Attention, citizens. Please check the chart above to see if you still have your 4th Amendment rights. All those living in the orange-shaded areas are no longer protected from unwarranted searches and seizures of their property.
- Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
- The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
- But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
- As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
- Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
- However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.
- The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.
Much of U.S. population affected
Many Americans and Washington policymakers believe that this is a problem confined to the San Diego-Tijuana border or the dusty sands of Arizona or Texas, but these powers stretch far inland across the United States.
- To calculate what proportion of the U.S. population is affected by these powers, the ACLU created a map and spreadsheet showing the population and population centers that lie within 100 miles of any “external boundary” of the United States.
- The population estimates were calculated by examining the most recent US census numbers for all counties within 100 miles of these borders. Using numbers from the Population Distribution Branch of the US Census Bureau, we were able to estimate both the total number and a state-by-state population breakdown. The custom map was created with help from a map expert at World Sites Atlas.
- What we found is that fully TWO-THIRDS of the United States’ population lives within this Constitution-free or Constitution-lite Zone. That’s 197.4 million people who live within 100 miles of the US land and coastal borders.
- Nine of the top 10 largest metropolitan areas as determined by the 2000 census, fall within the Constitution-free Zone. (The only exception is #9, Dallas-Fort Worth.) Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.
Part of a broader problem
The spread of border-search powers inland is part of a broad expansion of border powers with the potential to affect the lives of ordinary Americans who have never left their own country.
- It coincides with the development of numerous border technologies, including watch list and database systems such as the Automated Targeting System (ATS) traveler risk assessment program, identity and tracking systems such as electronic (RFID) passports, the Western Hemisphere Travel Initiative (WHTI), and intrusive technological schemes such as the Secure Border Initiative Network (SBINet) or “virtual border fence” and unmanned aerial vehicles (aka “drone aircraft”).
- In addition to the inland border searches conducted by Border Patrol agents, the Department of Homeland Security (DHS) claims the authority to conduct suspicionless searches of travelers’ electronic devices – including laptops and cell phones – at the border. While we do not know whether the government claims this authority throughout the 100-mile zone, such searches are particularly invasive as a result of the wealth of personal information stored on such devices.
- This illegitimate expansion of the extraordinary powers of agents at the border is also part of a general trend we have seen over the past 8 years of an untrammeled, heedless expansion of police and national security powers without regard to the effect on innocent Americans.
The latest incident comes from Rogier van Bakel, a writer at Reason:
At the Jackman, Maine, border crossing into the United States, I get interrogated about what I have in my car. And not just the three juicy Canada-bought clementines, either.
“What is your relation to these children?” brusquely demands the young border guard who examines my two daughters’ passports and my own.
They do have their mother’s last name, and they do look somewhat Asian. I’m white. Maybe he’s curious. So I don’t give him any lip.
“I’m their dad.”
“Where is their mother?”
“At home, I guess.”
“Do you have a letter with her permission for you to travel with them?”
“I wasn’t aware that I needed any such thing,” I say. “Are you telling me I do?”
He clearly doesn’t appreciate even that tiny bit of pushback.
“Never mind. Follow me into lane one, please. We’re going to have to search your vehicle. Please give me your driver’s license.”
I hand it to him, then park the car in the area he indicates.
“Now please get out of the car and follow me inside.”
I grab my iPhone off the dash, hit the record button, and tell him politely: “For my protection, officer, I’m now recording what’s happening.” He stays silent. I step out of the car, and without warning, he physically attacks—that is, he wrestles the phone from my hand, twisting my arm in the process. I’m stunned.
“Officer, I do not give you permission to take my phone.”
“I don’t need your permission!” he barks. “Get inside and sit on the bench. With your kids.”
He disappears. With my phone.
Inside the building, I ultimately get a lecture from two other border patrol officers—friendlier, but not by much—about why recording is not allowed.
“If you upload it or share it in any way, people are going to know what kinds of questions we ask,” one of them says.
That makes no sense, I say. “As a journalist, I can tell the world, in writing, what questions you ask. In the U.S., anyone has that right. That’s certainly not against the law. What’s the difference between that and recording the conversation?”
A moment’s hesitation.
“Officer safety and security.”