Sunday, January 26, 2014

Living in a Constitution-Free Zone

In case you missed it, in a rare New Years' Day ruling, Federal Judge Edward Korman declared that the "Constitution-Free Zone", 100 miles from any border of the US, including the oceans and gulf, was legal.  Combining the two linked articles, with the first paragraph by syndicated radio host Kim Komando:
He had a case before him involving a U.S. citizen – a Ph.D. student at McGill University in Montreal – who had his computer confiscated while returning to the States. The judge ruled, sweepingly, that, yes, the federal government had a right to confiscate laptops at the border without probable cause.
The ACLU originally challenged the administration's policy, which can be applied anywhere within 100 miles of the border, after U.S. Customs agents stopped student Pascal Abidor on a train traveling from Canada to New York. After noticing Abidor had two passports -- not uncommon for journalists and those with dual citizenship -- agents asked to see his laptop. Since Abidor was a student of Middle Eastern affairs, his computer contained photos of political rallies held by Hamas and Hezbollah, known terrorist groups.

"I explained to the immigration officer that the reason I had these photos was this was my research," said Abidor, a U.S. citizen. "I determined they looked at my personal photos and personal chats with my girlfriend. I knew I needed help."
This is a remarkable case in that it joins together the incredibly liberal ACLU with the strong libertarian right, and a milestone ruling in the favor of liberty comes from the 9th circus court.  In other words, everyone except the doctrinaire tyrants, like judge Korman, thinks discarding the fourth amendment - already bleeding out from the TSA and so many other infringements - is a bad idea.  The constitution is essentially dead.  I haven't heard of anyone having soldiers quartered in their houses, but I can't say I'd be surprised to hear that today.
But in March, a panel of three judges in the 9th Circuit Court of Appeals in California said the government needs "reasonable suspicion" to search a traveler's personal electronic device. When two federal courts interpret a law differently, the U.S. Supreme Court often resolves the conflict.
The ACLU says nearly 2/3 of the US population lives within the constitution-free zone.  I certainly do, along with every person in Florida.  All of the major urban centers of the country: New York, Chicago, El Lay, San Francisco, Seattle, DC, Tucson... virtually every major city, virtually everyone is inside this zone.  I can't call it WROL because it's fully legal - in the same sense that everything the Nazis did was fully legal under their legal system.

Kim Komando hosts a syndicated radio program of computer tips and advice, so you can expect she'll have a deeply personal, gut reaction to the issue of searching digital information.  Her article is powerfully written, almost poetic about the shear violation of having your laptop or cellphone taken and examined, and you should go RTWT.  To pull a couple of paragraphs:
The taking of a laptop today is a striking act of confiscation almost without an equivalent 25 years ago. Back then, it would have taken a team of FBI agents days if not weeks to so comprehensively vacuum up a single American's health, business, financial and personal information, not to mention that of so many of his or her friends, family members, and business associates.

Today, Nosy McPatterson, your local TSA staffer, or Roscoe the border agent who got up on the wrong side of the bed that morning, can accomplish the same feat, and in an instant. They can paw through your photos and email during their lunch hour. And anyone present with a 13-year-old's understanding of computing can easily and unnoticeably make a quick copy of it onto a device that slips easily into a pants pocket.
As I always say, it's not that bad - it's worse.  In addition to the 100 mile constitution free zone, police are routinely grabbing cellphones during traffic stops for anything, and searching the content on the phone (often with automated cracking devices) without a warrant.  The supreme court has decided to review two cases related to this, but it continues unabated.  According to this lawyer, in United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008), the court ruled that this was just “general rummaging in order to discover incriminating evidence.” and that rummaging was forbidden.  Other courts have ruled the other way.  The original police justification for starting to look at phones was that they had hands free cellphone laws, so they had the right to look at the time of your last call to determine if you used it while driving - admitting to breaking the law. 

Cellebrite, the maker of those "Forensic Extraction Devices", brags they can suck your history out of a phone, iPad, Tom Tom GPS, and more.  It cracks password protected devices, so don't expect that to help you much.  With phones and tablets merging into "phablets", and both replacing laptops, it's effectively performing the same data collection that started the case which ended on Judge Korman's bench.  It has the effect of making the entire country a constitution-free zone.  All you need to do is be stopped in traffic - seat belt check? sobriety check? - and have a something electronic with you.  After that it's simply a question of whether they want to charge you with something.   With the average person committing three felonies every day, chances are they can find something in your history they don't like. 


  1. I live six miles from the Pacific ocean. The EEZ, Exclusive Economic Zone of the USA is 200 miles west of the physical coast of such. Do Not come to my home without my permission to enter. You will likely not leave. I don't care who you are.

    1. My sentiments exactly. And,,,I will shoot first. I don't care who you are. The "Keep Out" sign means exactly that.

  2. Soldiers quartered in our homes? That's so 18th century. Nowadays we have cellphones, laptops, TVs, thermostats, appliances and smart meters available for spying 24/7.

  3. "I haven't heard of anyone having soldiers quartered in their houses, but I can't say I'd be surprised to hear that today."

    I agree with the anon above this comment. I feel that the Third Amendment wasn't simply about the undue burden of feeding and sheltering soldiers, but having your most private places under government surveillance constantly.

    With the ability of the NSA's to tap pretty much everything that is connected to a data network (and some that aren't-- it seems that today we purchase our "soldier's" at BestBuy and bring them home to "quarter".

  4. OK, so one, or both, of these cases makes it to the Supremes, and by lucky happenstance they rule in favor of the Constitution and liberty.

    Then what? A quote attributed to Andrew Jackson references this: "John Marshall has made his decision, now let him enforce it!" Whether that quote is accurate or not, the issue is not so much WROL as it is what "L" means, and whether that "L" actually constrains action on the part of government authority.

    I'm more than a little concerned that a tipping point approaches.

  5. Does this also mean that the 16th amendment is no longer enforcable??

  6. In a sense, it has never been "enforceable". The IRS has relied on "voluntary compliance" and the withholding system, supplemented by targeted audits, to make the system work. But my sense of things is that people are coming to the point where they don't regard the tax system as legitimate. In part this is because of all the loopholes and special interest exceptions, but in part it's because the government simply spends whatever it pleases without seeming to be accountable to anyone who is actually forking over the taxes. We've reached the tipping point where nobody pays taxes unless there's no way to avoid it. Salaried people will pay taxes. Anyone working in a cash-based section of the economy will have the opportunity to skim off a lot of that cash, and not pay tax on it. Illegals don't pay tax at all.

    The upshot is that that the tax system has become unstable, at least so far as the income tax is concerned. We used to think that there was some kind of moral basis for paying our taxes. No more.