Probing Questions

At the risk of being crude I have to ask the following constitutional question: Without a warrant, does the government have the right to anally probe you?

Apparently, it does.

This post of Orin Kerr’s over at the Volokh Conspiracy [via Instapundit] points out that customs officials conduct warrantless searches as a matter of course. It is difficult to think of anything that would make one less “…secure in their persons, houses, papers, and effects…” than a body cavity search, yet any customs agent who has had a bad day can give you a cheap thrill with a latex glove without any judicial oversight. I for one would like some judicial oversight, especially in overseeing that they always follow the “no more than one finger” rule.

It is truly strange the things we tolerate just because, “that’s the way they have always been done.”

The curiously expansive powers of customs officials provoke no outrage and fear not because they are within keeping of the rest of Constitutional law but rather merely because we are used to them. If anyone suggested applying the same powers in a new context virtually everyone would freak.

In the current furor over the NSA’s monitoring of electronic communications I find it interesting that the contents of an email I send overseas are better protected than are the contents of, well, me, in the same circumstances. It has long been accepted that the act of crossing a national border changes your legal relationship with the state to a surprising degree. Anything material that you move across a border is liable to examination or seizure at the discretion of officials, yet non-material information sent across borders is completely protected.

In the Internet age, information is more likely to present a danger than are physical objects. The 9/11 attacks did not require moving any material across borders, just people, electronic money and information. Had the attackers been recruited within our country, then only information would have crossed the border. In the case of a cyberattack, no people within the affected country need to be involved at all.

We grant customs officials the power to poke inside our bodies at their discretion because it’s a power needed to prevent smuggling. (That and the fact that no judge wants to have to write up a search warrant for “Bob Smith’s rectum and adjoining orifices” on a daily basis.) We all just accept that a potential body-cavity search is part of international travel and go on with our lives. Similarly, we might have to learn to live with having the intelligence agencies monitoring our international communications to some degree.

[Update: here is list of other warrant-less searches with long precedence.]

11 thoughts on “Probing Questions”

  1. Not only that, but Customs officials can ask you any question they want and you are deemed obligated to answer. Their power of whim is quite expansive.

    I remember flying back from Canada in my Dad’s private plane and talking with the Customs agent at the first US airport we stopped at. After the usual questions, he started probing my father about his business and how much it was worth, how many people he employed. It clearly made my dad nervous, which wasn’t easy.

    BTW, most border agents are natural lie-detectors.

  2. So let me get this straight.

    Our spy agencies are supposed to spy on foreigners. That’s their job, and has been since the earliest days of the republic. And yet, when those foreigners are talking to American citizens, they’re suddenly off limits? Or are our spies only supposed to listen to the foreign side of the conversation and plug their ears when the American starts talking?

  3. You seem unaware of what NSA does “for a living,” and thus may be saying things that they might begin to do which in fact they have already been doing legally for some time.

  4. Doctor Wonder,

    Being a computer geek I am rather well informed about the NSA. I intended my post to contrast our collective acceptance of warrant-less cavity searches with our collective aberrance of having our emails read.

    People assess risk based not on the absolute risk poised but by their familiarity with the risk. Cavity searches by customs agents is familiar and thus non-threatening whereas email searches are unfamiliar and much more threatening.

  5. From what I can decipher from both divisive sides of media is that the debate should not really be about whether or not the president has the right to authorize the NSA to spy on domestic/international communications. He obviously does. I think the controversy lies in the fact that the powers that be did not feel obligated to obtain a search warrant. The warrant, which can be obtained after the fact within 72 hours, seems to be the only check on the executive power in this case. The administration’s lust for secrecy is, again, controversial, but is the argument linking the warrants to a decrease in NSA effectiveness viable? From what I can tell, the argument supporting Bush’s decision is that the NSA had been hindered by warrants and it was losing vital security abilities. I can only guess that this is because warranted searches leave a trail that can be reported and result in the terrorists obtaining more information about how they’re being investigated. However, this does present an interesting situation that I find rather deliberate. With the “left-wing” mainstream media reporting about America’s PR efforts in the middle east and the NSA tactics, they provide a very real target for Bush, who relies on terrorists not knowing the secrets of our government. To me, it’s a predicament: do we give the president full potential powers without any accountability, basically putting our full, blind faith in his governing abilities, or do we provide a few, however nominal checks to preserve some kind of executive accountability? This is oversimplified version of the state of things, but I think the debate would go this way if people weren’t so stubborn about their party affiliation. It is an interesting democracy we participate in.

  6. Strictly, I think they’ve only got the power to anally probe use when crossing a border or when suspected of having illicit drugs on our persons.

  7. Charles Martin,

    “Strictly, I think they’ve only got the power to anally probe use when crossing a border or when suspected of having illicit drugs on our persons.”

    Well, the NSA has power to read your communications “only” when you send an international communication.

  8. Charles Martin – Sorry, it’s not just drugs but rather any contraband. They can probe you if they think you have more than $10k of cash or cash equivalents deposited internally. The cash does not have to be illegal, merely undeclared.

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