Jun 06 2013

Security Theater

The problem with our “elites” is that most of them are certifiable morons who only have their jobs due to nepotism and cronyism.  Thus, to disguise the fact that they are consistently and reliably wrong and incompetent, they constantly try to hide their mistakes and make sure that they can never be held accountable for them.

Today’s example comes from the Department of Homeland Security which asserts its authority to search your electronic devices at border crossings based on nothing but an inarticulate “hunch”.

[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

Civil Rights/Civil Liberties Impact Assessment- Border Searches of Electronic Devices (.pdf), December 29, 2011

This document was released pursuant to an ACLU Freedom of Information Act request and here’s what they have to say about it-

DHS Releases Disappointing Civil Liberties Report on Border Searches of Laptops and Other Electronics

By Brian Hauss, Legal Fellow, ACLU Speech, Privacy and Technology Project

06/05/2013, 3:49pm

This line of thought is faulty for a few reasons. DHS claims that giving Americans the opportunity to challenge laptop searches in court would lead to the divulgence of national security secrets, but this is obviously wrong. The government has numerous resources at its disposal to prevent the disclosure of sensitive information. The “state secrets privilege,” to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic. Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built.

Even more problematic is the government’s claim that the “hard-to-articulate” hunch of a border agent is enough for the government to scrounge around through our personal photos, medical and financial records, email, and whatever other sensitive information may be stored on our laptops and phones. While the report cites unspecified anecdotal evidence that wrongdoers are sometimes apprehended based on “intuitions,” it says nothing about the number of innocent people who are subjected to unjustified searches as a result. As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people’s rights “based on nothing more substantial than inarticulate hunches,” then “the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the [government].”

To be sure, rummaging around through people’s personal papers may well turn up the occasional bad guy, but that is not the only consideration. No doubt law enforcement agents would also find it useful to walk into people’s homes at will, but we don’t allow them to do so because that would intrude on our reasonable expectation of privacy in our homes. And just as we reasonably expect privacy in our homes, so, too, do we expect that border agents will not base their decisions to search through our electronic information on a whim or a hunch. Put another way, requiring law enforcement agents to possess objective reasons for a search is a feature of our constitutional framework, not a bug.

(h/t Wired)

1 comment

  1. ek hornbeck

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