Dept. of Homeland Security: Laptops, Phones Can Be Searched Based on Hunches

First we have Verizon collecting our phone conversations and the NSA collected data of all types, and now we have this story. It seems that our 4th amendment protections from illegal searches and seizures of our property is 100% completely null and void now.

WASHINGTON (CBSDC/AP) — U.S. border agents should continue to be allowed to search a traveler’s laptop, cellphone or other electronic device and keep copies of any data on them based on no more than a hunch, according to an internal Homeland Security Department study. It contends limiting such searches would prevent the U.S. from detecting child pornographers or terrorists and expose the government to lawsuits.

The 23-page report, obtained by The Associated Press and the American Civil Liberties Union under the U.S. Freedom of Information Act, provides a rare glimpse of the Obama administration’s thinking on the long-standing but controversial practice of border agents and immigration officers searching and in some cases holding for weeks or months the digital devices of anyone trying to enter the U.S.

Since his election, President Barack Obama has taken an expansive view of legal authorities in the name of national security, asserting that he can order the deaths of U.S. citizens abroad who are suspected of terrorism without involvement by courts, investigate reporters as criminals and — in this case — read and copy the contents of computers carried by U.S. travelers without a good reason to suspect wrongdoing.

Let me emphasize the last part of the above quote:

read and copy the contents of computers carried by U.S. travelers without a good reason to suspect wrongdoing

So now we are all, each and every one of us, suspected of some form of wrong doing at all times.

LINK

This flies in the face of the long standing "exclusionary rule" enacted by the USSC through the years that a hunch is not sufficient evidence to present probable cause. One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial.

The Court adopted the exclusionary rule in 1914 in Weeks v. United States, 232 U.S. 383, prior to which all evidence, no matter how seized, could be admitted in court. In 1939 the USSC, in Nardone v. United States, 308 U.S. 338, ruled that tips resulting from illegally obtained evidence are also inadmissible in trials as "fruit of the poisonous tree".

The USSC ruled in Terry v. Ohio 392 U.S. 1 (1968), that law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop.

The fact that the USSC ruled in TERRY that a vague hunch is not sufficient enough to establish probable cause, and given that this ruling has not been overturned then the actions of DHS on this matter fly in the face of the standing rule of law in this country and the Constitutionally declared protections of the Fourth Amendment.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable. I would dare say that everyone expects that the information one has on their own personal laptops and phones to be private since that property is the property of a private citizen and is not available to the general public for their viewing at anytime. I would also say that this expectation is reasonable for the above cited reason that it is their own personal and private property that is not available to the public.

This is another wonderful example of malfeasance at the hands of government that is prescribed with the duty of "upholding and defending the Constitution". Instead of upholding the Constitution and remaining within the limitations set forth within, they are deliberately and maliciously trampling the very documents and rights they took an oath to protect.

They are trying to use the excuse of catching kiddy porno's to justify their actions when in all reality the intent of this action by DHS only serves to further intrude upon our rights as citizens. Any person who is willing to sacrifice a small amount of liberty for a small amount of false government security deserves neither.

reply to post by Nucleardiver


The answer here is simple - they do it because they know we are powerless to stop it.

Until we rise up as a group and say "no", it will continue.

I may be wrong, but I believe this procedure only applies to individuals crossing the border. The OP seems vague to the details surrounding where these practices can be implimented.

The U.S. has a history of a exclusionary zone that extends inwards from its geographic borders and hubs of international transportation.

Here is an interesting and scary article:

Are You Living in a Fourth Amendment Exclusion Zone?

t all started in 2008, when the DHS declared that certain ‘border control agents’ could search the electronic belongings of individuals without suspicion — let alone a warrant. Bypassing the rights provided by the Constitutional to every citizen of the United States, the DHS immediately came under fire for the policy. The response? The DHS promised to have the policy reviewed within 120 days. The catch? The review was done two years late and by their own review panel known as the Civil Liberties Impact division.

As you can see in the image below provided by the ACLU which highlights the 100 mile radius established by the ridiculous DHS policy, the 197 million individuals living on this outlandishly-extensive ‘border’ accounts for nearly 2/3 of the entire nation’s population. From Washington D.C. to the entire state of Florida (thanks to its coastal positioning), the massive ‘border’ suffocates most of the major cities within the US — and most likely your home.

The level of infringement within this exclusion zone is quite concerning. Probably best not to take any incriminate evidence with you on your international trips.

Gee,I feel so much safer now that I know big brother is watching everything everyone is doing, saying, and soon everything they think.

It'll be a bright future for all of us when we finally learn to do as told with no questions.

But, until then. You dirty rotten low down good for nothing.........stupid ATS rules!

can this be confirmed?

Originally posted by Nucleardiver
~snip~

So now we are all, each and every one of us, suspected of some form of wrong doing at all times.

~snip~

And they'd be right to suspect that, because the way they have it set up now there's so many idiotic laws on the books that I'm sure very few of us go a single day without breaking some of them, probably without even knowing it.

reply to post by tjack


You are right and that's why we see the passage of hundreds if not thousands of laws every year. For every new law that is passed a new class of criminal is created and by doing so TPTB can flex their control over more people through fines, probations, and imprisonment.

It is all about control.

Sure, now it will be confined to those crossing the borders. Mission creep will soon (a year? three?) expand these tactics to all travelers. Then to people in cars, or using free wireless at libraries. then .....

Until a great many congressmen and Senators start growing a backbone (they are now afraid to speak out just in case something happens and they can be blamed in the next election cycle) and caring about the U.S. constitution and all that it has shared with the world, mission creep will continue with no end in plain sight.

The key word you used in your opening thread was "illegal". They can do what they want in the guise of "national security" and the "Patroit Act"...that negates them needing anything other than a suspicion. In those cases...we have no rights that protect us from those.