FOREWORD: The following commentary is purely an expression of my opinion as an avid follower of issues that I think are important and worthy of analysis. But I hasten to point out that I am not a lawyer, nor do I have any “inside information” or affiliations of any kind with any persons or entities in this commentary; I simply am seeking to offer my thoughts on what I believe is a timely and important matter at hand, in the hopes that my observations may help generate some positive directions worth considering. — Protonius.
(April , 2011) – Thanks to a recent ruling by the Ninth Circuit Federal Court, U.S. Customs agents at border-crossings have now been further empowered – unConstitutionally, in my view – to seize, examine the contents of, and indefinitely (or for an extended period of time) confiscate, any digital-data storage-device in the traveler’s possession, without a warrant and without a reasonable basis of suspicion (except that the person is desiring entry into the United States) .
Because, with this judicial ruling, which adds “the force of law” as an additional support for operational procedures reportedly already in effect at U.S. Customs entry-points into the U.S., it would seem that in these locations the Fourth Amendment of the United States Constitution has now been officially declared to no longer apply.
Can they really do that?
I also recall reading, over the past couple of years, reports asserting that Customs makes a point of applying those “search and seizure rules” especially to American citizens attempting to return to the United States. If those assertions are true, I, as an American citizen, find this disparity very disconcerting. However, as I am currently unable to re-locate those informational sources, I cannot at present say if the above claim is fact or fiction. Perhaps some readers of this blog can offer some clarity on this point?
Nonetheless, as an American citizen – and even though, should I find myself traveling back to the U.S. after a sojourn abroad, “I have nothing to hide” – I believe that this Court’s ruling is not only Constitutionally improper but also a significant and unwarranted encroachment on my, and every American’s, Constitutional rights – and that what it portends for the character of our nation (outside of possibly “catching the bad guys”) — and our freedoms — is not encouraging.
There must be a better way to keep the nation safe — a way that also preserves our Constitutional rights!
The unConstitutional (in my opinion) creation of “Constitution-free zones” – such as a -mile-wide strip along (but within) the continental U.S. borders, and now, in effect, the U.S. Customs-controlled points of entry into the U.S.  – constitutes yet another insidious step toward – and a worrisome, and in my view unConstitutional, codification of – a “danger-point” – a condition which, in my view, all concerned Americans must start to realize (if they haven’t already done so) is a very real threat to the nation and to their freedom.
But wait, it gets better: it’s not only digital devices:
As I’ve read in other accounts of this trend in recent years, U.S. border-agents also have been tacitly given the authority – or at least they have exercised that authority – to seize and confiscate any data-storage “device” that anyone – especially (?) returning Americans – seeking to enter the U.S. may be carrying – and that even includes paper notebooks, writing-pads, and any other paperwork — even scraps of hand-written-notes that might be in the individual’s pockets. 
Agreed, U.S. Customs has a tremendously difficult job, especially in today’s terror-fear world, to “weed out” — and safeguard the nation from attack by — unsavory characters who, presumably, would like nothing better than to blow up airliners, spread a path of panic and destruction, bring our nation to its knees, and, ultimately, to murder us all. So, screening an estimated -million incoming passengers each year , and “getting it right”, cannot be an easy job. So I give Customs much credit for seeking to do its best to fulfill that mission.
Further, in fairness to Customs, I feel it only proper to note that Customs has an extensive online explanation and defense of its border-control operations, which is well worth reading. The URL is http://www.cbp.gov/xp/cgov/newsroom/congressional_test/laptop_searches.xml.
And I agree that is it vitally important to uncover dastardly plots, and prevent the “evil-doers” from gaining entry to the U.S., and that Customs must be empowered to do that as effectively as possible.
However, the problem arises – same as it has arisen in many other aspects of the national debate – when the methodology of providing those protections violates some of the core-principles and foundational law upon which this nation, and the nation’s very identity, rests.
Or, piece-by-piece, are we to continue to throw our fundamental freedoms – the very principles and foundations that have defined our nation and our way of life as being uniquely open and committed to the rights of the individual as established in the United States Constitution, its Amendments, and the Bill of Rights– out the window, as a way of somehow “protecting” those freedoms?
In terms of safeguarding our borders and our rights, isn’t there a better way?
Conversely, as we blindly trundle yet further down that darkening path — a dangerous pathway on which we’ve already embarked, thanks to such things as the Patriot Acts, the Military Commissions Act, massive Federal eavesdropping on our electronic communications, the “Obamacare” insurance-purchase mandate and the related establishment of the IRS as a political/financial-enforcement tool, to name a few — all these being steps that are increasingly “chipping away” at our rights in the name of some aspect of “security” — when should it be most appropriate to ask “Where does it end”?
And, for that matter, if we fail to ask that question — and to demand of ourselves an answer — does it end?
I, for one, am not so wealthy that I can afford, as a traveler, to let someone just confiscate my notebook computer. Nor do I harbor any unsavory desires or have any unsavory data stored on my computer.
But I also believe that I, as an American, have a Constitutional right to privacy and to be secure from unwarranted, warrantless, searches and seizures. And I think that a policy that permits Customs to warrantlessly override those rights is wrong and should be reversed.
But couple a policy of such warrantless search and seizure with, for example, the highly controversial treatment of airline passengers (and now beginning to extend to train-passengers and even to automobile passengers and pedestrians) by the TSA, and this complex of an increasing threat to our freedoms becomes significantly more clear.
Yes, agreed that “the bad guys” must be stopped. But isn’t there a better way — one that also respects and safeguards our Constitutional rights and freedoms?
Imagine this scenario:
Customs agent to a returning American citizen:
“Welcome to Checkpoint America! Now, give me your computer, your portable hard-drives, your flashdrives, your camera, your memory-cards, any photographs, any notations, any paperwork, that you may have in your possession, reveal to me any and all passwords or other such privacy-protections that you may have set-up for any of these items, and I will have some specialists examine them all, we may or may not eventually return any of these items to you, and, for your digital devices, we make no guarantees that if we return them to you that we will not have first extracted and copied any of your data or installed any clandestine eavesdropping-programs in those devices. Plus, if we determine, according to our own subjective standards, that any information that we find in any of your items is, in our view, questionable, please expect to promptly or eventually possibly be hauled before a Federal Court or a Special Investigative Body where you may or may not be given an opportunity to know what the charges against you are, or on what basis those charges were generated, or how to defend yourself against those unrevealed charges, and possibly you may or may not be entitled to be represented in those hearings by a lawyer who possibly will not be of your choosing, and most likely any effort to defend yourself will be quite costly to you, as you may thus find yourself to be a lone and rightless individual pitted against the unbridled and vast power of a Government agency replete with its own motivations and capabilities, such that your loss may well ultimately be a foregone conclusion. Oh, and by the way, if you do enter the U.S., and later wish to leave, our colleagues at the TSA checkpoints will have other pleasant surprises in store for you too. Just thought you’d like to know. Now, do you have anything to declare?”
Well, of course I’ve exaggerated somewhat; and Customs agents do have to be especially, and cleverly, vigilant. But the idea is there.
And you thought that leaving the U.S., which, these days, entails being subjected to arguably cancer-generating, privacy-invasive, full-body X-ray and millimeter-wave scans, or the possibly disease-transferring and generally unpleasant (and arguably unnecessary) sex-organ gropings by TSA agents, on the way out, was problematical enough. Just wait until, after an overseas trip, you want to return to “the Homeland”.
The trend started under George W. Bush. It continues, and apparently is becoming more intrusive, under Obama. And, it seems, the respective sessions of Congress have further empowered this trend, either by voting in favor of such developments or by condoning these developments by not seeking to reign them in.
Proper and caution-based inspection, yes; but based on violation of Constitutional rights, no!
What, after all, can be said of a nation that professes to honor its Constitution, when, by contrast, the nation’s Government and Judiciary somehow choose to permit the carving-up of the nation and its related territories (such as its Customs-checkpoints and that 100-mile land-strip along the nation’s continental boundaries) into “Constitution-free zones”?
Is it beyond reason to view this recent Federal Circuit Court ruling as yet another step toward similar freedom–diminishing actions to come?
President Harry Truman had a slogan mounted on his desk: “The Buck Stops Here!”
Yet now, with these actions, it seems that we’re being faced with a new slogan: “The principles inherent in the U.S. Constitution, and which were designed to protect your own personal freedoms and rights, stop here!”
Is that really what we want?
One has only to study the lessons of history to see where this trend of “legalizing” of the ripping-away of the American People’s freedoms may lead.
Perhaps it’s time that we follow the admonition of “Howard Beale”, the fictional network news commentator in the film “Network” , in which he declared that it is time to “get mad as hell” and decide for ourselves that “We’re not going to take this anymore!”
And use every legal, nonviolent, political tool possible, to force a reversal of this dangerous freedom-destroying trend, and work to put respect for the Constitution and the Rights of the Individual back on track where they belong!
I remember when Ronald Reagan was President. Regardless of one’s views about his Presidency, one thing about Reagan always seemed to stand out: He consistently expressed a positive personal view about the nation, a personal enthusiasm toward generating a better time to come.
It was a view that came across especially forcefully — and upliftingly — as he proudly declared: “America is BACK!”.
It is time that we press hard to restore our Constitutional rights. It is time that we BRING AMERICA BACK!
– Protonius, 9 April 2011.
 http://news.yahoo.com/s/livescience/20110407/sc_livescience/laptopsandotherelectronicsmaybeseizedonentrytous#mwpphu-container and http://www.networkworld.com/news/2011/040611-us-can-conduct-offsite-searches.html