A 'constitution-free' zone

Judge rules: Most of U.S. has no protection from search by DHS

Digital Journal,

1 January, 2014

A federal court Judge ruled that the so-called “constitution exemption zone” is legal. The zone extends 100 miles from any U.S. border, which covers roughly two-thirds of citizens.

The ruling stems from an American Civil Liberties Union challenge to the practice three years ago.

U.S. District Judge Edward Korman in New York issued the decision that upholds the federal government policy referred to as the “border exemption” for the Fourth Amendment protections of the Constitution. The exemption is typically used to search electronic devices without explainable cause or a warrant. The ruling allows the policy to continue without restriction.

American Civil LIberties Union

The ACLU generated this map of areas governed by the border exemption.

The judge ruled:

Laptops have only come into widespread use in the twenty-first century. Prior to that time, lawyers, photographers, and scholars managed to travel overseas and consult with clients, take photographs, and conduct scholarly research. No one ever suggested the possibility of a border search had a chilling effect on his or her First Amendment rights. While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.

While Korman’s ruling was specific to situations that occur when crossing a border, the policy is not restricted simply to border crossings, but covers a strip of land that extends 100 miles from any border or coastline. This strip of land includes the residences of over 197 million U.S. citizens. Most major cities including Miami, Boston, New York, Los Angeles, Philadelphia, New Orleans, and Seattle are completely inside the zone.

Catherine Crump, the ACLU attorney who argued the case, said

We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing

The outcome of this case may weigh on efforts to end a similar policy of subjecting innocent travelers to vaginal and anal cavity searches. The victim of one of these searches was reportedly subjected to six hours of probing against her will and then billed $5,000 for the examinations that yielded no contraband. These searches are conducted under the same policy as the unjustified searches of electronic devices that was just upheld by Korman.

Laptops have only come into widespread use in the twenty-first century. Prior to that time, lawyers, photographers, and scholars managed to travel overseas and consult with clients, take photographs, and conduct scholarly research. No one ever suggested the possibility of a border search had a chilling effect on his or her First Amendment rights. While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.

While Korman’s ruling was specific to situations that occur when crossing a border, the policy is not restricted simply to border crossings, but covers a strip of land that extends 100 miles from any border or coastline. This strip of land includes the residences of over 197 million U.S. citizens. Most major cities including Miami, Boston, New York, Los Angeles, Philadelphia, New Orleans, and Seattle are completely inside the zone.

Catherine Crump, the ACLU attorney who argued the case, said

We're disappointed in today's decision, which allows the government to conduct intrusive searches of Americans' laptops and other electronics at the border without any suspicion that those devices contain evidence of wrongdoing

The outcome of this case may weigh on efforts to end a similar policy of subjecting innocent travelers to vaginal and anal cavity searches. The victim of one of these searches was reportedly subjected to six hours of probing against her will and then billed $5,000 for the examinations that yielded no contraband. These searches are conducted under the same policy as the unjustified searches of electronic devices that was just upheld by Korman.