Welcome to Justice in the Age of the Surveillance State

Valentine’s Day is only about a month away. Imagine you are lucky enough to spend it in Paris.

You and your partner have an exciting, romantic trip together. Before you return to your daily life in the good old U.S.A., your special someone slips you an envelope and whispers, “Something to help you remember. Open it at home.”

Upon arrival in the States, a U.S. Customs agent notices the envelope protruding from your coat pocket. “What’s that?” the agent asks.

“A letter from a friend,” you say.

The agent says, “Let me see it.” (Customs officers don’t make requests; they give instructions.) The officer takes the envelope, ascertains that it is indeed just an envelope containing a note, and then proceeds to open the envelope and read the note. The envelope contains a very detailed description about everything that made your trip to Paris so memorable. We’re not talking about the Mona Lisa, either.

“Welcome home,” says the officer, handing the letter back. “Sounds like a great trip.”

Would you think your privacy had been violated? Do you think your right to that privacy, and your reasonable expectation that your private correspondence is your own business, was infringed?

U.S. District Judge Edward Korman of Brooklyn, N.Y., doesn’t think so. Not if the note is stored on your computer as an email, or sent to you in a text message on your smartphone, or read aloud to you in a video on your tablet. Not only is it Customs’ right and duty to determine that you are in fact carrying a computer, a smartphone or a tablet, but Korman asserts you have no reasonable expectation of privacy for any of the data on your devices, and thus presumably for any correspondence that is on your person or in your luggage, when you cross an American frontier.

Korman’s ruling granted a government motion to dismiss a lawsuit claiming that searching a laptop without reasonable suspicion at a border crossing was an unconstitutional practice. The laptop was seized and held for 11 days, during which the government had ample opportunity to examine what was on it.

Korman found that the journalist plaintiffs did not have standing to bring the suit, and wrote that they “must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to ‘guarantee’ confidentiality to their sources, or protect privileged information.” Since trying to keep information private when traveling is futile, the logic seems to go, there is no sense in making a fuss when American officials are the ones shattering the attempt at privacy.

Welcome to justice in the age of the surveillance state. As always, the justification for such invasions is the war against terrorism. Or communism, or anarchy, or polygamy, or whatever is the bogeyman of the moment. There’s always someone out there we need to be defended against.

Or at least that seems to be the perception of a federal judge in Brooklyn. Is he correct under the law? With any luck, the appellate courts will soon tell us – and I surely hope they tell us no. Otherwise, I think we have a big problem on our hands, of which this is merely a component. That problem is the one Edward Snowden warned us about and which President Obama is (per his custom) deeply contemplating, without offering any credit to Snowden for inciting this contemplation.

Customs and Border Protection, in particular, is an agency that has appointed itself not just the gatekeeper and defender of the borders, but the examiner of every American who dares to cross them. Whether through searching electronic devices at the border, sending K-9 officers and agents onto a cruise ship about to leave, rather than enter, the country, or questioning train or bus passengers miles south of the Canadian border, CBP agents have habitually overstepped their authority for years as a part of a broader trend toward greater invasive behavior from government agencies with less demonstrable cause.

These people need to be brought under control. We usually look to the courts to help us in such a case, and maybe the courts will ultimately justify our faith. But if not, we need to get Congress to act on our behalf, setting explicit legal boundaries on the public servants who confuse protecting our personal space with invading it.

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