Stockton’s Mayor At The Border

Did they ask for a quick look-see? Not from the description given by the mayor of Stockton, California, Anthony Silva, who was returning from a mayor conference in China to the “land of the free.”

Upon his return home on Monday, Silva was briefly detained by Department of Homeland Security agents and had his belongings searched, he said.

“A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said.

Warrant? At the border? Apparently, no one told Silva that border searches aren’t subject to the Fourth Amendment.  Then again, they similarly aren’t subject to seizure of a person, to refuse to allow someone to leave, absent their consent to seizure of computers and cell phone, or disclosure of passwords.

And then there’s the Cotterman issue, as the 9th Circuit has held that the quick look at the border is one thing, but seizure for a forensic search is entirely different. While the border guards get an inspection for free, seizure for a deeper search requires reasonable suspicion.  Not a warrant, mind you, but at least a good reason.

So what was Silva up to?  He, of course, says nothing.

Silva went on to say that he is “confident that any forensic search of my personal devices will never ever show illegal or inappropriate activities of any sort.”

“Never ever” sounds far more serious than just plain old “never,” so he must be very confident.  And yet, in the absence of reasonable suspicion, the seizure would be unlawful.  So where are the fireworks?

The mayor said the agents told him confiscating property from travelers at the airport was “in fact routine and not unusual,” and promised to return the items within a few days.

After all, the agents said so, and they wouldn’t lie, right?

For his part, Silva said he’s “happy to cooperate and comply with these inspection procedures if they are in fact routine and legal.”

Whether the seizures are lawful is one question. But “routine” presents a separate issue.  If the DHS agents have reasonable suspicion to believe that Silva has plans to bomb the capital, or videos of kiddie porn, on his computer, then the seizure would be lawful. Since the government isn’t talking, wrapping itself up in the usual silly tripe to deflect having to explain themselves, there is no indication what heinous crime Silva is believed to have committed.

Yet, their claiming that seizures are “routine” raises other questions.  It may be that they’re just lying to Silva to calm him down and obtain his cooperation, under the likely accurate assessment that Silva, like so many politicians, has no clue what the law is.  Feed ’em a little bullshit and they happily hand over their rights.

But as Masnick points out at Techdirt, the line that it’s “routine” isn’t quite accurate:

To some extent what the DHS told him is true. It’s not that unusual, but it’s not that common either. But forcing him to turn over the passwords is unusual, and not standard practice. Besides, courts have been growing increasingly less impressed with Homeland Security’s willingness to ignore the Constitution at the border.

So where are the fireworks?  Where is the outrage? When will Silva’s rights be vindicated?  Don’t hold your breath. While Silva enjoyed a moment of good old American political noise, that’s pretty much all he’s going to get.

“I think the American people should be extremely concerned about their personal rights and privacy,” he said. “As I was being searched at the airport, there was a Latino couple to my left, and an Asian couple to my right also being aggressively searched. I briefly had to remind myself that this was not North Korea or Nazi Germany. This is the land of the Free.”

This could be the “land of the Free,” Mr. Mayor, if only guys like you learned to distinguish the bullshit from the truth, and learned how to say “no” to the nice agents of Homeland Security.

It would have made for a spectacular case, since we rarely get a mayor returning from a mayor conference in China (notice that they didn’t seize your computers for a deep forensic search going into China?) raising these issues at the border?

The fact remains that when pushed by agents, you gave up your password. You collapsed like a cheap suit, wrapped yourself in the excuse of “routine and legal,” and walked away.  If you want to challenge the violation of your “personal rights and privacy,” then you need to defend them.  Instead, you handed them over.

It’s conceivable that Silva could bring suit for the return of his computers, challenging the absence of reasonable suspicion for seizure.  It’s conceivable that he could argue that he only gave up his password upon coercion, based upon the belief that he was physically seized and would not be released unless and until he did.

But that whole “land of the Free” bit only pays if one takes a stand to protect and defend constitutional rights. The “routine” is that they’re protected through the individual least admired for their conduct, the guy whose computer has some nasty stuff on it, or the guy who the government has sufficient reason to believe was up to no good.  Only in the rarest of instances do we have a pristine individual whose rights were trampled.

So will Silva take a stand, despite his having caved in when a DHS agent gave him the stink eye and told him the nonsense usually saved for tourists?  Absent the willingness to stand up for one’s “personal rights and privacy,” there is no test of whether these seizures are lawful.  There’s a price for living in the “land of the Free,” Mayor Silva.  Are you willing to pay it?

12 thoughts on “Stockton’s Mayor At The Border

  1. Mort

    So will Silva take a stand, despite his having caved in when a DHS agent gave him the stink eye and told him the nonsense usually saved for tourists?

    No. Next question, please.

  2. paul

    Turns out there is an ongoing investigation involving him which is unfortunate because I would really like my rights no matter my geographical distance to a border. But this kind of overcomes cotterman because thats reasonable suspicion.

    1. SHG Post author

      Until someone with a name has the guts to say so, the anon sources excuse doesn’t wash.

      “It was not a random stop,” one source said of Silva’s detention by federal agents as he returned to the United States after a trip with other mayors to China. Both sources spoke on the condition of anonymity.

      1. paul

        True the anon sources are weak tea. Should that be the case though, and the investigation is not related to his trip to china, the implications are far more damning as a pretext for an unconstitutional search. Its not like warrants are exactly hard to get. I don’t know if I have digressed too much. If so, I apologize.

        1. SHG Post author

          Not at all. The problem with this story (if there’s a problem) is the dearth of background info. Was this the perfect storm to challenge the unlawful seizures, or is Silva dirty and we don’t know it yet. As you say, it makes a big difference.

  3. John Barleycorn

    I think from now on I am going to stick a 64 GB thumb drive up my ass plum full of cartoons from the 50’s and 60’s, my entire Zappa collectiion, and a half hour or so of some French porn subtiltled in Norwegian from the early 80’s every time I re-enter the homeland.

    Password suggestions? (Easy enough so they can crack the thumb drive from my crack in a few days).

    P.S. Always a joy to read your “off the reservation” posts esteemed one. You should really consider tweaking your news feed. Your back needs some rest from time to time from the normal lifting.

    1. SHG Post author

      That’s a much more complicated question than you may realize. The short answer is probably, but it only comes into play if one refuses, and then fights it out on the back end when the government asks the judge to order a person to divulge his password. If you give it up willingly, then it doesn’t matter.

  4. Dragoness Eclectic

    Buckling on his 4th, 5th and 1st Amendment rights? Bad on him.

    However, if they don’t have a quarantine for electronic devices that have been to China, they should. Quarantine and massive virus/malware scrub. China has a vested interest in exporting all kinds of interesting espionage malware to the PDAs and computers of persons of interest in the U.S. I bet top city politicians are at least as interesting to Chinese intelligence as people with access to military computers. I wonder if that’s what was really going on–a check for nasty digital warez that may have been added to the mayor’s devices without his knowledge.

Comments are closed.