Border and airport security are today’s hot-button Fourth Amendment issues, but whether body scanners and demanding cell phone access is unAmerican remains to be determined by the courts.
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Without the Declaration of Independence and the Constitution of the United States of America, the United States of America would not exist. As such, the values laid out in these two documents are, by definition, American values. And any values held in opposition to the values in these documents are, again by definition, unAmerican.
The Fourth Amendment
A person and their property may not be searched without probable cause. This right is regularly pushed against by law enforcement for reasons of public safety, and the courts regularly have to address what qualifies as probable cause and under what conditions this applies. For example, is it an unreasonable search to force an airline passenger to submit to a metal detector or millimeter wave scan? Is it unreasonable to pat down a passenger whom is shown to have something on their person or who refuses to pass through a scanner?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Generally speaking, courts have ruled that the general welfare of the public overrules individual rights in these cases and that these types of security technologies qualify as a reasonable search. On the other hand, strip searches, putting children through a millimeter wave body scan, and other, more intrusive scans have usually been considered to be unreasonable by courts. And there are individuals who consider millimeter wave body scanners to be unreasonable searches but are OK with metal detectors. The line between acceptable and unacceptable is a matter of law and national values, and so the ongoing debate is both healthy and necessary.
Safeguarding the general welfare of the public is a necessary function of the government and an American value. So is the protection of an individual’s right not to be unreasonably searched. There is a natural tension between these two American values, and both sides of the argument are arguing from a legitimately American position. In this case, as with the Second Amendment, the extremes are where we find unAmerican values. Individuals who believe that any airport security at all is an unreasonable search are expressing an unAmerican value. Individuals who believe that any airport security procedures is automatically legal and acceptable are also expressing an unAmerican value.
This same tension exists at border crossings. Lately, border patrol agents have started demanding that individuals unlock their phones or computers and allow access to their social networks, text messages, and the like. This has been applied not just to foreign visitors to the United States, but also to legal permanent residents (green card holders) and occasionally to US citizens. While the Supreme Court has ruled that searches in general are reasonable at border crossings (aka the “border search exception“), it has yet to rule on the issue of electronic devices such as laptops and cell phones, given that searches of such devices are much more intrusive than a search of a vehicle. Federal appeals courts have ruled variously, however, and so it is quite likely that this issue will reach the Supreme Court eventually. A bipartisan bill in Congress (introduced into both houses in early April) might make this issue moot if it passes and if Trump either signs it or, more likely, his veto is overturned.A greater question exists over whether the border search exception applies beyond the immediate area of the border. Since 1953, the border region of the US has been defined as anywhere within 100 miles of a land border or coastline. Within this region, border agents have been given broad authorities by the government that often run against the protections of the Fourth Amendment. However, these authorities have not generally be challenged in courts, and in some cases lower courts have ignored Supreme Court rulings. The extra-Constitutional authorities given to border agents within this region, and occasionally beyond this region as well, are unAmerican.
What else qualifies as an unAmerican search? Does using an infrared camera to look for hot houses that might indicate marijuana grow operations qualify? According to the Supreme Court in Kyllo vs. United States, it’s a search and thus required a warrant. Law enforcement that doesn’t abide by this ruling, or private entities who use thermal imaging without permission, are engaging in illegal, unconstitutional, and unAmerican activities. Placing cameras in dressing rooms, even with the laudable goal of deterring shoplifting, are illegal and unAmerican according to Katz vs. United States.
Even something a presumably simple as parental trackers for kids using their phones is borderline unAmerican. The issue is that the Supreme Court has ruled that law enforcement may not use GPS or similar tracking devices to track someone without first getting a warrant. Parents who are tracking their minor children have the right to do so, since their children are not yet adults with the full rights and responsibilities thereof. But continuing to track an adult child without their knowledge and permission is illegal, against the Fourth Amendment, and therefore unAmerican.
There is a tremendous amount of case law regarding the Fourth Amendment. For more information, I recommend starting with the Judicial Learning Center’s resources.