You should come hear my talk at Phreaknic. I'll cover all of this. flynn23 wrote:
So is this just an end run on habeus corpus?
No. Habeus Corpus is an unrelated concept ... the notion that if the executive seizes a person they must explain their reasons and authority for doing so to an independent decision maker (the judiciary). U.S. Customs is not seizing people, just laptops. It might be more appropriate to ask if this is an end run around the 4th amendment... Or is it a legal "grey zone" because we're dealing with border checkpoints and not terra firma?
Yes and no. Its not technically a "grey zone." The 4th amendment is said to apply at the border. However, the 4th amendment has two parts: 1. No unreasonable searches.
2. Warrants require probable cause. The problem here is that it tells you what you need to get a warrant, but it doesn't tell you when a warrant is required. It has a loophole... It only requires that searches be reasonable, and reasonable means whatever people think it ought to. The Supreme Court has decided that all border searches are reasonable by virtue of the fact that they occur at the border.... God, what the fuck is wrong with these people? Who is sitting in a meeting where this gets proposed and says "I think that's a good idea..."???
It doesn't happen that way. The water just keeps getting hotter until the frog starts to boil but when the frog complains the cook says "Why are you complaining now? The burner has been on for half an hour and you never said a thing! If it was OK for the burner to be on 10 minutes ago it must be OK for it to be on now! Shut up!" In the 1790's Congress allowed customs to search shipping vessels if they had reason to suspect they contained contraban. Two months later the same Congress also passed the 4th amendment. In the 1970's, the Supreme Court decided that the only way to reconcile these two decisions is to conclude that border searches don't require a warrant -- they are presumptively reasonable. In 1985, during the drug war, the Supreme Court relied on that 1970's decision that all border searches are presumptively reasonable to declare that customs agents do not need a reason to perform a routine search (note that this has morphed somewhat from where we were in 1790). However, they also declared that non-routine searches still require reasonable suspicion. In 2004, the Supreme Court relied on that 1985 decision to declare that the removal and disassembly of a gas tank from an automobile is a routine search and can be performed without any reasonable suspicion. The frogs were a bit warm at this point. In the spring of 2008 the 9th circuit court of appeals ruled that searches of the content of laptop computers are routine searches and can be performed without any reasonable suspicion. The frogs are now complaining that it is quite hot in here. Customs is arguing that there has been no policy change in regard to routine searches and that these court opinions just confirm prior policy. What this argument ignores is that technology has changed. People are now bring far more information across the border on a more frequent basis than they were before, and that changes the stakes. More at Phreaknic. | 
