William Worthy isn't worthy to enter our door
Went down to Cuba, he's not American anymore
But somehow it is strange to hear the State Department say
You are living in the free world, in the free world you must stay
The words above are from the chorus of a song entitled Ballad of William Worthy by the late, great protest singer Phil Ochs, about a journalist who lost his passport because he visited Cuba after that became illegal.
And while there is no firm policy quite like that today, even for Cuba, in as sense we are now all trapped, at least if we wish to maintain any privacy. And for those of us who use technology it is especially frightening to consider the implications of how the 4th Amendment has been erased, especially by the Department of Homeland Security, an abomination whose creation needs to be erased, and whose accumulation of powers without oversight needs to be rolled back as much as do the assertions of the unlimited power of the unitary executive. And on this subject, I think even Russ Feingold is too deferential.
What raises my ire this morning is to read yet again about the policy of DHS of being able to seize, without warrant, materials brought into the nation, even by returning US citizens, with neither a warrant nor probable cause. My criticism of Feingold is his willingness to accept the lower standard for search that is applicable in schools of reasonable suspicion. My reading is an article in this morning's Washington Post entitled Travelers' Laptops May Be Detained At Border. The current DHS policy, which were issued by Customs and Border Protection and also by Immigration and Customs Enforcement on July 16, require no suspicion whatsoever.
The title of the article is deceptive. Yes, the article begins with a focus on laptops:
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.
And that policy allows sharing copies of the contents of laptops "for language translation, data decryption or other reasons" and in some cases laptops have been "detained' for months. But the policy is not limited to laptops and other electronic devices. To quote the article:
The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "
In other words, anything containing any kind of information may be "detained." And while if no probable cause of wrongdoing is found the materials are supposed to be returned, the article also notes that
any copies of the data must be destroyed. Copies sent to non-federal entities must be returned to DHS. But the documents specify that there is no limitation on authorities keeping written notes or reports about the materials.
Further, the article notes
there is no specific mention of the handling of personal data such as medical and financial records.
Stop for a moment. There is no standard for search, not even reasonable suspicion. The regulations presume unlimited ability to search for evidence that would meet a probable cause standard, and there is no time requirement within which the examination of seized items must be completed. Nor is there a requirement for destruction of any written notes or reports about the examination. Ponder that for a moment, or perhaps more.
The rationale for such policy, which apparently has been in place for quite some time even absent issuance of the regulations, is, according to a statement to Feingold by the Customs Deputy Commissioner
that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.
.
Now let me reasonable. We have had a history of banning the importation of some books - thing back to the seizure of Lady Chatterly's Lover. And there are substances which are illegal to bring into the United States. Thus there is no requirement for any level of suspicion to search through the possessions of someone entering the United States, citizen or not (excepting Diplomatic pouches, which are exempted by international agreement - and remember a "pouch" could be a large trunk). But such searches of entering travelers have traditionally been immediate, and absent evidence of a problem the possessions are immediately returned.
As my wife points out, we are currently hearing justifiable outrage about the restrictions to information being imposed during the Olympics by the Chinese, such as access to internet sites. We have seen conservative Senators like Sam Brownback raising holy hell about such restrictions. And yet Brownback and far too many people remain silent about restrictions being imposed here at home.
The article references a recent USA Today op ed by DHS Secretary Chertoff about the "most dangerous" contraband found in various electronic devices including laptops, with Chertoff asserting
Searches have uncovered "violent jihadist materials" as well as images of child pornography
One might suppose the rationale for holding material is to break encryption and/or to translate from languages that cannot be read by the officials at the entry points. And yet, were the same material shipped in bulk in a shipping container, it would have almost no chance of being examined. And if the rationale is that such dangerous information needs to be stopped at the border, we would need to have restrictions on what comes over the internet - oh wait, we do, because NSA is capturing all such information, as we have discovered in recent years - although we have not as yet heard of a single prosecution based on that information seizure.
I have been amazed that in the past three years all of us "radical" types have apparently been allowed to travel freely in the United States, often boarding planes to come together for our "plotting" at conventions of like-minded types. And it is not that big a stop from asserting the right to make such examination without any standard of suspicion to those crossing our border to the next step - to those crossing state lines, because after all the Federal government regulates interstate commerce and the assertion could be made that there is a chance that laptops or papers represent a violation of some Federal law with respect to Commerce.
It is somewhat shocking to realize that a panel of the nation's most liberal Circuit Court, the 9th, upheld the right of the government to do these seizures. And Feingold rightly asserts that there are no restriction against profiling by race, religion or national origin. Or, might I note, political orientation or criticism of the current administration. No standards, and hence no oversight.
We have seen many erosions of restrictions on the Government's violation of our privacy, in some case with the complicit consent of the United States Congress. But the implications of this policy seem a dangerous further expansion. There is nothing in the regulations that prohibits government agencies from installing spyware upon one's computer, whether these be encrypted keystroke loggers or other programs. There is no requirement that the data and programs on the computer at the time it was 'detained' be there when the device is returned, or that if not, some justification be given for removal.
Perhaps it has always been so. After all, to travel internationally one needs a passport issued by the Federal government. While travel among the states is considered an inherent right of US citizenship, the Constitution does not seem to give a similar inherent right to international travel, and the government has often restricted our ability to travel by declaring passports not valid to travel to certain nations, or prohibiting the expenditure of money for travel to or travel in such nations.
Now? We are being told we travel to other nations at our own risk, at least implicitly surrendering any right to privacy in our papers, books, and electronic storage of information and images. And that has the effect of restricting us, perhaps even imprisoning us within the boundaries of the United States.
And then? It may no longer be just the state department, so let us update the words of Phil Ochs:
but somehow it is strange to hear the Federal government say,
You are living in the free world, in the free world you must stay
Peace