When Homeland Security Czar Michael Chertoff explained the need to search laptop computers to preserve the safety and security of the union, it appeared to reflect the government’s venture into hi-tech snooping by capitalizing on the antiquated rationale for unlimited border searches. But based upon a 10-1 decision out of the 9th Circuit in its en banc rehearing of its decision to uphold the search, the problems runs deeper.
From the San Francisco Chronicle, the court held that agents could read personal letters during a border search without any basis or evidence of wrongdoing.
The court majority noted that an international airport is considered the equivalent of a national border and said airport officers need no evidence of wrongdoing before conducting searches, as long as they are not “unreasonably intrusive.”
In upholding the initial search, the court noted that inspectors were entitled to conduct random searches of the packages and said they were not obliged to “disregard evidence of other unlawful activity.”
This is yet another example of the remembering the rubric while forgetting the rationale. The reason that border searches were denied any protection was not because constitutional rights were no longer inherently worthy, but because there was a need to prevent avoidance of untaxed goods from entering the country and disease-ridden things (whether people, animals or plants) from infesting our great plains.
But this rationale came at an earlier, more simple age. The border search was not intended as a general crime search substitute, simply because of the lack of expectation of privacy. Yet that’s where it’s gone. And now we’re coming full circle, from the hidden porn on laptops to the content of personal letters. Certainly, there is no border protection purpose to be found in private letters, lest someone attempt to attack another by threat of a paper cut.
Only one judge stood up against this holding, Chief Judge Alex Kozinski.
In dissent, Chief Judge Alex Kozinski said the court’s rationale was dangerous, even though Seljan got what he deserved. By allowing agents to read the letter without a warrant or evidence of wrongdoing, he said, the ruling gives them “a green light … to go on fishing expeditions through all private papers and electronic documents that are sent or carried across our national borders.”
At Met News, there is a lengthier description of the dissent:
Kozinski argued in dissent that the search violated the Fourth Amendment’s guarantee of the “right of the people to be secure in their…papers.” While the court’s “reluctance to step between Mr. Seljan and his well-merited punishment is understandable,” the chief judge wrote, “this result comes at a high price.”
The majority, he said, was turning what the court has previously described as a “narrow” Fourth Amendment exception into “a gaping hole” that would allow “every e-mail, every diary, every laptop that crosses the border” to be inspected and read “without a warrant or even founded suspicion.”
Kozinski cited the infamous “Wilkes affair,” in which private papers were seized under general warrant in 1760s England in order to build a case of seditious libel against a leader of the political opposition. The actions led to a series of decisions holding that English common law did not permit such seizures.
“We sell this birthright very cheaply today,” the jurist wrote.
Perhaps Judge Kozinski has a greater appreciation of the privacy of one’s papers and effects, having been on the receiving end of disclosure of some personal photographs. There’s nothing like public disclosure of highly personal things to enlighten one to the finer points of privacy.
Regardless of how Judge Kozinski came to this conclusion, his lone voice in dissent is worthy of heed. We’ve sold off many of our birthrights lately, and it’s going to be awfully hard to get them back.