Ernenwein & Johnson, LLP

TWO-THIRDS OF AMERICANS LIVE IN THE 4TH AMENDMENT EXEMPTION ZONE

Last week, Judge Edward Korman confirmed in his dismissal of Abidor et al v. Napolitano et al that federal authorities could search the electronic devices of any American within 100 miles of any border without the need to obtain a warrant.

In that case, an American student, Abidor, was stopped at the border after having visited the Middle East and was forced to unlock/surrender his laptop. Despite nothing illegal actually being 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.

8 USC §1357 outlines the powers of border officials and grants federal agents the power to perform warrantless searches within a “reasonable distance” of the United States border. According to 8 CFR §287.1 of the Attorney General’s regulations, “reasonable distance” is defined as “within 100 air miles from any external boundary of the United States.” In the 2008 Supreme Court ruling of US v. Arnold, this exemption zone was expanded to include the search of digital devices in addition to physical baggage.

So what’s the problem? According to critics, about 233 million—or roughly two-thirds of the entire population—lives within 100 miles from an international border and are, therefore, subject to search and seizure without the use of a warrant. In fact, some East coast states, such as Maine, Vermont, Connecticut and Florida fall entirely within the 100-mile “exemption zone.”

Critics argue that the search and seizure powers asserted by the government create the perfect situation for abuse, and though it is unlikely that large numbers of random people will have their digital devices seized by the government, it is highly likely that this power will be used to target those who challenge the status quo, such as journalists or political activists.

Below is a map created by the American Civil Liberties Union to demonstrate the so-called “Constitution-Free Zone” of the United States.

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