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Civil Rights

Who Are The Masters, Pt 1: Data Searches

— September 26, 2017

When the government can freely perform data searches on citizens but those seeking records via the Freedom of Information Act get sued, who are the masters?

Are laws really just when they “apply to thee but not to me?” In the area of data searches, there’s a widening rift between those with rights and those without. In a country where government is, ideally, by the people and for the people, who are the masters when there’s a kind of one-way glass dividing us from them?

The Fourth Amendment’s prohibition against unreasonable searches and seizure and the concept of a person’s right to security in their “persons, houses, papers, and effects” arose directly out of the Colonists’ treatment at the hands of the English. In England, royal warrants could be (and were) issued to raid the homes and seize the papers of those critical of the King and his policies. (These warrants were executive fiats, sort of like today’s data searches by the DHS.) English courts later ruled such warrants, exercised without probable cause that any crime had actually been committed and which resulted in the seizure of papers unrelated to the reason for the search, “contrary to the genius of the law of England” and subversive “of all the comforts of society,” or as we might say nowadays, “utter BS.”

Similar treatment of colonists, especially those allegedly involved with smuggling, inspired the Founders as they laid down the language of the Fourth Amendment. Once enshrined in U.S. law, the Fourth Amendment has been the subject of wavering definitions of “reasonable” which ebb and flow with the times (and the ideologies of various administrations).

For example, consider the current state of data searches, especially at the border. Common sense would argue for two points: first, that the border crossings on U.S. soil are still inside the United States and that people passing through them are subject to the protections of the Constitution, and second, that a person’s cell phone and laptop clearly represent the modern equivalent of a colonist’s papers and effects. However, border guards now routinely ask travelers for passwords and can confiscate their electronic devices, even if the people subject to these data searches are not accused of any wrongdoing.

Is it possible to choose privacy by simply avoiding travel outside the country? Possibly, although it’s difficult for some, such as journalists or business travelers, in our globalized culture. When you’re stuck at the border and the only way to get home is to “consent” to a search of your devices, it’s under duress and can hardly be considered a choice at all.

Why are We Searching 25,000 American Cell Phones?! Posted by Rand Paul.

In contrast to the ease by which governmental authorities access our information through data searches at the border and surveillance via internet and wireless providers (seemingly always performed “for our own good”), consider the plight of those who reverse the microscope via public record searches. Requests made through the Freedom of Information Act should either be freely granted or denied for a good reason. Lately, though, everyday citizens seeking governmental transparency through lawful channels have been increasingly subject to legal action. Agencies which would prefer not to divulge results of public data searches have effectively blocked or delayed the release of potentially embarrassing or incriminating information by suing those who made requests. The threat of having to appear in court and pay huge legal fees can intimidate those legitimately seeking public documents, such as whistleblowers, into giving up their rights.

The chilling effect of forcing citizens to reveal their private data while raising undue and frightening barriers to governmental transparency should not be underestimated. If you are the sort of person who believes that the government should be afraid of its people (and not the other way around), the disparity in data searches should alarm you. Who are the masters in this “government of the people, by the people?” It’s certainly not us, but it may also not entirely be the government itself. We’ll explore more about who they might be, in Part 2.


New secrecy tactic: suing people who seek public record
Warrantless Border Searches of Smartphones Are Skyrocketing. We’re Suing to Stop Them.
DHS faces lawsuit over legality of forced warrantless device searches
Remember the artist whose iPhone was searched at border? He’s suing the feds
Q & A: US Warrantless Surveillance Under Section 702 of the Foreign Intelligence Surveillance Act
In Warrantless Cellphone Search Case, It’s the Trump Administration vs. the 4th Amendment
A Digital World: Why Law Enforcement Needs to Obey the Fourth Amendment
American Citizens: U.S. Border Agents Can Search Your Cellphone
Annotation 1 – Fourth Amendment

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