUT of my personal life.”

I would have had a lot more respect for him if he would have had the balls to give that sort of response.

Anonymous Coward says:

Re: Re: Re:14 Re:

And checkpoints period violate the spirit 4th amendment. People are not supposed to be stopped by law enforcement unless they have probable cause to suspect that the person has committed or is committing a crime. Our country was founded on the principles of being a free society of citizens who are innocent until proven guilty. Asking a person who has done nothing other than traveling about the country to even produce identification proving that they are indeed a legal citizen is in an of itself a violation of this principle. If there is no probable cause, why should a citizen have to prove that he is not an here illegally when traveling within the country? You are not supposed to have to prove your innocence.

Anonymous Coward says:

Re: Re: Re:16 Re:

Like I said. It’s twisting the words of the laws to make it mean what they want it to mean despite violating the spirit of the 4th amendment. If you have reason to believe that I am driving drunk, fine pull me over. You have probable cause. You stop me just because I am driving down a particular road. No that is not probable cause.

Anonymous Coward says:

Re: Re: Re:15 Re:

And checkpoints period violate the spirit 4th amendment. People are not supposed to be stopped by law enforcement unless they have probable cause to suspect that the person has committed or is committing a crime.

That’s a valid point of view, but I disagree. I think that checkpoints, such as for DUI on New Year’s Eve or for aliens 50 miles from the Mexican border, are perfectly reasonable. The test is reasonableness, and sometimes checkpoints are reasonable even without suspicion.

Our country was founded on the principles of being a free society of citizens who are innocent until proven guilty. Asking a person who has done nothing other than traveling about the country to even produce identification proving that they are indeed a legal citizen is in an of itself a violation of this principle. If there is no probable cause, why should a citizen have to prove that he is not an here illegally when traveling within the country? You are not supposed to have to prove your innocence.

Passing through a checkpoint doesn’t change the presumption that you’re innocent. The reasonableness of the checkpoint stems from the government’s interest in enforcing the laws.

Anonymous Coward says:

Re: Re: Re:16 Re:

And DUI checkpoints don’t stem from the governments interest in enforcing laws so much as their interest in generating revenue. It makes it more efficient for them to write tickets that can will turn into revenue (whether those tickets are warranted or not). Public safety is the excuse used to sell the violation of their rights to the public. The whole purpose of requiring probable cause to get a warrant to search is to make it so that law enforcement are not able to go around harassing innocent citizens for no reason. You have to have a reason to suspect them before you bother them and you have to show that you have probable cause to a judge and prove to him that it is reasonable in order to get permission before you do a search. That is the whole point of the 4th amendment.

Anonymous Coward says:

Re: Re: Re:17 Re:

And DUI checkpoints don’t stem from the governments interest in enforcing laws so much as their interest in generating revenue.

I’m sure that’s a part of it, but I don’t think that’s the only reason. I’ve had two friends die because of drunk drivers. I think that law enforcement legitimately want to prevent such things, and I’m all for them setting up whatever checkpoints they want within reason.

Anonymous Coward says:

Re: Re: Re:18 Re:

I’m not saying that DUI isn’t a problem that needs to be taken lightly. People who drive drunk need to be taken off the streets, not at the expense of the Constitutional rights of the law abiding citizens.

Also a false accusation of DUI can effectively ruin someone’s life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I’ve had friends that have been through this.

And what is with these mandatory blood tests on holiday weekends? You don’t just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.

Anonymous Coward says:

Re: Re: Re:19 Re:

I’m not saying that DUI isn’t a problem that needs to be taken lightly. People who drive drunk need to be taken off the streets, not at the expense of the Constitutional rights of the law abiding citizens.

Also a false accusation of DUI can effectively ruin someone’s life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I’ve had friends that have been through this.

And what is with these mandatory blood tests on holiday weekends? You don’t just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.

I want law enforcement to take drunk drivers off the street without violating their rights. I think that a reasonable checkpoint does just this. You imply that all checkpoints are unreasonable. I disagree. I say the more the better. I want every drunk driving asshole to have to look a law enforcement officer in the eye before they’re allowed to drive on inch more.

Anonymous Coward says:

Re: Re: Re:20 Re:

I want law enforcement to take drunk drivers off the street without violating their rights. But they ARE violating their rights. You have the right to refuse a breath test. They can get a warrant to get a blood test which they basically set up a rubber stamp process for these on these weekends to give lip service to the law. And you also have the right to have an attorney present during your interrogation. So before they try to take your blood, how many times do you think they will wait for your attorney?

I don’t like drunk driving any more than you do. I think they all deserve what they get. The difference with me is that I want them to have DUE PROCESS first. Not throw out the rights just because it’s a target rich environment for the city to make it’s yearly budget quotas.

And you don’t seem to care that people who aren’t guilty of anything happen to get caught up in all this and that there is no accountability for making a false accusation where that costs thousands of dollars and lots of time and energy to defend. You don’t care that innocent people are collateral damage in the process.

Anonymous Coward says:

Re: Re: Re:18 Re:

Back in the 80’s when MADD first started their very public campaign to urge people to designate a driver when going out for a night of drinking they initially had a measure of success with it and the DWI rates dropped significantly as a result. However, since a drop in the number of DWI’s being written also meant a decrease in revenue for the city of Houston, in order to compensate for this, police officers began following cars full of people when they left a bar, finding an excuse to pull them over and then wrote everyone in the car that was intoxicated Public Intoxication tickets.

What happened then was many of the people who initially had embraced the concept of being safe by giving up their ability to drive themselves found themselves facing hefty fines anyway, and reasoned that if they were going to be ticketed anyway they might as well drive themselves. And the rates went right back up. Now tell me that is the police acting in the interest of the safety of the public.

Anonymous Coward says:

Re: Re: Re:8 Re:

“You seem to be missing that part of the problem is that no one really knows for certain”

Apparently, not knowing doesn’t stop the ACLU from making maps and claiming it’s a Constitution-free zone.

“What’s an average citizen to make of all these grey area”

Apparently, they make a map of it.

OK, but seriously… You can argue that the rule that allows them to search laptops at the border without a warrant is bad. You can argue that the rule that allows them to search for illegals 100 miles from the border without a warrant is bad. But it is counterproductive to claim that this means they claim they can search laptops 100 miles from the border. The law doesn’t say this, they never said this (again, if I’m wrong on this, correct me) and it takes away from the actual arguments you can make about stuff they are ACTUALLY doing. It’s not like they’ve been so restrained that you have to make stuff up to criticize them.

Anonymous Coward says:

Re: Re: Re:9 Re:

Apparently, not knowing doesn’t stop the ACLU from making maps and claiming it’s a Constitution-free zone.

The map by the ACLU is based on the clear language of the statue you’ve quoted multiple times while arguing hear about the specific application of laptop searches. That there is no clear picture of the limits of their power on laptop searches doesn’t mean there is no clear picture on all of their powers. The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for ‘aliens.’ A fact you’ve pointed out multiple times but apparently it never clicked that this was a suspension of the 4th amendment. Go figure.

The law doesn’t say this.

You think it doesn’t based on your interpretation of the law. Yours is not the interpretation that matters. Given the facts at hand ‘Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?’ is a perfectly reasonable query. That you think you have a definitive answer to this query notwithstanding.

Anonymous Coward says:

Re: Re: Re:10 Re:

“You think it doesn’t based on your interpretation of the law.”

Well, yes. But the law says what it says. When it says aliens, it does not mean laptops. If you find an interpretation of the law by any member of government that says otherwise, let me know.

“The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for ‘aliens.'”

Not exactly.

Almeida-Sanchez v. United States.

“The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR ? 287.1 would pass constitutional muster.”

(This was the dissent, but note that the Court overturned the search in this case – even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)

Anonymous Coward says:

Re: Re: Re:11 Re:

Not exactly.

Almeida-Sanchez v. United States.

“The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR ? 287.1 would pass constitutional muster.”

(This was the dissent, but note that the Court overturned the search in this case – even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)

That’s a great case to look at since the Supreme court there found that a search that was 20 miles from the Mexican border wasn’t a “border search.”

Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For *273 example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.47 But the search of the petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border,5 was of a wholly different sort. **2540 In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ?unreasonable searches and seizures.?

Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).

What evidence-ignoring FUD-packers like Mike are missing is that just because the search happens near the border, it’s not necessarily a “border search” where the different Fourth Amendment rules apply. Almost all searches in this “Constitution-Free Zone” would be governed by the regular probable cause standards since they wouldn’t be “border searches.”

Anonymous Coward says:

Re: Re: Re:10 Re:

“‘Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?’ is a perfectly reasonable query. That you think you have a definitive answer to this query notwithstanding.”

But look at the very first sentence in this article.

“Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border.”

It isn’t asking “Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?”, it’s flat out stating that DHS is claiming these powers. But I see nowhere any actual claim of that by DHS.

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts.

I never said that they said that, nor do I believe it to be true. The point of the map, which I thought was clearly stated, was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.

I specifically stated in the post that no one actually believed those were “Constitution free zones.” The point of the map was to make a point about the specific DHS contention.

You either know that or you are the one spreading FUD.

Anonymous Coward says:

Re: Re: Re:6 Re:

I never said that they said that, nor do I believe it to be true. The point of the map, which I thought was clearly stated, was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.

But they absolutely CAN search laptops if certain conditions are met. The fact of the matter is that laptops can be searched anywhere in the United States, whether near the border or not. The issue here is whether the searches are legal. When it’s a “border search,” which is a term of art that has very specific meaning, then no suspicion or warrant is needed. When it’s not a “border search,” then regular Fourth Amendment rules apply. The mistake you’re making is in thinking that they are saying that any search that occurs within 100 miles of the border is a “border search.” It’s not, nor did they say that. As the case law I quoted above demostrates, searches near the border are not necessarily “border searches.” In fact, the vast majority of searches that take place in that 100 mile zone would not be “border searches” and would thus be governed by the usual probable cause/warrant standard. You don’t point out any of this in your article because you’re just a FUD-pumper.

I specifically stated in the post that no one actually believed those were “Constitution free zones.” The point of the map was to make a point about the specific DHS contention. You either know that or you are the one spreading FUD.

You’re the one that wrote an article with the FUD-filled title asking whether someone lives in a “Constitution-Free Zone.” If, as you admit, there is no such thing, then you must concede that asking the question itself is pure FUD since it implies that such a thing exists. The fact is, what’s a reasonable search under the Fourth Amendment changes with the circumstances. A search of your luggage at the border without warrant or suspicion is perfectly reasonable, but a body cavity search without suspicion is not. Away from the border, a suspicionless search is not reasonable. That doesn’t mean that there’s no Fourth Amendment protection at the border. It just means that the Fourth Amendment test is one of reasonableness, and what’s reasonable changes with the facts.

I’d be happy to explain why pretty much everything you write day in and day out on TD is pure FUD, but I know you’ll run away as soon as you start to look bad because you’re a dishonest sissy who can’t take criticism.

Anonymous Coward says:

Re: Re: Re:7 Re:

“I’d be happy to explain why pretty much everything you write day in and day out on TD is pure FUD, but I know you’ll run away as soon as you start to look bad because you’re a dishonest sissy who can’t take criticism.”

Translation: I’m sad because I can’t slay the imaginary dragon plaguing the world.

It’s okay AJ, there are more important things in this world than ego.

Anonymous Coward says:

Re: Re: Re:6 Re:

“was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.”

But please, please tell me: WHERE did they make this specific contention? Because the law says they can only search for aliens within that 100 mile range, not laptops.

They may have “some ability” to search a laptop 100 miles from the border, but so does the local police. Wouldn’t they at least need either probable cause of a crime (bringing it to about the level of any other enforcement agency), or be reasonably certain (a higher standard than probable cause) that the laptop was directly taken there from outside the US? If they ever claimed otherwise, please show me where.

Mr. Applegate says:

Re: Re: Re:5 Re:

Given the changes made after 9/11 I am not nearly as certain as you that it is “Sill good law”. DHS is given rather long leash and is allowed to create it’s own rules because our government officials are to lazy to properly write laws.

This is seen everywhere like the Librarian of Congress deciding every three years if it is legal to unlock a smartphone.

Allowing the EPA to establish the rules about pollution is another example of giving a governmental body (other than congress) the power to “make law”.

Can we agree that it is well accepted practice that US Customs (a division of DHS) can search laptops at the border?

I think that answer is yes.

Can we agree that US Customs (a division of DHS) is searching people in locations other than at the border without cause?

Perhaps you don’t think that is happening.

I offer:
http://americanvisionnews.com/1058/homeland-security-begins-random-armed-checkpoints
https://www.checkpointusa.org/DHS/homelandSecurity.htm

Just do a search for “DHS Security Checkpoints” for some interesting reading.

So legal or not DHS is doing searches other than “At the Border” and against American citizens. It is not a huge leap to expect that they might try to search your laptop since that is an ‘authority’ they have ‘at the border’. and DHS now claims that anything within 100 miles of the border, is “the border”. They have already gone way beyond what actual legal authority they really have.

There are a lot of ‘illegal’ things that go on in this country. That doesn’t mean they don’t happen.

Perhaps that is the area of disagreement, you seem to be of the opinion the DHS would never ‘cross the line’. In fact they cross the line daily, and people rarely push back, which gives them reason to push just a bit more.

I certainly am not saying it is legal, I will say it happens. I have been illegally stopped, searched, and they did take my smartphone (though it was returned and I was released with no citation issued after 10 minutes).

weneedhelp - not signed in says:

Re: Re: Re: Re:

Border Patrol — 100 miles from border — strikes fear in the community
https://www.youtube.com/watch?v=N4ZmSUfYYOY

Telemundo 52 documented the U.S. Border Patrol’s recent activity in Corona, California — a city more than one hundred miles from the U.S./Mexico border.

Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA

The laws and what is actually done on the streets are two different things.

DHS Checkpoint Blog Entry 6: Quasi-Detention
https://www.youtube.com/watch?v=yHqpuVetLeo
This is the way to handle an illegal checkpoint.

Anonymous Coward says:

Re: Re:

Come on Average_Joe. Again your comment is just a big fallacy with some pretty explicit ad hominem. Instead of trying to bait Mike with nothing, how about you provide sometihng to disprove what he writes. The hypocricy of making a post without any reasoning and full of FUD against a named person you claim is doing exactly that is pretty thick…

Anonymous Coward says:

Re: Re: Re:4 Re:

It means those regions where a specific Constitutional right (to be free of arbitrary searches) is largely inapplicable.

And that’s FUD. A search without suspicion/cause/warrant can only happen if it’s a “border search.” Not all searches in that zone are “border searches.” In fact, unless it’s at the border or its equivalent, then other rules apply. See above citation about checkpoints.

Kevin says:

Re: Re:

That’s mikes thing, isn’t it awesome how you got reported to the point that I had to click something to see what you wrote?

This sites been going downhill for ages, and mike doesn’t write anything but FUD articles taken way out of context. Although, you should have posted some sort of evidence (link?) to back up your statement; otherwise I have little choice but to fear this 100 mile nonsense.

Capitalist Lion Tamer (profile) says:

Not me. I live safely inland, in the area known as “flyover country.” However, it has its own “Constitution-Free Zone.” You’ll know you’re in it when you hear a member of law enforcement say, “You’re not from around here, are ya’ boy?”

(Note: Despite the above quote, women are NOT exempt from Constitution-free treatment. In most cases, “are ya’ boy” is replaced with “so we’ll likely have to do a strip search to get to the bottom of this broken tail light issue.”)

Anonymous Coward says:

International Airports?

Correct me if I am wrong, but I thought the language was broader then ‘border’, something about international airports being borders too? Or does that only apply to the land of the airport, and does not include the 100 mile fu…ule, rule, I meant rule. Also, didn’t they at some point claim any train station/tracks that had an out-of-nation track connection fall under their jurisdiction, as well as any bus depot with out-of-nation destinations? Or again, does that only apply to the physical building, and not the special 100 mile rule?

Phillip (profile) says:

Re: Re:

Depends how DHS would see it though.
Generally things come into play at the land, otherwise the entire coastal part is wrong since international waters start about 12 miles out (http://en.wikipedia.org/wiki/Territorial_waters)
as a result everything should only be affected 88 miles inland instead of the 100 they are showing, if this is the case.

Anonymous Coward says:

Re: Re: Re:

Nope, they are treating it as 100 miles from an external port of entry, not where the physical border lies. That is why the stripe follows Lake Michigan, even though it is, going by the actual international border, entirely within United States waters. However, it can be considered a Port of Entry because it is on the external edge of the United States.

what a jackass says:

Re: Re:

Im pretty sure the ACLU a bunch of lawyers, checked all this out before they posted it. I would tend to believe lawyers rather than wikipedia as much info at wikipedia has been being edited as of late. The edits seem to be completely changing what things mean. Wikipedia was spot on for many years,but these days seems to get edited to cover whatever postion the government takes

DH's Love Child (profile) says:

Re: Tilt Error

“Atlanta and Denver have international airports. Anything within 100 miles of either of these cities is also within the zone.”

If that’s the case, essentially the entire geography of the country would qualify as I’m pretty sure there is an international airport within 100 miles of almost everywhere.

Anonymous Coward says:

Well that sucks for me. Basically EVERY major city in Texas falls under this nonsense. With the exceptions being Fort Worth/Dallas and Austin. And Austin is just barely out of the area.

I literally live within 10 miles of the border and as someone pointed out yesterday, there’s a checkpoint on the major high between Brownsville and Houston. So between a rock and a hard place I fall. (And that’s not counting the other “minor” checkpoint on the back roads to Laredo. So I’m between a rock and two hard places.

Also, AJ, just sign in already. Sheesh man. We all know it’s you. There’s only one idiot who post the same almost word for word rant against Mike in EVERY single article on a daily basis. It went from cute to annoying to god I hope this guy suffers an aneurysm while sitting in front of his computer real quick.

Anonymous Coward says:

the Constitution has all but been removed. the bits that haven’t are in the offering and will be ignored as and when needed to. the USA has changed from being the most famous nation for it’s beliefs of freedom and privacy into a nation that is almost on par with the likes of N.Korea, simply because of the surveillance, the removal of privacy and the erosion of freedom. it took hundreds of years to build but only a few decades to destroy.

LookingOverMyShoulder (profile) says:

I do have a rather unique view .. If it were up to me I’d do away with anything at airports other than screening for explosives .. and I’d spend some time doing that to cargo not just passengers. It’s my opinion that 9/11 happened because too many people listened to the government too much. The government said not to worry if you got hijacked just do whatever they say and we will negotiate you out of it. Well that works when all the want is a ride somewhere. But as we found out sometimes that’s not all they want. It’s my belief that there will never be another plane flown into a building. As long as they can be kept out of the cockpit, they will be buried in bodies both living, dead and wounded. It will not happen in a plane I’m on.

Jana Murray (user link) says:

Hatteras Island, Southern Outer Banks

We are dealing with DHS through the guise of DOT, now that we are cut off from the Northern Outer Banks beaches. We had no warning, people are having to wait no less than an hour to ride on a 2.5 hour ferry ride. While they wait, an officer randomly checks IDs. We are anxiously hoping that the Southern Environmental Law Center is not going to be able to completely hijack this area, with the intent to block access to this thriving vacation community. http://wunc.org/post/dot-secretary-and-selc-director-debate-bonner-bridge#comment-1160151291

Bill P (profile) says:

Constitutional free zone

A “Constitutional free zone” means that there is no law, since the Constitution is the foundation of our laws and legal system there would be no laws, hence no authority to enforce any said laws.

The Constitution is not an optional component of our Government or of the laws and authority of the Government. With this current mentality we might as well go back to the absolute Monarchy Government we broke from England to get away from.

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