All Your Data Belongs to the State

EspañolAs we begin a new year in the United States, we find civil liberties, and in particular protections against unreasonable searches, seizures, and breaches of privacy, in a most precarious state. Undoubtedly, the story of the year in 2013 was the disclosure of dragnet domestic surveillance on the part of the National Security Agency — a program confirmed by the classified leaks provided by former NSA contractor Edward Snowden. While the NSA’s spying is indeed massive in scope, it is in truth only a relatively small part of the larger surveillance state apparatus.

NSA spying, including leaked documents by Edward Snowden, was the story of 2013.

In fact, when it comes to suspicionless snooping and collection of our electronic data, the NSA is far from the only federal agency with their prying eyes in the game. Perhaps the most under-reported and least understood of these agencies is Customs and Border Protection, and the staggering authority they have been granted within the 100 mile radius of the border known as the “constitution-free zone.”

What’s worse is that courts in the United States have continually ruled these sorts of searches to be legal, despite the public’s growing knowledge and concern over electronic surveillance.

Source: Government Executive.

Just last week, a US district judge in New York upheld a 2008 CBP policy update that extended searches at the border and “border equivalents” (i.e., airports and inland checkpoints) to include electronic devices, such as smartphones and laptops. This decision by Judge Korman regarding data grabs near the border comes as federal courts continue to wrestle with the legality of the NSA’s bulk data collection program.

Interestingly, the legal rationale used by Judge Korman in ruling against the plaintiff, Pascal Abidor and the ACLU, is not unlike the arguments presented by NSA apologists. In short, they amount to “other countries do it too,” “no one really believes they have an expectation of privacy anymore,” and “you don’t really have any legal standing to sue anyway.”

While the country tries to make up its mind as to whether the NSA should have the ability to conduct this level of domestic surveillance for the sake of “national security,” the Department of Homeland Security and Border Patrol continue with policies that are, at minimum, as egregious in their disregard for privacy rights — and they do so largely unabated.

Civil liberty advocate organizations such as the ACLU and the Electronic Frontier Foundation are paying attention and seek change, but where is the public outrage and major media coverage comparable to the level of the NSA story?

No, the domestic surveillance programs of DHS and CBP are not part of some clandestine operation. They were not unearthed within a trove of pilfered classified documents by a maverick whistleblower. They are, instead, stated public policies, gradually codified into law — a sacrifice of personal liberty long since consecrated unto the altar of the national security state.

Many US Americans today howl at the thought of NSA agents remotely picking through their personal emails and text messages. Yet, many more still remain indifferent to the physical seizure of their cell phones and computers when they travel — even within the country — with the contents of their devices scanned, copied, and stored.

If we find the NSA’s suspicionless spying program to be outrageous and illegal, shouldn’t the same standard apply to DHS and Customs? Conversely, if “anything goes” with regard to searches within 100 miles of the border, why does this principle not extend to the whole of the country or to what the NSA continues to do? The fact that these questions are at all difficult for the government or the public to answer — or that they are even questions to begin with — is a startling sign of the times.

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