Liberalism is strongest when it grants our people the illusion of rights. In the courts, the government is either forced to grant us our rights or codify its tyranny. What is necessary is a big-balls and big-brain alliance.
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Part 1: Your Rights at the Airport
Most Americans have some vague idea that our rights at the airport differ from the rights we enjoy during our day-to-day lives. In a nation as large as the United States, much of the population is necessarily funneled through these purported “Fourth Amendment-free” zones. As our families disperse and young people chase employment and prestige in a handful of urban centers, airline travel can no longer be considered a luxury. With airline travel, the United States uses economic dispossession and the break-up of families to exert ever-more control over the lives of its subjects.
Recent searches of dissidents
Much of your lack of rights at the airport is illusory. An illusion very much fostered by the federal government to make you feel powerless when the FBI or TSA demands to search your cell phone. Recently, TSA agents harassed Mike Enoch by taking him to a private room and subjecting him and his bag to additional searches. According to reports from other public figures on the Dissident Right, his experience is not uncommon. Another individual had FBI agents waiting for him at the airport who then took his phone into another room and presumably copied its contents.
The U.S. Supreme Court ruled 5 years ago that a warrant is generally required before law enforcement may seize a cellphone, even when the cell phone is seized incident to arrest. Riley v. California, 573 U.S. 373, 401 (2014). Federal circuit courts have since limited searches of electronics at the border, but have not ruled on searches of domestic air travelers. In 2017 domestic air travelers increasingly began to report that the TSA searched their electronic devices. On December 20, 2017 the American Civil Liberties Union (ACLU) launched a Freedom of Information Act (FOIA) request for policy manuals, equipment specifications, and training documents related to TSA searches of the electronics of domestic airline passengers.
When the FOIA request was denied the ACLU filed a lawsuit for the information on March 12, 2018. The TSA ultimately provided a letter stating: “TSA does not search electronic devices for the purpose of examining or extracting electronic content that may be contained on the device, and screening personnel are not provided with any equipment to do so.” However, the letter was dated December 19, 2018 and the TSA’s policies may have since changed.
Interestingly the ACLU only made the letter public six months later, on June 19, 2019, perhaps as stipulated when the lawsuit was resolved by settlement. My belief is that the letter is only technically true in the sense that the TSA will just have the FBI conduct the forensic search of your phone.
What is different at the airport?
Your Fourth Amendment rights are modified at the airport, but you are not completely stripped of legal protections. At the airport the government no longer needs “probable cause” or a warrant to search your bag so long as the search comports with the legal standard of “reasonableness.” United States v. Skipwith, 482 F.2d 1272, 1279 (5th Cir. 1973). The government may also conduct a temporary detention, called a “Terry stop” of your bags and your person. See Top of FormFlorida v. Rodriguez, 469 U.S. 1, 5 (1984).Bottom of Form Such a temporary detention for questioning in during an airport search is permissible because of the public interest involved in the suppression of illegal transactions in drugs or of any other serious crime. Florida v. Rodriguez, 469 U.S. 1 (1984) (internal citations omitted). The Ninth Circuit has limited airport screening searches to being “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and]… confined in good faith to that purpose." United States v. Aukai, 497 F.3d 955, 962 (9th Cir. 2007) citing United States v. Davis, 482 F.2d 893, 913 (9th Cir. 1973).
If you are confronted, especially after you disembark your flight, do not be afraid to ask, “am I being detained?” There are few things cops cannot lie to you about, but one of those is if you are being detained. When the TSA attempted to screen a man, Kahler Nygard, after he had disembarked from his flight, the TSA sought to intimidate him into a “consensual” search but did not pursue him after he walked away. If the government believes they have reasonable suspicion at an airport, they can generally conduct a Terry Stop where they will tell you are not free to leave. If you are not being detained, your best option may be just to walk away.
If the detainment or its extent is invalid, the evidence gathered will be inadmissible. For example, in United States v. Place, 462 U.S. 696 (1983) the Supreme Court found that when “reasonable suspicion” but not the higher standard of “probable cause” exists at an airport, luggage may be briefly detained for a canine sniff test, but not seized for 90 minutes and transported elsewhere for a canine sniff test. Likewise, in Florida v. Royer, 460 U.S. 491 (1983), officers brought a defendant to a small room in the airport without returning his driver’s license and ticket. The Supreme Court found that the defendant in Florida v. Royer had been detained without reasonable suspicion and therefore his consent for officers to search his bags was invalid.
It is worth noting that your right to an attorney, and your Fifth Amendment right to remain silent does not disappear at the airport. You also have the right to film the TSA. According to the TSA: “TSA does not prohibit photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or sensitive information is not revealed.” Hopefully the next one of our guys to be harassed by the TSA can livestream it.
If you are a public dissident, you have a moral duty not to voluntarily hand over your electronics. The nebulous nature of federal conspiracy law means the slightest connections between dissidents can constitute a conviction. An Amazon order history of protein supplements and knee-pads may be sufficient to send half a dozen men away for conspiracy to riot.
The very first exhibit introduced in the case of United States v. Daley, 378 F. Supp. 3d 539, (W.D. Va. 2019) (The Virginia RAM case), is a picture of the men of the Rise Above Movement reading banned books together. Any pictures on your phone of you and your friends together is a potential conspiracy charge. As James Fields learned, any meme you have saved of Adolf Hitler hanging out with animals will be shown to a jury of cat-ladies.
Part 2: Your Rights as Citizen at the Border
A legal no-man’s land
Generally, at the border Customs and Border Protection (CBP) may stop and conduct a search of your belongings or car without any suspicion whether you are a citizen or non-citizen (termed “suspicionless” searches). United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). ACLU staff attorney Nathan Freed told Vice that border officials may ask you to provide your device’s PIN or password, and if you refuse, CBP may seize your electronics for later analysis. Unfortunately, the complete lack of case law prevents any clarification as to CBP’s authority to make such a demand for a passcode, and the criteria CBP uses to determine if a forensic search is necessary are not public.
Searches of electronics at the border have risen rapidly in recent years. In Fiscal Year 2017, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices, compared with 19,051 searches in Fiscal Year 2016, and 4,764 searches in Fiscal Year 2015. Running the clock back to the last year of the Bush Administration, between October 1, 2008, and August 11, 2009, approximately 1,000 laptop searches were performed, and just 46 were consider by CBP to be “in-depth.” Notably a December 2018 report by the DHS Inspector General found that 67% of border searches of electronics were improperly documented.
The Supreme Court has yet to resolve whether searches of electronic devices constitute “routine border searches” which require no individualized suspicion, or “non-routine border searches” which require the “reasonable suspicion” standard of an airport search. The line between routine border searches and non-routine border searches may be difficult to determine with an example of a non-routine search being an overnight detention for monitored bowel movement followed by rectal examination. U.S. v. Molina-Isidoro, 473 U.S. 531, 541. The Supreme Court has declined to extend the routine/non-routine distinction to vehicles, denying that particularized suspicion was necessary to disassemble and search an automobile’s gas tank at the border. United States v. Flores-Montano, 541 U.S. 150 (2004).
Only two of the thirteen federal circuit courts of appeals have ruled on the issue of searches of electronics at the border. The Ninth Circuit in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc) and the Fourth Circuit in United States v. Kolsuz, 890 F.3d 138 (4th Cir. 2018) have ruled that the search of electronic devices at the border is a “non-routine” search and thereby requires “reasonable suspicion.” Kolsuz only restricts forensic searches of electronics, as the Fourth Circuit approved “suspicionless” manual, on-site inspections of computer contents that would have been accessible to any user. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). As more federal circuit courts of appeals rule on the issue and perhaps create a circuit split, a Supreme Court ruling that will create a uniform national law becomes more likely.
Troubling trends in border law
If you refuse to allow a forensic search of your electronics, do not be surprised to encounter additional delays. The detention of a U.S. Citizen cannot be unlimited in duration. See United States v. Martinez-Fuerte, 428 U.S. 543 (1976). But the Second Circuit has permitted “routine” border searches of up to six hours. Tabbaa v. Chertoff, 509 F.3d 89, 100 (2d Cir. 2007). During that time agents may conduct additional “routine” searches in an attempt to build to the “reasonable suspicion.” Keep in mind that most of your protections go out the window if you consent to let CBP search or clone your electronics. Florida v. Rodriguez, 469 U.S. 1, 6 (1984).
Unfortunately our system requires the exact same standard of suspicion to search the laptop of a man convicted of “two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of child molestation” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) as any other citizen. The U.S. Attorneys we face are intelligent enough to use prosecutions of child pornographers as battling rams against the Fourth Amendment. Liberal celebrate the fact that convicted and released felons have the same expectations of privacy as any other citizen. However, the effect is to compel courts to reduce the protections for all, in order to pursue child pornographers, human traffickers, and drug dealers (should the state even choose to do so).
The dissent in Cotterman, notes the potential for abuse of the “reasonable suspicion” standard. Judge Smith of the Ninth Circuit laments that “the majority pins reasonable suspicion on the TECS [sex offender database] alert, dismisses out of hand the numerous factors weighing against reasonable suspicion, and paves the way for a government database to target entire categories of people without any individualized suspicion of the particular person to be stopped.” United States v. Cotterman, 709 F.3d 952, 990-91 (9th Cir. 2013) citing Sigmond-Ballesteros, 285 F.3d at 1121 (9th Cir. 2001) (internal quotation mark omitted).
The recent decisions in Cotterman and Kolsuz all-but confirm that CBP can subject Pro-Whites to a forensic search of their electronics. Every one of us knows in our gut that the government maintains a database of White Nationalists or considers White Advocacy to be sufficient grounds to be included on a watchlist. Under Cotterman, inclusion on such a list of White Nationalists, could in itself justify the “reasonable suspicion” sufficient to copy an electronic device.
Regardless of recent precedents, if CBP searches your laptop and cellphone and you appeal a resulting conviction, it is incumbent upon you to take that lawsuit to the Supreme Court. Keep in mind that U.S. citizens have a right to have an attorney present during border questioning. The only way we can clarify our rights under the present regime is to force the government into a court of law. Even an unfavorable outcome forces the United States to put onto paper its reduction in our sacred rights.
Government watchlists under scrutiny
Recently one of the several federal watchlists was challenged in court by the Council on American-Islamic Relations (CAIR). The DHS’s Terrorist Screening Database ("TSDB"), includes 1.2 million individuals, 4,600 of whom are U.S. citizens and residents. Although media outlets have trumpeted the seeming elimination of the TSDB with pieces titled: “The FBI’s terrorism watch list violates the Constitution, federal judge says” in the Washington Post and “The FBI's Infamous List of 'Known Terrorists' Is Ruled Unconstitutional” in Reason, it would be more accurate to say that the list in unconstitutional in-so-far as it fails to provide an adequate remedy for citizens to challenge their inclusion on the watchlist per the decision in Elhady v. Kable, E.D. Va. No. 116CV375AJTJFA, 2019 WL 4194545 (E.D. Va. Sept. 4, 2019).
The current process of appealing your inclusion on the TSDB amounts to filling out a complaint form and asking the government to “pretty please” review your place on the watch list. If this ruling is not stayed, I would love to see one of our guys who has been harassed at the airport pursue whatever remedy process the government puts forward. The new process, to be established subject to future briefings by CAIR and the DHS, will likely include the basic elements of Procedural Due Process found missing: (1) “notice of the reasons for the depravation,” (2) some information regarding the “evidence against” the person injured, and (3) “an opportunity to present [the deprived person’s] side of the story.” Elhady v. Kable, E.D. Va. No. 116CV375AJTJFA, 2019 WL 4194545, at *14 (E.D. Va. Sept. 4, 2019) citing Jones v. Flowers, 547 U.S. 220, 229, L.Ed.2d 415 (2006).
Under a revamped appeals process it is likely: (1) the DHS will have to tell you if you are on the list, (2) tell you the reason why, and (3) provide some sort of way to argue that you are not a threat. Even if we cannot successfully get off these lists, this decision may provide valuable information on who is under surveillance and what activities the feds consider particularly threatening.
Rob Rundo recently told TRS that he was on the TSA Secure Flight Program list after the first Pro-Publica article on the Rise Above Movement (RAM) but before facing charges related to RAM’s defense of Trump supporters at a March, 2017 MAGA rally. The Secure Flight Program list is the same list Mike Enoch is on. Your status on the list results in a TSA agent righting “SSSS” on your boarding pass and subjecting you to additional screening. Whether acquittal will affect Mr. Rundo’s status in the Secure Flight Program is an open question. However, it may soon be possible for those on the Secure Flight List to challenge their status and possibly uncover some clues as to how journalist’s “open source intelligence” is treated by the federal government if the government applies Elhady v. Kable to the Secure Flight Program.
The path forward
Liberalism is strongest when it grants our people the illusion of rights. In the courts, the government is either forced to grant us our rights or codify its tyranny. What is necessary is a big-balls and big-brain alliance. A symbiotic relationship between brave men ready to assert their rights at great risk to their reputation, finances, and bodies, and a crop of idealistic and crafty lawyers ready for the gangster tactics and outright illegal behavior of opposing counsel. The courts will be our battlefield and we intend to wage Total War.