Every Laptop and Cell Phone in Detroit (and Dearborn) Can Be Searched at Will

I’m not really sure how Detroit is supposed to pursue an arts-based resurgence if the Department of Homeland Security maintains that it can seize any electronics along the nation’s borders — which extend 100 miles and therefore include the bulk of the population of Michigan

The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.


According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.

I mean, if I were a business of any kind I’d move outside of this 100-mile border zone to protect my company secrets. Though that would up-end a good deal of the US auto industry, which they can’t really afford.

This is absurd. The notion that the border exception would expose entire cities (San Diego and, I think, Miami, would be similarly exposed) to this kind of privacy invasion shows how absurd the contention is.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

33 replies
  1. phred says:

    Hmmm, I’m fuzzy on how far off-shore our border might extend, but MIT might want to reconsider how it views intrusion by the feds. Aaron Schwartz won’t be the only target.

  2. phred says:

    @Joanne: What’s really lamentable is the courts set the legal precedent that sometimes the 4th amendment just winks out of existence. One might have thought the constitution clearly delineates legality, but one would be wrong.

  3. orionATL says:

    i wonder when, if ever, federal judges are going to wake up to the fact that prez/doj are playing congress against the court, sidestepping both of the otber two branches.

  4. Jan Rooth says:

    Is this land borders only, or does it include the coastline? If the latter, then it applies to probably more than 80% of the population.

  5. thatvisionthing says:

    I’m in San Diego. I’ve driven through border check stations. A ways back they added these…things…that are aimed at you as you drive through. Stalks of them. Cameras, I’m sure, but how many cameras do they need? It looks like the Yellow Submarine’s periscopes, a bunch of them in a clump. I asked the officer, am I being x-rayed? He said I can’t tell you. I said this is not America.

  6. thatvisionthing says:

    @Jan Rooth: The coastline or the territorial boundary — which extends how many miles out from the coastline? Now you’re talking global.

  7. emptywheel says:

    @Jan Rooth: I don’t know. that’s why I wasn’t sure about Miami.

    I thought our borders extended pretty far out to sea–maybe 200 miles, if possible? In which case it would seem not to apply to coastal cities.

    though it is a damn good question.

  8. emptywheel says:

    Incidentally, I didn’t explain why Dearborn’s inclusion is significant. It has the highest Muslim and Arab population in the US. Plus, CBP and ICE get involved in regular policing FAR too often, often in the name of serving as translators. So with this ruling you get to search innocent people in the guise of a terrorist hunt very easily.

  9. liberalrob says:

    Apparently it’s usually 12 or 24 nautical miles offshore; though I imagine DHS would try to claim the maximum, which is probably the “exclusive economic zone” at 100 nautical miles.


    And of course, within our borders and coastlines, it’s whatever the courts will let them get away with.

  10. klynn says:

    “I mean, if I were a business of any kind I’d move outside of this 100-mile border zone to protect my company secrets. Though that would up-end a good deal of the US auto industry, which they can’t really afford.”

    So let me get this straight.

    We have congresscritters screaming about the economy.

    Our industry sectors are challenged by this economy. Said industries spend TONS on their security of intellectual property.

    We have congresscritters screaming about the threats to US Gov. cybersecurity and daily hack attempts.

    And, we decide to open our own industries within the border zones to more risk of intellectual property theft because their systems are getting picked up by our gov systems which are dealing with daily hack risks?

    What am I missing here?

  11. Frank33 says:

    Another example of our Neo-con Police State, is the Government Database on all Americans. We all can have a digital file for our overseers to examine, now because of computers. Rep. Maxine Waters has discovered there is a database that perhaps can be searched at will by the “authorities”.

    “The President has put in place an organization with the kind of database that no one has ever seen before in life,” Representative Maxine Waters told Roland Martin on Monday.

    “That’s going to be very, very powerful,” Waters said. “That database will have information about everything on every individual on ways that it’s never been done before and whoever runs for President on the Democratic ticket has to deal with that.

    They’re going to go down with that database and the concerns of those people because they can’t get around it. And he’s [President Obama] been very smart. It’s very powerful what he’s leaving in place.”

  12. What Constitution? says:

    @emptywheel: Uh, “Muslim people” are already considered exempt from the 4th Amendment by our government, aren’t they? Except (maybe) President Obama, right?

  13. thatvisionthing says:

    @What Constitution?: I’ve just been listening to Marcy’s interview on the Scott Horton Show: http://scotthorton.org/2013/02/06/2613-marcy-wheeler/

    MARCY: Congress and frankly the American people need to know, because this, you know, huddling inside a bunker and just claiming “la la la la la, it’s legitimate,” doesn’t work. It’s not how democracies work.

    SCOTT: Right. Well, and now, you know, the other Scott Horton was on the show yesterday, and I won’t try to make his case for him but he certainly wasn’t buying it, whatever was in that white paper, that that amounted to good enough or that, you know, what they consider imminent is imminent, or what they consider – or even that it’s plausible at all that it can just be up to the government to say, you know, for the president to appoint someone and say that they’re in charge of designating someone to be guilty – you know, like was it Holder’s speech that said, “Well, the due process takes place in the president’s mind. He’s got the two hemispheres of his brain, and if they agree, then that’s due process of law, and then he can kill you, and that’s all the Constitution ever meant anyway,” right?

  14. JTMinIA says:

    The US claims the first 200 nautical miles of ocean as being US territory, so, in theory, this crazy 100-mile zone doesn’t include all seaside cities. But what are the odd that no enterprising DHS lawyer won’t switch our definition back to something like 12, 20, or 24 nm, if they decided they wanted every phone and netbook in NYC?

  15. thatvisionthing says:

    @emptywheel: Do I have a right to know if I’m being x-rayed? I mean at airports you can choose the patdown, but at a border checkpoint as you drive through?

    And Feinstein is my senator. If I ask her that question, can I become what she called Awlaki to Brennan, “not an American citizen of whom America would be proud”?

    And if Feinstein and Brennan think I’m one of those people, then it just follows that they’ll be happy to list me, even duty-bound to list me?

    I’m thinking this is the house that fuck built…I better not ask anything.

  16. JTMinIA says:

    @emptywheel: Miami is not within 100 miles of another country’s land-mass, but because you always split a straight between countries evenly, it is easily within 100 miles of foreign territory. So I’d say that this idiotic new interpretation of the Bill of [No] Rights would apply to all of Miami.

  17. Jim White says:

    @bmaz: You might as well just head on over to DHS with all your devices now and get it over with…

    Edit: Oops, I keep confusing the homes of the Mild Cats and the Forkers. You should probably turn your devices over anyway.

  18. bmaz says:

    Home of the Gator whuppin Wildcats!

    How they gonna listen to all my calls and read my emails if I turn over my stuff?

  19. Tom Amitai says:

    Why would any corporation have to worry about this? After all, they aren’t subject to the same laws as the rest of us. They can launder drug money and help terrorists move their funds around, with no greater penalty than a delay in their bonus disbursement.

  20. Saltinwound says:

    Seattle makes the cut (in terms of actual distance, not miles on the I-5). So that’s Microsoft and Amazon

  21. thatvisionthing says:

    @bmaz: See, that’s the thing. Remember in The Wire, second season, when the union leader starved for money didn’t pay his cell phone bill for three months but the phone company didn’t cut his phone off because he was being tapped? Well, we’re all being tapped… if we all quit paying our bills, would the phones stay on anyway?

    I kind of like that. Remember in Inside Job* the guy saying, “The government’s just writing checks. That’s Plan A, that’s Plan B, and that’s Plan C.” So use that phone plan.

    *It’s in the opening credits at 1:35: https://www.youtube.com/watch?v=1505DBTp2eE

  22. Ford Prefect says:

    Judging by this pdf from the Ocean Commission, it seems sovereign space–for purposes regarding border control, immigration, customs, etc.– extends 24 miles out to sea. The other 176 miles is an economic zone, which makes sense because otherwise the Coast Guard would be making Customs inspections 200 miles out to sea.


    So it would seem the Rights Free Zone extends 76 miles inland from shore, or at least half the country’s population, methinks.

  23. Ford Prefect says:

    Oh, I have a question: If DHS doesn’t have to abide by the constitution within the Rights Free Zone, why would any other LEA? Does only Federal Law Enforcement have a special right to ignore the constitution, or does that apply to all other agencies (fed, state and local) as well?

    It seems to me that local and state agencies shouldn’t have to abide by it either. If so, why even bother with courts, aside from the fact rich people need them to sue each other?

  24. thatvisionthing says:


    I did a search — this is a search result blurb but it’s not in the link?


    George Spyros: Colbert Report: Dr. Robert Ballard on Why Ocean Exploration…
    Ballard makes the case that as the United States has legal jurisdiction to 200 miles out to sea from its coastlines around the globe (including places like Hawaii and Guam), half the territory belonging to America lies beneath the water’s surface; yet much of it remains unexplored.


    Robert Ballard TED talk 2008

    And as I will point out later in the presentation, 50 percent of the United States of America lies beneath the sea. 50 percent of our country that we own, have all legal jurisdiction, have all rights to do whatever we want, lies beneath the sea and we have better maps of Mars than that 50 percent.

    Just thinking, a lot of attention to the oceans since then with the poles melting. Maybe there’s a connection to new rules.

  25. thatvisionthing says:

    Also I want to clarify @6 — I wasn’t crossing the border, I was driving along the American side of the border. Everyone driving into San Diego via I-8 or 94 (or ?), say coming from Arizona, has to pass through these border checkpoints and … probes? I don’t know what to call them because they wouldn’t tell me.

  26. emptywheel says:

    @Saltinwound: A friend of mine works for Microsoft’s Research division. Some interesting stuff he works on. He also travels to China. With his normal old laptop, not any special security.

    So he’s doubly fucked.

  27. GreyGeek says:

    You need to come up to speed on how things are, liberalrob.

    Do a good search for ACLU’s “Constitution Free Zone” and learn that it is a 100 mile wide zone around ALL of our boarders in which 1/3rd of America lives. Some states, like Florida, Maine, Rhode Island, etc., are ENTIRELY within it.

    It effectively kills the 4th and 5th Amendments, and the 1st as well because it isn’t doing any good to protest this monstrous betrayal of our Bill of Rights. The DHS can only do this because the Judicial, Congressional and Executive branches have already signed off on it. These folks took an oath to “protect and defend the Constitution from all enemies, foreign and domestic, without mental reservations or purpose of evasion”. They lied, and they’ve been lying for years. Google “Rex84” to see how it began. This is what happens when we elect the same people for decades, because we buy into their pork barrel projects which are nothing less than buying our votes.

  28. Ken Hardy says:

    Hey, folks, a lot of youse guys are missing a key point about the whole border issue. DHS is claiming the border extends 100 miles INLAND FROM THE BORDER. In other words the majority–by a fur piece–of the US population.

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