The Fourth Amendment of the Constitution reads, “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.”
Take note: The phrase, “except along the nation’s border” is not present in the Fourth Amendment. Yet, the federal government has been pretending that this exception exists, that border agents have the right to search and seize anything they want, without probable cause. That general avoidance of our constitutional rights along the border has been in place for some time, but it became worse under President George W. Bush, who declared last summer that computers and other digital information devices would be subject to search and seizure without probable cause by Homeland Security agents along America’s borders.
Have things changed under Barack Obama? No. That policy is still in place. Take your laptop with you on an international business trip, and U.S. border agents can take it from you and search its contents, without ever telling you why they’re doing it. In fact, they can take your computer from you even if they don’t have a reason for doing so. The American Civil Liberties Union calls Obama’s policy “a disappointing ratification of the suspicionless search policy put in place by the Bush administration”.
On the 7th of January this year, when George W. Bush was still President, Eliot Engel introduced a bill to the United States House of Representatives that would end this abusive and unconstitutional practice. The Securing our Borders and our Data Act, H.R. 239, would reassert the Fourth Amendment’s requirement of probable cause for all searches and seizures, including those along the border, with the following clause: “No search of the digital contents of the device or media may be based on the power of the United States to search a person and that person’s possessions upon entry into the United States, unless that search is based on a reasonable suspicion regarding that person.” The bill quickly gained the cosponsorship of libertarian Republican Ron Paul.
On February 9, after Barack Obama had been sworn in as President of the United States, the Securing our Borders and our Data Act was referred to the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. There it has remained ever since, untouched, unexamined, stalled. The only thing that’s happened to advance the bill is the addition of Steven Rothman as a cosponsor in July.
Why has this bill, seeking to protect Americans’ constitutional rights, failed to advance? Primary responsibility for the inaction on the Securing our Borders and our Data Act lies with Zoe Lofgren, the chair of the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. She has the power to advance the legislation. Instead, she has chosen hold it back.