© Josh Sager – January 2014
Last week, Judge Edward Korman—a Reagan appointee to the United States District Court for the Eastern District of New York—confirmed that federal authorities can search the electronic devices of any American within 100 miles of any border without the need to obtain a warrant.
The Abidor et al v. Napolitano et al case, which Judge Korman just dismissed in favor of the government, focused upon warrantless searches of laptops without suspicion at the border. In this case, an American student was stopped at the border after traveling to several Middle Eastern countries and was forced to unlock/surrender his laptop computer. Despite the fact that nothing illegal was found on the computer, it still took nearly two weeks for Abidor to recover his laptop (which held the only copy of his thesis paper).
While dismissing this case, Judge Korman conceded to the government’s assertion that there is a 100 miles zone inland from every international border where federal authorities to have the ability to search and seize digital devices without warrant or cause—his only caveat to this concession was that “if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”
In short, if you live in or are traveling through the orange-shaded portion of this map, it would be legal for federal authorities to stop you, force you to give them the password for your laptop, and seize your files—no warrant would be needed and there would be no certainty that you would ever recover your files or your digital devices.
Due to the geography of the United States, the 100-mile exemption zone for searches has the potential to circumvent the 4th Amendment protections for a significant majority of the American people In addition to the fact that many major population centers lie within 100 miles of the coast, several states are entirely covered by this zone (ex. Florida, Maine, Vermont, and Connecticut).
The Border Exemption
Federal authorities have the ability to search people who wish to enter the United States—this authority is written into federal law and has been confirmed by the Supreme Court.
Under the provisions of federal law which outline the powers of border officials (8 USC § 1357), federal agents have the power to perform warrantless searches within a “reasonable distance” of the US border. The term “reasonable distance” is defined under Attorney General’s regulation 8 CFR § 287.1 as “within 100 air miles from any external boundary of the United States.”
Several Supreme Court cases (ex. Almeida-Sanchez v. US and US v. Montoya De Hernandez) have upheld this “border exemption” to the 4th Amendment as a function of national sovereignty. In 1979, the Supreme Court decision Torres v. Puerto Rico included a succinct explanation of the justification for the border exemption:
“The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.”
In 2008, this exemption zone was expanded by the Supreme Court to include the search of digital devices in addition to physical baggage by the US v. Arnold ruling.
When past case law is synthesized with current federal law, the result is the federal government asserting the right to search the digital devices and vehicles of any American within 100 miles of a border, without having to get a warrant or show reasonable suspicion that the person in question is committing a crime.
Conclusion
Judge Korman’s ruling in Abidor v. Napolitano et al is just the most recent manifestation of creep in the federal government’s ability to circumvent constitutional protections. By classifying entire states and cities as border zones, federal authorities are able to get around the 4th Amendment in a way that would likely horrify the authors of the Constitution—after all, at the time of this country’s founding, almost everybody lived along the coasts and this 100-mile “exemption zone.”
The search and seizure powers that the government is asserting (and the courts are confirming) create the perfect situation for abuse. It is unlikely that large numbers of random people will have their digital devices seized by the government, but it is highly likely that this power will be used to target those who challenge the status quo.
Theoretically, the federal government could seize the digital devices and data of a reporter like Glenn Greenwald if he was visiting a coastal city like New York for a conference with other reporters or a meeting with sources. Federal agents could stop Greenwald in his hotel lobby, take his computer, and mine it for information on sources, contacts, and future stories. Because of the border exemption, neither the 4th Amendment protection from unreasonable searches and seizures, nor the 1st Amendment protections on the press would help Greenwald.
In addition to threatening journalist, these searches and seizures are a threat to political activists (ex. people protesting corruption), academics who have ideas that are not popular to those in power (ex. Professor Juan Cole during the War on Iraq) and even political candidates who threaten the already powerful (Joseph McCarthy would have loved these searches).
Unless the courts side with civil rights groups over the national security apparatus, we will wake up one day and face the fact that our constitutional protections are just words on a page that no longer have any real meaning. Today, the government may claim that the 4th Amendment must be circumvented in these zones for security and expedience, but what about tomorrow? If it is okay to curtail the 4th Amendment in these zones, then what is stopping the same argument being used to attack the 5th, 6th and 8th Amendments in these zones tomorrow?
Put simply, the assertion that entire cities and states are “exemption zones” for constitutional protections is nothing more than an end-run around the Constitution and something that no honest jurist should support or condone.
The Progressive Cynic 
If a cop pulled me over, I would do exactly as the guy in this video: http://youtu.be/V8U4Qn6iIIg
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Lake Michigan has no international crossings….I guessing that area (including Chicago) should be exempt.
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but it is within 100 miles of a border. That’s all they need.
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Road vehicle crossings, maybe. You’ve got a dock and an airport.
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While Lake Michigan is completely within the United States, ports such as the Port of Chicago still are points of entry to the United States. Hence, the exemption would apply to them for this case.
The fact that there are international airports in the city have nothing to do with this. Otherwise basically every major city in America would be covered.
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Reblogged this on YouViewed/Editorial.
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Reblogged this on idealisticrebel and commented:
Is big brother getting too big for his britches?
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Big brother has long been wearing big britches.
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Reblogged this on Gds44's Blog.
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The 4th Amendment includes very specific criteria necessary to search or seize anything. Article VI demands that all laws comply with the Constitution. Therefore Judge Edward Korman is suborning the COTUS; clearly not Good Behavior; and should be removed from the bench forthwith.
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The 4th Amendment includes no such caveats and is indisputably clear regarding the justification required to search or seize anything. Article VI demands that all laws conform to the requirements of the Constitution.
Therefore Judge Edward Korman is suborning the Constitution and in accordance with Article III MUST be removed from the bench.
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The key to unlock the cage we all find ourselves in at this time is the judiciary. This branch of government was created, in part, to protect the people from the ambitions and excesses of the other branches of government. Nearly all important issues are ultimately determined in a courtroom. Citizens no longer have direct access to grand juries and find that their complaints are first filtered through the political office of the district attorney who will routinely refuse to prosecute anyone who is politically connected. Litigants are routinely denied standing or due process in the courts to frustrate those who seek justice from the state.
In Marbury v. Madison the supreme court ruled that an unconstitutional statute is void “ab initio” or from it’s inception. It reasonably follows that one of the first issues before any court should be the constitutionality of the law involved. Judges swear an oath to support and defend the constitution, within which is found your right to due process of law. Why is it that a denial of due process, the very definition of a void judgement, per Black’s 6th, never renders any judgement void or results in prosecution of the judge for perjury of his oath?
Judges are the gatekeepers of society. We depend upon them for redress and remedy. They have failed. In order to obtain remedy we must take back our courts by holding judges accountable.
“Jail For Judges” is a concept which creates an external review board to hear complaints of judges actions and negligence and to sanction judges up to and including imprisonment. When judges must choose between according due process to litigants and going to jail for failure to do so, that is when people will receive due process and not a minute before. When “Jail For Judges” becomes law in any single jurisdiction, i.e. any state of the union, a person need only move to that state long enough to establish residency in order to qualify to petition the court for vacation of a facially void judgement, which is the court record of a case which demonstrates a denial of due process.
People must qualify ballot initiatives to institute “Jail For Judges” and re-institute direct access for the public to grand juries to facilitate indictments against govt. actors who commit crimes. In this way the system may be used to purify itself and to return our country to a constitutionally restrained republic.
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Actually, unless they commit an overt act of corruption (ex. taking a bribe), judges enjoy judicial immunity which shields them from prosecution for actions taken while on the bench–even if a ruling is later declared unconstitutional by a higher court, the judge who handed down the ruling is protected.
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Judges yes, but NOT the man behind the robe. You file a claim against that man for trespass against property (that which is proper to i, man, and exclusive to me in society) and THEY HAVE to obey the law of this land… the common law. People just don’t know how to bring these men hiding behind their offices into a court of record.
So, you should all be listening to Karl Lentz (search for him on talkshoe.com or broadmind.com), because we are the only ones affecting any change.
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“Citizens no longer have direct access to grand juries…”
That’s correct, Citizens nor citizens have access to grand juries, but a man does. Stop calling yourselves Social Slaves and you’ll actually start getting somewhere. But no, people keep referring to themselves as “citizens” (really? what “city” are you a “res” of? the City of Washington D.C.?). Remember, man created government, government created Persons (corporations, citizens, etc.), so yes, as a Citizen YOU belong to them. What was said, “all men are created equal…”? Or “all citizens are created equal…”?
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Reblogged this on News You May Have Missed and commented:
Two-Thirds of Americans Live in the 4th Amendment “Exemption Zone”
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That comes to about 233 million Americans,and all of the states of Florida, Main ,Vermont,Connecticut, Hawaii,and all US territories.We need to get all of our US Congressmen and Senators on this pronto.The bill needs to be a 2/3 vote from both houses. That would leave Obama out of it.As for our national security, IT DOESN’T EXIST ANYWAY. Look at how our southern border is being left wide open .
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Don’t get too riled up about this. It’s a maritime border (somewhat a “virtual” border), and of course it’s “Constitution free” because what they’re saying is that those under maritime jurisdiction (i.e. the military, foreigners) cannot use the constitution as justification for anything. “we the people” (man/woman) on the other hand is a different story, we are not under maritime jurisdiction but when confronted with this, you have to state as such, “do you believe you have authority over ‘i, man'”?
However, if you feel that the Constitution somehow bestowed “Rights” upon you (and I am not talking about “civil rights”) then by all means, you are a full-fledged “U.S. Citizen” (a non-American citizen) and ALL U.S. Citizens are under the full jurisdiction of the UNITED STATES Corp (#4) – search Duns and Bradstreet for their corporate charter number. Not all “Americans” are “U.S. Citizens” (which was a new class of citizen created after the civil war when they had no idea what to do with the slaves and the states did not allow them to become ‘state citizens’. This is why the 14th states ‘no state shall discriminate…’). Remember, each of our states (not “States”) are separate nations, each with their own Constitution. You are first a “state citizen” and only politically are you a “U.S. Citizen”. This treachery went into play during the 13th / 14th amendments.
Anyway, I am sure you think all I said is crap, but you owe it to yourself to go watch on youtube (“new history of America”).
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Exactly, when tons of drugs are being walked across our Southern borders almost or daily. Whats to stop them from walking a few hundred dirty bombs across with them. Woooo, I don’t know how half of us are still alive by the way our borders get raped everyday with illegal activity.
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I’m sorry but that 100 mile thing is not true.
The border thing is true.. because you consent to the search… just like flying on an airplane you are consenting to have your person and everything you have with you searched. If you don’t want your stuff searched, don’t cross the border / fly in a plane.
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“Forcing” someone to give out their password already violates the 5th amendment.
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UNfortunately, not according to the courts.
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Reblogged this on Dead Citizen's Rights Society.
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Just keep on re-electing the same old politicians. American voters are insane. Insanity is: “Doing the same thing over and over again and expecting different results.”
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Ding Ding Ding
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Reblogged this on Conservative Free Thinkers.
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Under the provisions of federal law which outline the powers of border officials (8 USC § 1357), federal agents have the power to perform warrantless searches within a “reasonable distance” of the US border…
Umm, looks like 8 USC 1357 is only applicable to “IMMIGRATION”. Since you are considered to be a citizen, whether a state citizen, or a US Citizen, then these codes/rules of internal policy and procedure do not apply to you.
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Actually that is not the case. Currently, these searches are carried out along the southern border zone to search for illegal immigrants and drugs by ICE, the FBI, and the DEA.
Beyond that, how hard do you think it is for the DHS to coordinate its people in immigration with its people in intelligence agencies and law enforcement? DO you really think that this letter of the law (that is already being broken) will really restrict a motivated government trying to achieve a goal?
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Right, I don’t dispute anything you’ve said. My point goes hand-in-hand with someone else who mentioned “consent”. Authority is given “by the consent of the governed”. Fortunately for us, America is still a common law land, and as such, “they” have no authority over a “man”. Go show me any law dictionary, statute, code, rule, etc. where it explicitly defines that “any man shall” (doesn’t exist, sorry). They are not allowed to define man. Man created them.
However, go into a situation like this claiming you are some ‘U.S. Citizen’ and you are considered a legalese “Person” and yes, they can jump all over you, ignore your “consent” etc. Speaking to your public servants man-to man (call them by their name, not office title) though, and the game changes 180 degrees. There are those of us who are doing these things and winning, but they will never be reported on. You can find out more on “www.suijuris.me” or listen to the audio archives on http://www.talkshoe.com and search for Karl Lentz.
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To explain it more simply, “property” is king. They cannot “harm” any of your property (harm = trespass, destruction, or injury to that which is “proper” to i, a man). If they do such harm, they (the man behind the badge, mask, etc.) is liable as a “wrongdoer”. I don’t care if they understand these concepts or not, when I take them to court, i will win and they will have to compensate me for harm to property. The judge knows it. Now, go learn how to pull them into your common law, “court of record”.
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Put simply, this case tends to disprove that the common law will protect you. A court case was brought in this situation and the judge clearly ruled in favor of the government by dismissing the case of the plaintiff in totality.
From your comments, you are sounding a little like a sovereign citizen supporter. If so, you should really look into the history of such arguments in courts over the past decade or so–they do not work and the mainstream juris prudence is that such arguments are to summarily dismissed.
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Common misconception. He didn’t invoke a common law court. He went into it with a lawyer/attorney (big no-no for common law, you have to stand on your own), and started speaking legalese in his “motions” and “petitions” (petition = praying to the court, you don’t pray to public servants). So, his case was doomed from the begining. I read it and within the first couple sentences I knew he’d lose. He didn’t make any “claims” (those are different from “complaints”) and common law claims are using 3 – 4 sentences MAX.
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If you have sensitive files on your computer, you should consider an encryption program such as TrueCrypt. This not only encrypts your files, but it offers the option of a dummy password that you can give so anyone searching will think you have given them access, but your files remain completely hidden.
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Reblogged this on freedombytheway and commented:
Overreach AGAIN. So much for living near the coast.
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If they don’t obey the US Constitution then they’re not the government any more.
They’re just organized crime and should be treated as such.
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You may be interested in reading http://losthorizons.com/CtCforFree.pdf as well as listening to past audios of Karl Lentz on http://www.talkshoe.com. You anger shall be subsided. Good luck!
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Hmmm
. Clearly this notion of a “border” bestowing the right to violate the 4th amendment is pure fantasy and has no bases in the law. It is akin to the term “military combatant” or “Al-Qaeda” terms made up to justify what would otherwise be illegal. In short it is treason.
OK here it is again in black and white. And again no branch of the government may violate the Constitution or the Bill of Rights except in time of war or armed insurrection
The fourth amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Again I defy anyone to show where in this amendment the right to warrantless searches for any reason is allowed. Let alone an arbitrary distance of 100 miles from the border. Wake up people the government is violating your rights and the Constitution and therefore the rule of law.
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Did you not know that we’ve been in a perpetual war since the civil war? There was never any peace declaration signed between the original states, and the newly created federal States that came about after the restructuring of the State Corporations (go look up your State’s corporate charter on Duns and Bradstreet, most judicial districts are also corporations as well). So ever since 1860’s, we’ve been in a “state of emergency”. That’s how they are able to issue military scrip (dollar notes – FRNs – instead of dollar bills which were interest free).
So, if you believe they have some right to do this during “time of war”, then guess what, we’re in it. All Americans were declared “enemies” March of 1933. Now, those are presidential executive orders, so they only are in effect internally to D.C., however, you see them propagate out as it’s almost nearly impossible to get a bank account now without a Social Slave Number.
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well, as much as this pisses me and I’m sure millions off, guess what…..Terry Nichols, Timothy McVeigh’s accomplice, lived in the “Exemption Zone”, Ted Kaczynski was from suburban Chicago, also in the “Zone”, all 19 9/11 bombers took up residence on Florida’s east coast, hmmmmm, in the “Zone”, so if this is what it takes to keep these terrorists psycho sons of bitches at bay, then so be it.
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Why even limit it to 100 miles?
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You fundamentally misunderstand the purpose of a constitution–it is a foundational document that cannot be violated and only be changed under very limited circumstance, one of which is not the whims of those currently in power.
The fourth Amendment exists to prevent abuses by the government and allowing those in power to abridge this right for some ephemeral degree of expedience or security is not only a violation of the Constitution, but deeply immoral. Brought to a logical extension, we could say that all gun owners and right wingers should be forced to install a camera system in their houses for the government to watch in on them, simply because a lot of people like them have committed terrible violence in the past–at that point, we would be walking right into 1984.
This may seem to be an unrealistic argumentum ad absurdum, but it illustrates the slippery slope that comes when we violate rights for a little more security (or just a false sense of security).
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No individual has the right to repeal an amendment, which is what this so called Judge did.
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Lousy map. Lake Michigan is completely within the USA as far as I know. Most of the USCBP and US Immigration operations are centered around Chicago’s O’Hare International airport. It is highly doubtful they will attempt to implement widespread checking of electronic devices outside of the international airport’s property. The goal would be to stop and check vessels entering Lake Michigan’s northern end.
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Good article but my concern is tht it might be a little over the top: Torres v Puerto Rico establishes that warrantless searches are permissable in relation to people entering our borders. The Greenwald example is not really valid because there is no apparent border entry issue here. No court is going to uphold such a warrantless search inspite of Torres V Puerto Rico. It would seem to me that it is important to perform searches at the border to stop entry of many different items such as pest ridden fruit to drugs. So why the 100 mile? Because our border is huge and porus. But those searches must be related to entry into the US. Perhaps a little too much ado…?
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they will extend this 100 mile farther into our country until we have NO rights whats so ever just a matter of time.
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the crux of the issue is here: it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry. When I am driving east out of Tucson, I am NOT “seeking entry”, thus this charade is a false one. The courts “finding” this “”need” need to be shut down. What a travesty of justice.
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