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.]