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COMMENTARY: 4th Amendment is so yesterday

by Scripps Howard News Service on September 12, 2013 10:30 AM

The Founding Fathers valued privacy enough to specify that the people had the right to be secure against unreasonable searches and seizures unless a warrant was issued.

Among other items, they specified “papers.” In a rare moment of shortsightedness, they failed to specify laptops, cellphones and thumb drives. The feds, if they had any clue that these electronic devices might contain incriminating information, could of course go to court and obtain a warrant.

But the Department of Homeland Security has found a way around that constitutional technicality, as in the recent case of David House, who came to the feds’ attention for having raised funds for the defense of secrets-leaker Chelsea Manning, formerly Pfc. Bradley Manning.

No telling what secrets House may have had, but it apparently wasn’t worth the hassle of going to court to find out.

Instead, according to The Associated Press: “U.S. agents quietly waited for months for House to leave the country, then seized his laptop, thumb drive, digital camera and cellphone when he re-entered the United States. They held his laptop for weeks before returning it, acknowledging one year later that House had committed no crime and promising to destroy copies the government made of House’s personal data.”

The DHS is maintaining an expanding database on American travelers. A computer automatically informs DHS agents if someone in the database, who is even of slight interest, is entering or leaving the country. The information in that database is shared with other government agencies. House’s was turned over to the Army Criminal Investigation Command, which, after a detailed search of his files, found no evidence of any crime.

Once in that airport no man’s land where the law seems to be pretty much whatever DHD says it is, the traveler has little recourse against unreasonable search and seizure because the courts have created a broad loophole called “the border exception.”

The DHS has a legitimate interest in border searches. Think child pornography, industrial espionage and — who knows? — maybe even evidence of a terrorist plot.

News organizations that have looked at the problem fault the DHS for being “murky” about what constitutes reasonable suspicions, how long a traveler can be detained, whether they must provide their passwords or whether they’re even required to answer DHS agents’ questions.

The problem requires legal clarity. Maybe a congressional committee could tear itself away from trying to kill health care reform or to gut the armed services long enough to provide it.

If only James Madison and George Mason had been a little more farsighted.

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