Total surveillance society

The government claims the right to read everything

We knew this administration didn’t like the Second Amendment. We knew it has reservations about the First Amendment, and now we learn that it has dispensed with the Fourth Amendment. The only amendment the administration really likes is the Fifth. The more we learn about the government’s extraordinary ability to read emails, listen to telephone calls and track individual movements, the more frightened everyone should be. New code names, such as Prism, the National Security Agency program that directly mines all information from Gmail, Facebook and other services, have replaced Echelon and Carnivore as scare words.

The government has clearly set out to create a total surveillance society, something that in a rational world would be prevented by the Fourth Amendment protections against unreasonable searches. But disclosures of the administration’s telephone-tapping schemes, frightening as they are, have overshadowed something even worse, the creation of zones within the United States where the Fourth Amendment specifically does not apply.

This is not “hype,” as President Obama called the surveillance disclosures on Friday. They’re real. Agents of the Department of Homeland Security (DHS) have been seizing and copying the contents of laptops, iPhones, iPads and other electronic devices from American citizens coming from or traveling to international destinations based on nothing more than the whim of agents who have no probable cause to believe that any crime has been committed.

In February, the department’s Office of Civil Rights and Civil Liberties, which is supposed to prevent abuses, issued a summary paper that purported to justify the ability of agents to “conduct border searches without suspicion or warrant,” including searches of personal laptops and smartphones. The American Civil Liberties Union then asked the pertinent question: How do agents decide whose laptop to search?

The department responded last week with a memo outlining the legal rationale for “suspicionless” searches, with the familiar Obama administration explanation: It’s a secret, and it has to remain a secret. Four pages dedicated to border-search authority under the Fourth Amendment and a page of First Amendment material were blacked out. The document concluded: “In accordance with established case law, officers may, as a matter of both constitutional law and sound policy, search electronic devices at the border without reasonable suspicion of wrongdoing.”

It’s important to note that the word “border” isn’t limited to an actual border. It’s a term that arbitrarily applies to any place within 100 miles of the actual border, and includes international airports. These have become the new Constitution-free zones, and there’s no reason why the government won’t expand this beyond 100 miles when it becomes convenient. In 2010, a half-million travelers were required to endure secondary screening and groping sessions at airports, and in 383 cases, electronic devices were searched without cause in these zones.

This is done in the usual name of protecting us, yet there’s good reason to doubt that. The highly trained agents who predict crime by hunch often can’t see actual criminals stealing under their noses. Agents of the Transportation Security Administration in Orlando, Fla., were caught stealing iPads from travelers, not by the keen “sixth sense” of DHS agents but by investigators of ABC News. Two TSA airport screeners in New York admitted they stole $160,000 worth of goods from passengers.

Perhaps the latest outcry over the government’s privacy invasions will do some good. In March, the 9th U.S. Circuit Court of Appeals ruled that a revised “reasonable suspicion” standard should apply at the border. “International travelers certainly expect that their property will be searched at the border,” the court reasoned. “What they do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days (or perhaps weeks or even months, depending on how long the search takes).”

Given the other methods of data collection available to federal agents, airport searches may become less important, but the Fourth Amendment, effectively stripped out by the government, must be restored to the Constitution. If not, it won’t be long before everyone falls into the definition of a Constitution-free zone.