Setting the record straight on “Constitution-free” border zones

BY MICHAEL RICONDA

Most of us have been at a border at some point in our lives and have faced the expected scrutiny that greets anybody leaving or entering the country. At this point in history, when illegal immigration, the drug wars and terrorism are on the minds of just about every border patrol agent that is to be expected, butut would you expect to face that same level of scrutiny in Rockland?

Some have been arguing you should. With a new ruling in a federal court, critics are claiming law enforcement does not even need the bare requirement of reasonable suspicion to confiscate and examine electronics in a rule which might apply up to 100 miles inland of the country’s land and sea borders.

Plaintiff Pascal Abidor was stopped by U.S. Customs agents on a train travelling from Canada to the U.S. Abidor, a doctoral student specializing in Middle Eastern affairs, was found to have pictures of Hamas and Hezbollah rallies on his laptop, resulting in its confiscation and rounds of questioning regarding his citizenship and the purpose of the information he had been compiling.

In a ruling handed down last month, U.S. District Judge Edward Korman stated that reasonable suspicion was not required for such searches of laptops, phones and other electronic devices at international borders. In other words, border patrols could search devices on a whim-even on a train with no established checkpoints-so long as it travels over the border.

The bad news is that this is only technically true because unfortunately, if you give some people an inch, they are bound to take a mile. Section 287(a)(3) of the Immigration and Nationality Act allows for searches within an area adjacent to the border as defined by the Attorney General, and 100 miles seems to be the area chosen for the “border exception.”

In this case, the government has taken 100 miles. The ACLU, who first coined the term “constitution-free zone,” mapped out the zone, showing an area containing two-thirds of the entire U.S. population and some of the nation’s biggest cities can be covered by border searches. Sitting only a forty minute drive north from New York and well within the zone is Rockland County.

Hence, it might only take a little justification to set up a legally-permissible but nonetheless intrusive border checkpoint in the area. It is not inconceivable; Border patrol agents have been extending their reach with inland immigration checkpoints on the road and in ferry terminals and train stations.

The question posed in this case is how far those agents can go, and this is where you can rest somewhat easier. The courts appeared to have anticipated such abuses, so court precedent used in the Abidor ruling does limit warrantless searches to borders and their functional equivalents, such as airports and shipping centers. Legally, any inland stop is an “administrative stop” which can only addresses a border security concern and still requires reasonable suspicion.

Even at the border, the most recent rulings are mixed on the reasonable suspicion requirement and the matter will likely be settled by the Supreme Court. For now, though, it is highly unlikely that anybody with U.S. Customs will begin busting down doors in Rockland and seizing electronics.

However, the recent case presents what might be considered a non-traditional stop. Abidor was moving further inland from the border (otherwise a U.S. court would not have jurisdiction) and was not at any sort of checkpoint. If the train itself was a transit point, then it might be understandable, but you would have to argue a “transit point” can be defined as a long pathway that goes over a border. If that is the case, why not the full expanse of every border-crossing road in the country? Why not the roads connecting to them?

Abidor’s case does not fit the picture of a typical border search and Korman was naïve to treat it as such.

In the end, we do not know exactly what our rights at the border look like, and in spite of precedent, we do not have a good idea of what they look like beyond the border. Though the 100 mile zone holds no immediate threat to civil liberties beyond immigration and homeland security checkpoints, it is a matter to keep our eyes on, especially given the Supreme Court’s permissiveness toward governmental prerogative under the regime of “Homeland Security.”