While I am on a roll righting the wrongs of those incorrectly bashing the Transportation Security Administration (TSA), because the agency needs no help what-so-ever in getting its self into hot water, I figured I’d finish up by correcting The Kim Komando Show’ reporting from the 25th of January 2014 regarding yet another court ruling that upholds the legal authority of the United States Customs and Border Protection to seize and search laptops and mobile phones at the border without probably cause.
The factual errors by The Kim Komando Show, syndicated by Fox News, and reportedly the largest consumer electronics talk radio show in the U.S., are common ones. They may be easy to mistake, but never the less, the facts and the history of the judgment are important. Also important is what is over looked in the debate over searches at the border with the expansion of the Border Search Exception Zone … which you need to read all the way to the end of find out how it may directly impact you.
… warning this post gets long and factual from here on out … so I suggest drinking a cup of coffee, chugging a Cherry Coke or taking an Adderall before continuing …
On the 25th of January The Kim Komando Show aired, Judge’s laptop ruling challenges the Constitution – and your privacy. I have touched on this before, even way back in 2008, here, US Customs Has The Right To Search Your Laptop Without Cause : What You Can Do and despite multiple court rules, the incorrect information seems to keep bubbling to the surface in the media.
First off, The Kim Komando Show twice states that the Transportation Security Administration (TSA) has the authority to seize and go through a passenger’s laptop.
The show’s story states
“You either appreciate that a laptop is a costly and delicate instrument you’d just as soon not be cavalierly tossed around by a TSA employee, or you do not. And you recoil at the thought of strangers pawing through that information on a whim, with trivial legal oversight, or you do not.”
… and …
“The taking of a laptop today is a striking act of confiscation almost without an equivalent 25 years ago. Back then, it would have taken a team of FBI agents days if not weeks to so comprehensively vacuum up a single American’s health, business, financial and personal information, not to mention that of so many of his or her friends, family members, and business associates. Today, Nosy McPatterson, your local TSA staffer, or Roscoe the border agent who got up on the wrong side of the bed that morning, can accomplish the same feat, and in an instant. ”
These statements by the show are false … and not by a little bit. The TSA does not operate in an area with people entering the United States from a foreign nation. The TSA’s Transportation Security Officers are also not Federal Law Enforcement Agents with law enforcement power. The TSA’s screeners operate in areas with outbound passengers or those in transit. The TSA’s screeners are also not an investigative force, and they operate under the legal authority of an Administrative Search, not a Criminal Search. The Fourth Amendment only addresses Criminal Searches, where are Administrative Searches are quite different.
At no point when a traveler crosses the border by car, train, boat or plane are they met by, or searched by the TSA.
Border enforcement is the domain of the Customs and Border Protection (CBP) who operates in conjunction with the Department of Agriculture, Immigrations and Customs Enforcement and other agencies … but not the TSA.
Secondly, a warrantless search at the border is legal under the Border Search Exception, which is an extension of the of the Tariff Act of July 4th 1789 and the July 31st 1789 creation of the United States Customs Service, by the First United States Congress and President George Washington.
The United States Customs Service, which was merged into the Department of Homeland Security and Customs and Border Protection on the 1st of March 2003, had the primary role of collecting customs duties at ports of entries, ensuring all items entering the United States were accounted for and properly taxed. This included the inspection of ledgers and checking them against actual items on board vessels. The United States Customs Service was never required to have a warrant to search persons or vessels entering the United States, as searches were not criminal, they were related to the collection of funds for the United States Government.
The ability of Customs and Border Protection to search people and documents entering the United States also comes from the Immigration and Naturalization Service, also merged into the creation of Customs and Border Protection on the 1st of March 2003. The Immigration and Naturalization Service was created on the 10th of June 1933, and its history dates back to the 1875 ruling by the U.S. Supreme Court that immigration was the responsibility of the Federal Government, rather than the duty of individual states, leading to the Immigration Act of 1891, when the Treasury Department created the Office of the Superintendent of Immigration.
The primary concern of the U.S. Congress in regards to immigration was the need to protect U.S. Citizens from losing jobs and income to immigrants, and transferred the Immigration Bureau from the Treasury to the Department of Commerce and Labor in 1903, ultimately creating the Immigration and Naturalization Service in 1933, who then fell under the Department of Labour and ultimately the Department of Justice in 1940.
So … how does any of this lead to Customs and Border Protection officers being able to search people and property entering the United States without a warrant? U.S. Immigrant Inspectors had the authority to check all personal documents and belongings entering the United States. Immigrant Inspectors could search for a hidden identity, forged or multiple travel documents, during World War I Immigrant Inspectors could search belongings to check for spies or ledgers indicating someone was funding the enemy.
When someone is in the border area, entering not just the United States, but any country, they have not yet been accepted into the country. Just because passport control has stamped your passport, you must still pass through a Customs area … often known to most travelers as the baggage carousel area in an airport. Within the area of a border Federal Agents have the ability to search you, question you, detain you, deport you, or all of the above.
The difference is in the current era people are not smuggling documents and ledgers in notebooks, folded pieces of paper and diaries, they are hiding it on laptops, mobile phones, tablets and flash storage. Customs and Immigrations the world over have the authority to stop and search the possessions of any one they believe is not being truthful with them, or who may be hiding something illegal or allowing them to avoid paying duties.
But there are bigger issues with changes to the authority of the U.S. Customs and Border Protection, since the right to search and seize is not actually a change, as has recently been upheld, upheld in by the 9th Circuit Court in 2006 and enacted by the United States Congress and President George Washington in 1789. What is the bigger issue?
The bigger issue is the expansion of the Border Search Exception Zone. On the 31st of December 2013 U.S. Federal District Judge Edward Korman ruled that a 100 miles radius inland from a United States Border falls under the Border Search Exception Zone.
With a 100 mile Border Search Exception Zone any Federal Agent charged with enforcing Title 19 of the United States Code, including not just the Customs and Border Protection, but also Immigrations and Customs Enforcement and member of the United States Coast Guard who are at the E-4 level or above, as well as other certain agencies may stop and check a person without a warrant if they have reason to believe a Customs or Immigrations issue may be present, without a warrant.
This 100 mile Border Search Exception Zone means that agents can act not just in New York City and Philadelphia, major port cities, but also Allentown, Pennsylvania. Not just San Francisco but also Modesto California. A 100 mile reach means anywhere you are in South Florida or the whole of New England; you could be stopped and searched without a warrant by a Federal Agent operating under Title 19 of the United States Code.
No longer are those in the United States safe from a warrantless search once outside of a known border area. No longer does the Fourth Amendment apply to certain Federal Agencies once we walk out of the airport, step off the dock, drive past the check point.
What is scary is that more than 195,000,000 people live within a 100 mile radius of the Border Search Exception Zone, roughly two-thirds of the population of the United States.
Why are we complaining about laptops being searches, when all Customs and Border Protection has done is modernize something they have had authorization to execute since the founding of the United States, when we should be complaining about the massive potential for intrusion into our lives by the expansion of the Border Search Exception Zone?
Hopefully this corrects The Kim Komando Show’s error and sheds a new light on the real issues at hand.