Adonis Diaries

Posts Tagged ‘civil rights groups

What is this  “4th Amendment Exemption Zone”? Two-Thirds of Americans Live in… 

Josh Sager, The Progressive Cynic, posted on January 6, 2014 (and selected as one of today’s posts)

Two-Thirds of Americans Live in the 4th Amendment “Exemption Zone”

Last week, Judge Edward Korman—a Reagan appointee to the United States District Court for the Eastern District of New York—confirmed that federal authorities can search the electronic devices of any American within 100 miles of any border without the need to obtain a warrant.

The Abidor et al v. Napolitano et al case, which Judge Korman just dismissed in favor of the government, focused upon warrantless searches of laptops without suspicion at the border.

In this case, an American student was stopped at the border after traveling to several Middle Eastern countries and was forced to unlock/surrender his laptop computer.

Despite the fact that nothing illegal was found on the computer, it still took nearly two weeks for Abidor to recover his laptop (which held the only copy of his thesis paper).

While dismissing this case, Judge Korman conceded to the government’s assertion that there is a 100 miles zone inland from every international border where federal authorities to have the ability to search and seize digital devices without warrant or cause—his only caveat to this concession was that

“if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”

aclu

In short, if you live in or are traveling through the orange-shaded portion of this map, it would be legal for federal authorities to stop you, force you to give them the password for your laptop, and seize your files—no warrant would be needed and there would be no certainty that you would ever recover your files or your digital devices.

Due to the geography of the United States, the 100-mile exemption zone for searches has the potential to circumvent the 4th Amendment protections for a significant majority of the American people.

In addition to the fact that many major population centers lie within 100 miles of the coast, several states are entirely covered by this zone (ex. Florida, Maine, Vermont, and Connecticut).

The Border Exemption

Federal authorities have the ability to search people who wish to enter the United States—this authority is written into federal law and has been confirmed by the Supreme Court.

Border Biometrics

Under the provisions of federal law which outline the powers of border officials (8 USC § 1357), federal agents have the power to perform warrantless searches within a “reasonable distance” of the US border.

The term “reasonable distance” is defined under Attorney General’s regulation 8 CFR § 287.1 as “within 100 air miles from any external boundary of the United States.”

Several Supreme Court cases (ex. Almeida-Sanchez v. US and US v. Montoya De Hernandez) have upheld this “border exemption” to the 4th Amendment as a function of national sovereignty.

In 1979, the Supreme Court decision Torres v. Puerto Rico included a succinct explanation of the justification for the border exemption:

“The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.”

In 2008, this exemption zone was expanded by the Supreme Court to include the search of digital devices in addition to physical baggage by the US v. Arnold ruling.

americanprogress

When past case law is synthesized with current federal law, the result is the federal government asserting the right to search the digital devices and vehicles of any American within 100 miles of a border, without having to get a warrant or show reasonable suspicion that the person in question is committing a crime.

Conclusion

Judge Korman’s ruling in Abidor v. Napolitano et al is just the most recent manifestation of creep in the federal government’s ability to circumvent constitutional protections.

By classifying entire states and cities as border zones, federal authorities are able to get around the 4th Amendment in a way that would likely horrify the authors of the Constitution—after all, at the time of this country’s founding, almost everybody lived along the coasts and this 100-mile “exemption zone.”

The search and seizure powers that the government is asserting (and the courts are confirming) create the perfect situation for abuse. It is unlikely that large numbers of random people will have their digital devices seized by the government, but it is highly likely that this power will be used to target those who challenge the status quo.

Theoretically, the federal government could seize the digital devices and data of a reporter like Glenn Greenwald if he was visiting a coastal city like New York for a conference with other reporters or a meeting with sources.

Federal agents could stop Greenwald in his hotel lobby, take his computer, and mine it for information on sources, contacts, and future stories. Because of the border exemption, neither the 4th Amendment protection from unreasonable searches and seizures, nor the 1st Amendment protections on the press would help Greenwald.

In addition to threatening journalist, these searches and seizures are a threat to political activists (ex. people protesting corruption), academics who have ideas that are not popular to those in power (ex. Professor Juan Cole during the War on Iraq) and even political candidates who threaten the already powerful (Joseph McCarthy would have loved these searches).

Shredding-the-Constitution

Unless the courts side with civil rights groups over the national security apparatus, we will wake up one day and face the fact that our constitutional protections are just words on a page that no longer have any real meaning.

Today, the government may claim that the 4th Amendment must be circumvented in these zones for security and expedience, but what about tomorrow?

If it is okay to curtail the 4th Amendment in these zones, then what is stopping the same argument being used to attack the 5th, 6th and 8th Amendments in these zones tomorrow?

Put simply, the assertion that entire cities and states are “exemption zones” for constitutional protections is nothing more than an end-run around the Constitution and something that no honest jurist should support or condone.

Circumventing censors in the Arab States and everywhere? Is free expression the baseline of all rights?

Lebanon is a place where everyone has the freedom to shout and gather… But what

is the use if no one in the public institutions is listening?

Protests are frequent, and roads and highways blocked by burning tires…Bu twhy change and reforms are so rare, mangled, shortsighed, unfulfilling?

In its political and social system that divides the population into 18 different publicly recognized sects, every party has means to express itself, but security and religious authorities can stop anyone who challenges the system or those who are powerful in it…

Three weeks ago, news updates proclaimed that a bomb dropped by a fighter jet killed the 11 Lebanese civilians who were hijacked by Syrian insurgents over 3 months ago.

One Lebanese TV channel dispatched reporters to visit with the bereaved families and get Hot coverage.  . The immediate reaction of Lebanese tribes was to kidnap 40 Syrians and a Turkish citizen.

The news concerning the death of the Lebanese turned out to be false. Even if the news were accurate, is this sudden confronting the bereaved families publicly part of free expressions?

Censorship played a crucial role in Lebanon following the civil war… Civil rights groups are challenging censorship and claim that free expression is the baseline of all rights…

Andrew Bossone published an article in the Egyptian Weekly Al Ahram:

“Lebanese artists and organisations discussing matters of free expression say State security has considerable power, but this institution does not use a clear legal framework to support its decisions.

The Censorship Bureau of the Directorate for General Security reviews scripts for films or plays before, during and after production, and the law is vague enough to allow censorship on whim rather than on legal reason. Free speech advocates say censorship is holding back society from being unified and healing divisions from the civil war.

Ayman Mhanna, executive director of the Samir Kassir Foundation, says: “Censorship regulation in Lebanon is out-dated. It deprives artists of the ability to express their ideas as they want. Censorship prevents people from looking at other opinions and other perspectives. Ultimately, it leads to extremism, because you would only have one set of ideas that can be voiced.

After the civil war, we chose the path of amnesia and amnesty, looking back at our years of conflict. If we didn’t have that censorship, artists would have had more ideas to dig deeper into the wounds of Lebanese society.

Free opinions wouldn’t have healed them directly, but it would have contributed to a positive process that we’ve been denied so far in Lebanon.”

Beirut is generally considered a place of creative expression: Lebanon proceeded after the civil war without addressing the sectarian tensions that actually created the war. These divisions are clearly in the forefront of disputes in the country that at times bring arms to the street.

Lea Baroudi, general coordinator for the March Lebanon organisation that addresses censorship, says: “Since the war, we have lived in a taboo environment where we cannot talk about the war, we cannot talk about our differences, because the leaders thought that this was a solution to our problems…

“Freedom of expression is the right that accompanies all other rights. If you don’t have freedom of expression and you don’t have the freedom to say or advocate for what you believe in, what are we left with?”

Advocates of free expression admit that allowing any form of speech is not necessarily going to resolve all the country’s problems, but it is a starting point.

Art is often a vehicle for tackling sensitive issues.

Picasso’s “Guernica” explores the tragedies of the Spanish Civil War, and Omar Khayyam’s Rubaiyat confronts the authority of religious clergy, for example.

Expression may also be a means of unity by allowing open debate that allows a diversity of opinions.

Many issues have been deemed too sensitive, and expression that approaches specific red lines is often prevented from being produced, or in legal terms, the government exercises prior restraint.

According to Mhanna, these lines include talking about the president (both as an individual and an institution), the armed forces, Syria and Hizbullah, friendly nations (in particular Arab countries), enemy countries (specifically Israel), homosexuality, and incest.

Religion is also deemed a sensitive topic, and the Censorship Bureau typically sends content related to it to institutions such as Dar Al-Iftaa and the Catholic Media Centre.

Both Baroudi and Mhanna are advocating for the Censorship Bureau to be replaced with a board that would give ratings according to a system, as for films. This would head off the prior restraint moves of the government.

Regardless of censors, many artists in Lebanon are confronting sensitive issues. This is no more widespread than in music, such as hip-hop. Many Lebanese rappers talk about political matters, even if they do so using metaphors and language that avoids directly naming names.

Jackson Allers, a music promoter in Lebanon and editor of the World Hip Hop Market online magazine, says rappers have thus far avoided censors because their music has yet to reach mass appeal.

Allers says: “They feel empowered to say what they want to say and without having to worry, but I don’t think they realise they’re in a honeymoon period where they haven’t been tested and I feel like that’s coming and it’s approaching more quickly then they thought because of the proximity of Syria, because of the revolutions that are playing out elsewhere…”


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adonis49

September 2021
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