Border Crossings, Laptops and the Constitution

A Washington Post article by Ellen Nakashima, Travelers’ Laptops May Be Detained At Border, reported on newly announced powers of the Transportation Safety Administration (TSA) to search and seize electronic devices such as laptops, cell phones and Ipods at border crossings into the US:

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including US citizens — are reasonable and necessary to prevent terrorism... The policies cover 'any device capable of storing information in digital or analog form,' including hard drives, flash drives, cell phones, iPods, pagers, beepers,
and video and audio tapes. They also cover 'all papers and other written documentation,' including books, pamphlets, and 'written materials commonly referred to as pocket trash...

Key documents related to this newly announced power include:

United States Constitution Bill of Rights, Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The DHS official policy on laptop confiscation which says: “officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.”

The policy stems from searches reported by DHS to have uncovered "violent jihadist materials" as well as images related to child pornography. The child porn case involved Michael Arnold who was stopped at Los Angeles International Airport where Customs and Border Protection (CBP) agents searched his laptop after he returned to the country from the Philippines in July of 2005. The agents found images they said were child pornography. At the trial of the criminal action filed against Arnold, the defendant moved for the suppression of the images and the search. The government argued it had reasonable suspicion that a crime had been committed and that even if they had no suspicion at all, the search was allowed because it took place at a border point of entry.

The District Court for the Central District of California ruled in favor of the defendant in U.S. v. Arnold, 454 F.Supp.2d 999 (C.D.Cal.,2006) finding that the CBP officer who conducted the search did not have a reasonable suspicion. The court entered an order suppressing the evidence obtained in the search of Arnold's laptop. That decision was reversed by the 9th Circuit Court of Appeals in U.S. v. Arnold, 523 F.3d 941 (9th Cir. 2008) stating "Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicion-less border searches of travelers' luggage that the Supreme Court and we have allowed…" and that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border".

The US Senate Committee on the Judiciary Subcommittee on the Constitution held hearings on “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” on Wednesday, June 25, 2008 with Senator Feingold presiding as Chairman.

Travelers who want to minimize exposure of their personal information are advised to clean up their laptops and other devices before leaving the country, including email and client data, old love letters and photos, as well as the browser's cookies, cache and browsing history. Turning off laptop computers before going through customs is a good idea.

Professor Susan Herman to Present PLI Program

The Practising Law Institute (PLI) will be conducting its Tenth Annual Supreme Court Review on Tuesday, August 5, from 9 a.m. to 5 p.m. at the PLI Center, 810 Seventh Avenue at 53rd Street, New York City. The program will cover cases decided during the Supreme Court's 2007 Term including those involving the rights of enemy combatants, voting rights, the Second Amendment right to bear arms, the death penalty, the Fourth Amendment exclusionary rule, and sentencing. Among the presenters will be Brooklyn Law School Professor Susan N. Herman. Links to many of Professor Herman's prolific body of writings are available on Selected Works.

A simultaneous live webcast of the session will be made available to webcast participants who will be able to submit questions electronically. The cost of the program is $995. PLI has a Law Student Scholarship where law students generally receive full scholarships to most programs, except for the $25 application fee.

The Serenity Prayer and Law Librarian Research

One of the most emailed stories in yesterday’s New York Times was one by Laurie Goodstein entitled Serenity Prayer Stirs Up Doubt: Who Wrote It? Reinhold Niebuhr (1892-1971), once vice president of the Union Theological Seminary in New York, is generally credited as the author of the Serenity Prayer. See the online version of Bartlett's Familiar Quotations. The Times article reports the findings of Fred Shapiro, the Associate Law Library Director at Yale's Lillian Goldman Law Library:

Now, a law librarian at Yale, using new databases of archival documents, has found newspaper clippings and a book from as far back as 1936 that quote close versions of the prayer. The quotations are from civic leaders all over the United States — a Y.W.C.A. leader in Syracuse, a public school counselor in Oklahoma City — and are always, interestingly, by women.

Some refer to the prayer as if it were a proverb, while others appear to claim it as their own poetry. None attribute the prayer to a particular source. And they never mention Reinhold Niebuhr.

For the Yale Alumni Magazine article by Fred Shapiro cited in the Times story, click here.

Episode 030 - Conversation with BLS Professor William Hellerstein

Episode 030 - Conversation with BLS Professor William Hellerstein.mp3

A posting on this blog last week told of the appointment of BLS Prof. William Hellerstein to the New York State Bar Association’s Task Force on Wrongful Convictions. In this pod case, Prof. Hellerstein talks about the work of the task force and his experience as a trial court and appellate litigator dealing with cases of defendants seeking exoneration after having been wrongfully convicted.

Prof. Hellerstein tells of the work that he has done with BLS students in the Second Look Clinic, including the successful outcomes in Schulz v. Marshall in the US District Court for the Eastern District of New York and in People v. Wong, 784 N.Y.S.2d 158 (App. Div. 2004) (Westlaw password needed). For more information on the success of the Second Look Clinic in the Wong case, see the BLS link here.

World Justice Forum and the Rule of Law

This past weekend, Vienna played host to the World Justice Forum, a project of the ABA’s World Justice Project. In attendance were more than 500 participants, including dignitaries and world leaders from 112 countries, scholars in a number of disciplines, former and present heads of state, CEOs of multinational corporations, labor leaders and directors of key nongovernmental organizations who met for four days to discuss the rule of law. The WJP described the four universal principles comprising the rule of law:

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable and fair, and protect fundamental rights,
including the security of persons and property;
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient;
4. The laws are upheld, and access to justice is provided, by competent, independent, and ethical law enforcement officials, attorneys or representatives, and judges who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

A news release issued by the American Bar Association reports that participants of the multinational conference reported on their collaborative programs to strengthen the rule of law. In the session on human rights, Pakistani human rights activist Dr. Parvez Hassan stated, “The only thing worse than injustice, is tolerating injustice.” Hassan likened the situation Pakistan faced last year with the deposing of a large percentage of the country’s judges, to what would happen in the United States if seven of the nine U.S. Supreme Court justices were stripped of power.

Also speaking at the session on human rights was US Supreme Court Justice Ruth Bader Ginsburg. An ABA Journal article reports that an audience member challenged Judge Ginsburg saying that the United States no longer offers the world a model for commitment to the rule of law because of its anti-terrorist policies. Responding to concerns that US policies violated international conventions prohibiting indefinite detentions and inhumane treatment of detainees, Judge Ginsburg dismissed calls for accountability based on a revenge motive saying "Where do we go, what lessons can we learn from the past? The important thing is, what you can learn from the past and make sure it doesn't happen again."

Prosecutions of violations of law have traditionally served both the desire for retribution and the hope that they will deter future violations.

Brooklyn Bridge Waterfalls

The New York City Waterfalls may not be as beautiful or spectacular as Niagara Falls but viewing them from the South Street Seaport was worthwhile this holiday weekend. The project, a creation of Danish Icelandic artist Olafur Eliasson consists of four towering waterfalls cascading down into the East River and New York Harbor. The towers, ranging in height from 90 to 120 feet, are located on the northern end of Governor's Island, by Manhattan's Pier 35, between Brooklyn's Piers 4 and 5, and most dramatically, beneath the Brooklyn Bridge.

The falls draw water from the East River at a rate of 35,000 gallons per minute. Because of environmental concerns, the project had to navigate a Byzantine permit process involving 20 permits from 30 city, state and federal agencies and work from engineers, scientists, divers, riggers and environmentalists. Mesh-covered filters had to be installed at intake points to ensure that fish, other organisms and random East River garbage did not mix in with the waterfalls. According to attorney Ronald Daitz, of Weil, Gotshal and Manges, who served as volunteer counsel on the project, the project had unusual challenges including hiring an expert to screen for buried artillery on Governor’s Island, a former military base, now administered by the National Park Service as a National Monument.

The project’s cost, estimated at about $15m, was funded with money raised mostly from private donors by the Public Art Fund which is joining with NYC agencies and environmental organizations to develop resources for young people and adults to examine the waterfront through art, history, environmental responsibility, aquatic life, ecology, water conservation and other related subjects. The NYC Department of Education and the US Department of Environmental Protection have joined with the Public Art Fund to integrate a specially created curriculum inspired by the Waterfalls into New York City classrooms. The curriculum is expected to be released in August 2008. The waterfalls are scheduled to be in place through October 13.

Who's Winning the War on Drugs?

The NY Times editorial entitled Not Winning the War on Drugs says: “Over all, drug abuse must be seen more as a public health concern and not primarily a law enforcement problem. Until demand is curbed at home, there is no chance of winning the war on drugs.” The “War on Drugs” began in June of 1971, when President Nixon identified drug abuse as "public enemy No. 1." Two years later, in July of 1973, he created the Drug Enforcement Administration (DEA) to coordinate the efforts of all other agencies. Now, 35 years later, a new World Health Organization (WHO) survey of 17 countries reports that, despite American punitive drug policies, the United States has the highest levels of illegal cocaine and cannabis use. The countries surveyed were:

1. Colombia
2. Mexico
3. United States
4. Belgium
5. France
6. Germany
7. Italy
8. Netherlands
9. Spain
10. Ukraine
11. Israel
12. Lebanon
13. Nigeria
14. South Africa
15. Japan
16. People’s Republic of China
17. New Zealand

The survey concluded that, in general, the US had the highest levels of lifetime use of all drugs. Cannabis use in the US was measured at 42% of the population, far higher than in any other country except New Zealand also with 42%. The US was also an outlier in cocaine use at 16% of the population compared to 4% or lower in other countries for lifetime use of cocaine. Lifetime tobacco use was most common in the US at 74%. Lifetime use of alcohol in the US was measured at 91.6%, the sixth highest in the nations surveyed.

Comparing the statistics between the US and the Netherlands, with drug policies more liberal than in the United States, 19.8% of survey respondents in the Netherlands reported that they had used marijuana at least once in their lives. In the United States, where we arrest more than 800,000 people every year for marijuana, lifetime marijuana use is at 42.4%, according to the survey. The concluding remarks of the survey say: “Drug use is related to income, but does not appear to be simply related to drug policy, since countries with more stringent policies towards illegal drug use did not have lower levels of such drug use than countries with more liberal policies.”


See the following in SARA, the library catalog: Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole by Thomas C. Rowe, Call No. KF3890 .R69 2006 and How Goes the "War On Drugs"?: an Assessment of U.S. Drug Programs and Policy an electronic resource by Jonathan P. Caulkins.