Column 132 – Fourth Amendment

The Fourth Amendment to the Constitution of the United States is composed of only 54 words, but could not be more clear in its meaning and intent:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment was ratified on December 15, 1791, so it's understandable that the Founders did not say "papers and effects," rather than "computers, flash drives, external hard drives, cell phones, and PDAs," but I don't think it's a stretch to consider that in the modern age, those would count as "effects."

The current Republican administration, however, doesn't seem to agree with this common-sense interpretation. For about six years now, with very little publicity or public notice, federal border agents have been confiscating travelers' electronic gear to be searched. According to a recent survey by the Association of Corporate Travelers cited in an editorial in Sunday's San Francisco Chronicle, seven percent of business travelers report having their laptop searched by federal officials. That same editorial reports that travelers have been prosecuted for crimes based on what has been found in these blatantly illegal searches.

So imagine this – federal officials show up at your office without a warrant and confiscate all your business's records – customer files, employee files, financial files – and go through them at their leisure. If they find something they feel is prosecutable, you then have to defend yourself. "no warrants shall issue, but upon probable cause, supported by Oath or affirmation."

Since 9/11/2001, the Bush administration and, until 2006, it's majority in Congress has operated from the position that the threat of terrorism allows them to ride roughshod over Constitutional guarantees of rights, particularly where non-citizens were concerned. This argument has been so broadly applied and is so hypnotic, supported as it is by the specious equation of the wars in Iraq and Afghanistan with the "war on terror," that even the usually liberal Ninth Circuit Court of Appeals (what neocons call the "Ninth Circus Court") in San Francisco has upheld the government's right to do this.

Well, the Court's incomprehensible action notwithstanding, there is no such right. On the contrary, it does not require a constitutional lawyer to see that the Fourth Amendment states just the opposite in black and white terms. The only possibly gray area in the Fourth Amendment is in the phrase "the right of the people." Who are the people? Historically, except where the Constitution specifically says otherwise, the protections of the Bill of Rights (remember the Bill of Rights?) have been considered to extend to anyone who found themselves under the jurisdiction and protection of the United States Government, including non-citizens, and recently including even those who have come here illegally, but we don't have to argue that one here – the people whose laptops have been seized and kept by the government for periods up to several months, are, by definition entering the country legally – they present themselves to the border agents, present their passports and visas, and have every expectation (and every right to expect) that they will be quizzed about how long they will be staying, the purpose of their visit, inspected by Customs for any declarable goods, and sent about their business. Certainly that has been my expectation in visiting everywhere from the UK to Angola, and I have never been disappointed.

Senator Russ Feingold has introduced a bill in Congress to rectify this situation, and the Bush White House and the Department of Homeland Security do not feel the need to explain themselves to the Senate Judiciary Subcommittee on the Consitution, or even to send a witness when asked. So much for Constitutional checks and balances under this administration. As the Chronicle editorial said, "It's clear that the federal government needs to be reminded that all travelers, whether US citizens or not, do not surrender every shred of their rights at the border. Nor should they be required to surrender every shred of their personal belongings without…a reason to do so."