The Department of Homeland Security’s Office for Civil Rights and Civil Liberties recently concluded that border searches of electronic devices are constitutional. This in itself is not unreasonable, and it matches the Ninth Circuit Court of Appeals 2008 decision in United States v. Arnold. Border searches have always been an exception to the Fourth Amendment’s requirement for warrants, and while searching electronic devices that are carried across the border is stretching that exception, there are still feasible arguments to be made for such actions.
However, this conclusion becomes far more sinister when combined with previous statements made by the DHS, namely that the borders of the United States extend 100 miles inwards from any coast or foreign country. Put simply, if you live within 100 miles of an ocean, Canada, or Mexico, you are at what is considered a border. Even if you are not trying to cross a border, a search of you or your devices is considered a border search, and as such, no warrant, probable cause or reasonable suspicion is required.
Here’s the thing about those 100 miles — nearly two-thirds of all Americans, some 200 million people, live in those areas, according to estimates from the American Civil Liberties Union. What the DHS has done is void the Fourth Amendment for nearly 70 percent of the country. Your phone, your computer or any other device could be in the process of being searched right now, and you will never know.
There is no reasonable explanation for these rules. Border searches are meant to take place at, well, borders.
Actions like twisting words and inventing new meanings to make government actions constitutional have become more frequent under the last two administrations. In the past few years, we have seen “enemy combatant” redefined as “a male of military age,” “torture” redefined as “enhanced interrogation” and “murdering innocent civilians” redefined as “minimizing collateral damage through the use of surgical strikes.” Money is now speech, and corporations are now people. This latest action, defining a border as a place within 100 miles of a border, is just another step toward the Newspeak of 1984. The more language is corrupted, the more rights we will lose.
The lack of media coverage further complicates this issue. Not a single major network or news outlet has written anything about this announcement. There is a notable lack of responsibility to the public on the part of the mainstream media — political influence has undoubtedly led outlets to ignore this decision, in order that they might stay in Washington’s good graces. At a time when the media refuse to cover illegal actions of the government, it is even more important for the public to be informed.
A version of this article was published in the Thursday, Feb. 28 print edition. Ian Mark is a staff columnist. Email him at [email protected]