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Suspicionless Seizure of Electronic Devices within 100 miles of border OK'd

Discussion in 'The OT' started by phrelin, Feb 11, 2013.

  1. carl6

    carl6 Moderator Staff Member DBSTalk Club

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    Made me go look that up. First time I've heard of it.
     
  2. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Northern...
    Yes, but those of us who are old enough really did feel that creepy chill when "homeland" was proposed as part of a name for an American governmental agency. There is a direct correlation resulting from American propaganda during WWII - as I said, "German has a comparable word "heimatland" which was used in WWI, not in WWII by the Nazi's."

    To Nick and I and many others it just feels creepy because we were taught an association with evil for any use of terms that use the suffix "-land" in a nationalistic context.

    I'm not making this stuff up. Read these Wikipedia entries: Homeland, Fatherland, and Motherland.

    Some of this feeling does stem from the song that is the German National Anthem, Deutschlandlied, the third stanza of which is officially used today, but the first stanza of which was used during the Nazi era. It's unfair to German history, but see this YouTube video. And after WWII, we were then saddled with anti-Soviet propaganda associated with the concept of the Motherland, Russia.

    We have a whole 20th Century history beginning with WWI fighting Germans who did, in fact, use the term "heimatland" or "homeland" and continued through the Russian use of "motherland".

    For those of us who lived most of our lives in the 20th Century, that nationalistic association with terms like "homeland" raises direct, undeniable creepy, negative, irrational feelings deliberately created by our own government's efforts to stigmatize 20th Century enemies with an evil aura. Most significantly, the feelings are tied to "totalitarian" government abusing basic human rights.

    And lo and behold, we discover that our relatively new Department of Homeland Security has decided it's ok to set aside the Bill of Rights so that its agents can operate without those pesky restrictions within an area where most of us live and/or work.

    Keep in mind, this is not about an ICE agent in hot pursuit of someone carrying 10 pounds of heroine who appears to have crossed the border illegally. Let me again quote the legal discussion I quoted below:
    What's not clear here is that the "searches" for no particularly defensible reason then lead to "seizures" for no particularly defensible reason. And you don't get to run down to Town Hall and complain to your Town Council member about an abusive cop. These are federal agents protected by layers and layers of bureaucracy ultimately responsible to the President, not even subject to review by your nitwit Congress member.

    It's really too easy to dismiss our concerns about embracing our freedoms against a climate of fear. It may be that Godwin's law applies, but as I frequently say "We may be paranoid, but that doesn't mean they're not out to get us." With the best of intentions, of course.:rolleyes:
     
  3. sigma1914

    sigma1914 Well-Known Member DBSTalk Club

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    Two things...

    First, I was just trying to be funny.

    Second, having German heritage myself, including a Great Grandfather imprisoned in a concentration camp for speaking out publicly against Hitler, I definitely understand yours & Nick's correlation.
     
  4. Hoosier205

    Hoosier205 Active Member

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    Black helicopters are circling...
     
  5. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    We try to stay away from political discussion here. There are better places to discuss the constitution ... this site was built for discussing Direct Broadcast Satellite. When the off-topic discussions get too hot it is good to get back to the reason why this site was created.

    Much better. The ACLU map of everything 100 miles from the coastline, including the coastline of Lake Michigan, was a stretch. I would want to see "coastline" specifically in the law before agreeing to the ACLU map.

    It is also a major stretch to call those areas "constitution free". The law does not remove the entire constitution inside that zone. It is yet another over statement that drives people away from the issue at hand. People may agree with the premise of the argument, but do not want to be associated with those making the argument because of their overstatements.
     
  6. SayWhat?

    SayWhat? Know Nothing

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    That wouldn't matter anyways since 'coastline' in that concept really only refers to the oceans and the Gulf.
     
  7. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    My question would be could you get from the Atlantic Ocean to Chicago without going through customs? Once you leave the ocean one would be in the territorial waters of either the US or Canada ... and could easily cross that border as they made their way around to Chicago. At what point would inspection be required?

    A ship or boat in the Great Lakes could easily meet with another ship or boat ... including domestic boats crossing the lake or out on pleasure cruises. The shoreline is 1,638 miles. Is it adequately protected?

    Allowing inspections within 100 miles (or less) of the shoreline would help protect that shoreline ... which could easily be considered a 1,638 mile point of entry. I would not be surprised if it were included ... but I would want to see that in print from the proper authorities - NOT the ACLU.
     
  8. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Sorry. I overreacted.
    I agree with you about the ACLU. The law doesn't use "coastline", it says:
    Yes, ACLU news releases always tend to overstate - like the NRA they're looking for members and donations.

    The red lined map comes from The Pew Environmental Group because of a law proposed in the House of Representatives in 2011 which would exempt DHS from environmental rules within the so-called "reasonable distance." Some other federal lands were included in places like California, but here's that map which I consider more reliable along the Canadian Border including the Great Lakes region:

    [​IMG]

    I recognize this discussion is pushing the edge of political, and we need to be careful. But the issue came from a Wired article DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border linked in the original post. That article which has inspired a bit of a flurry around the web states:
    The focus is about personal electronics.

    I don't think any of us would have a problem with the concept of "border crossing" searches and even seizures within reason, though I don't see why "probable cause" shouldn't be the standard for taking someone's smart phone or laptop. I would even extend that latitude to include a "hot pursuit" of someone illegally crossing the boarder.

    But, to paraphrase the Second Amendment folks, they'll have to pry my smart phone, my iPads, my Kindle Fire, my computers, and my Dish Network receivers out of my cold dead hands here at my home which is about 20 miles from the Pacific coastline and well within that "reasonable distance."

    And yes, that's a silly overreaction, but an overreaction to the DHS office of Civil Rights and Civil Liberties saying DHS agents could actually try to take that stuff from me because the Fourth Amendment just doesn't apply to where most of us live and/or work.

    Unfortunately for me, I had an ex-employee (a cop) who went to work for the Border Patrol and who, if not now retired, probably is a U.S. Immigration and Customs Enforcement (ICE) higher echelon agent. Good guy, but he needed guidelines like the Fourth Amendment.

    The problem is that "within 100 air miles from any external boundary of the United States" definition in conjunction with the definition "the land boundaries and the territorial sea" looks innocuous on the page. But why not 1 mile, or even 5 miles? Why 100 miles???:eek2:
     
  9. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    If you are suspected in violating the borders then I suppose CBP will ask. Firmly.

    What I don't like about the original article is calling it suspicionless ... the CBP agents would not demand such a search unless there was a suspicion.

    "within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP."

    There is probably someplace in the US where 100 air miles is needed. Otherwise it is within the boundary fixed by the chief patrol agent for CBP.

    Here is another interpretation of the law:
    * CBP agents may search for noncitizens on any “railway car, aircraft, conveyance, or vehicle” that is “within a reasonable distance from any external boundary of the United States.”
    * Under federal regulations, “reasonable distance” means within 100 air miles from any external boundary of the United States.
    * In the context of roving border patrols within 100 miles of the border, CBP agents may pull over cars to question occupants about their citizenship or immigration status if they have “reasonable suspicion” of unlawful activity.
    * Standing alone, an occupant’s ethnicity is not sufficient to establish reasonable suspicion. Pulling over a vehicle solely on the basis of an occupant’s race is an “egregious” Fourth Amendment violation.
    * CBP agents may search for noncitizens on “private lands, but not dwellings” within 25 miles from the border. Thus, to enter a home, CBP officers must still obtain a judicially issued search warrant or the consent of the occupants.

    source
     
  10. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Northern...
    I admit, I am uncomfortable with broad interpretations of what the Fourth Amendment means. It says:
    The "reasonable suspicion" standard is a lesser standard than "probable cause" but is allowed under certain circumstances by the Supreme Court.

    Here we have a legal opinion summary titled Border Searches of Electronic Devices in which the "Background" portion begins with the statement:
    About the "Fourth Amendment" the opinion states:
    They have written "safeguards" for "managers and leadership" to avoid abuse of the conduct of "border searches without suspicion or warrant".

    But there is a rather long list of U.S. Supreme Court case law such as Almeida-Sanchez v. United States that says that except at the border searches without suspicion are illegal. Apparently the solution for that is to define the "border" as being 100 miles wide.

    IMHO no law enforcement entity gets to draw the "border" on a 3 inch wide map of the U.S. with a broad tipped marking pen and say everything inside the marking pen impression is "on the border."
     
  11. Dude111

    Dude111 An Awesome Dude

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    Yes .. People have been so brainwashed and conditioned ITS SCARY!!
     
  12. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    To invoke the 4th Amendment protection in any case (not just CBP policy) one would need to show that the specific search or seizure in question unreasonable.

    The courts have helped interpret in some cases ... helping to draw a line between reasonable and unreasonable. As future cases go forward perhaps the line will be better defined.
     
  13. SayWhat?

    SayWhat? Know Nothing

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    That's where you're wrong. Too many cops routinely do things they shouldn't and if you argue with them, you may well never get the chance to have your say in court -- if you get my drift.

    There has been an ever increasing number of instances where officers have demanded cell phones (sometimes forcefully) when they think someone is recording them with video. Most people were not suspected of having done anything wrong.

    http://assaultonthefirst.wordpress.com/
     
  14. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    There have also been plenty of citizens openly interfering in police business by approaching police activity to take pictures and video. Possession of a camera does not make one a member of the press ... and prohibiting someone from filming or recording an event does not automatically interfere with their right to free speech about said event.

    And on that note, CBP specifically allows recording of their officers from a reasonable distance, no closer than 10ft. (No distance closer than 10ft would be considered reasonable - in some cases reasonable would require the media to be much further away.)

    Illinois has a law where one cannot record audio of a person without their permission. There are few exceptions - but imagine not being able to record a friend speaking in a public place because one might record someone else's voice in the background. So far that law has not been ruled unconstitutional.
     
  15. MysteryMan

    MysteryMan Well-Known Member DBSTalk Club

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    As we all know since the days of VHS there's been warnings on every video about the penalties for piracy from the FBI. Because of global distrubution there are now warnings from various international law enforcement agencies as well. Last week I purchased the movies "Skyfall" and "The Bourne Legacy" on Blu-ray. They both contain a joint warning from both the FBI and Homeland Security Investigations. I can understand the FBI's involvement in video piracy but why the need for Homeland Security's involvement?
     
  16. Hoosier205

    Hoosier205 Active Member

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    The Homeland Security Investigations Bureau has various divisions, one of which is Immigration and Customs Enforcement.

     
  17. The Merg

    The Merg 1*

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    Just talked to a buddy of mine that used to be a Customs Agent. He stated that there is a little bit missing from what is posted so far. The law is to enable the searching of individuals that have just crossed the border. Basically, there are two parts. The subject has to be near the border, which as defined is within 100 miles. The other aspect is that there has to be mere suspicion that the subject has just crossed the border. The latter part is what is seeming to be omitted.

    - Merg
     
  18. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Northern...
    What individual agents do in practice depends a great deal on their own sense of right and wrong. The problem is the legal opinion guiding them which says (emphasis added):
    The country would come apart at the seams if all law enforcement was offered that "without suspicion" language.

    And though having just crossed the border sounds like it should be a standard, in fact they do look for "stuff" that came across the border even if the person who brought it went back across the border.

    Drugs are, of course, the most obvious issue. While the DEA under the DOJ is the lead agency for domestic enforcement of the Controlled Substances Act, it shares concurrent jurisdiction with the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE). So let's say DEA has a joint operation, because a "joint" operation gives them something important - the one agent they want is an ICE agent. He doesn't need any reasonable suspicion to search and seize.

    And if the FBI, which also is under the DOJ, is looking for illegal electronics, purses, or DVDs, let's bring an ICE agent along. She doesn't need any reasonable suspicion to search and seize.

    And ATF is another DOJ agency. Illegal trafficking in firearms just might need to be a joint operation with ICE.

    Let's just say that when there's a door is opened wide creating an opportunity for abuse, my brow furrows and eyes harden.
     
  19. The Merg

    The Merg 1*

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    According to my buddy, he stated that in the academy they were taught that "mere suspicion" was a legal term. They had to be able to articulate that a subject might have crossed the border. Of course, that standard is lower than probable cause or reasonable suspicion.

    - Merg
     
  20. SayWhat?

    SayWhat? Know Nothing

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    http://www.courthousenews.com/2013/03/08/55566.htm

    There are some twists and turns and exceptions in the rest of the story though.
     

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