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Thursday, October 7, 2010
Increased Search and Seizure Powers Coming?
Our Fourth Amendment is supposed to protect us from "unreasonable" government searches and seizures without "probable cause" and a "particular" description of the place to be searched and the things to be searched for.
The jurisprudence over the Fourth Amendment is vast. What is interesting is the subtle creep of attempts by government, at all levels, to be able to make these searches and get away with it...whether or not the practice gets evaluated in a court of law.
There is no formal proposal yet, no bill pending to evaluate, but there are reports (such as this one by Nat Hentoff calling for the Tea Party to get more active on constitutional rights) that the Obama Administration is planning to require communications providers to unscramble encrypted messages upon government request. (Disclaimer: For all we know, this is fearmongering rumor.)
The trend towards the government use of technology to compile personal information is unmistakable. The required searches of electronic devices at United States border crossings effectively compromises the confidentiality of attorney-client communications that are indicated (if not detailed comprehensively) on those devices. Now, the attorney-client privilege means that material covered by the privilege cannot be admitted into evidence, not without a waiver, but therein lies related questions:
Does carrying the data on a portable device across the border constitute a waiver by the attorney and imputable to the client?
Does the lawyer whose device contains the data compromise his client? Does the lawyer commit malpractice by potentially endangering his client?
Is there an expectation of privacy when one attempts to cross the border? (Implicit in an answer to the negative is the principle that the protections of the Constitution extend only to, and not at, the border. But then, if the jurisdiction of the Constitution stops before the border, because it is not effective at the border, then isn't it a contradiction to be subject to the jurisdiction and power of the federal government's Executive Branch at that same border?)
There are some basic and unavoidable facts. Our lives have become increasingly subject to being chronicled. The data may be disparate and most undoubtedly benign -- although possibly embarrassing. However, doesn't it become increasingly obvious that our personal security, privacy, financial security and our legally privileged communications have become increasingly dependent on the mere obedience to the law of anyone with access to that data?
Many commentators and government officials take the attitude that the public should -- no, in fact, it is obliged -- to trust in the obedience to the law of those in power or with these powers. Questions, skepticism or opposition to this attitude is often met with the most powerful word to invoke in America today: Terrorism. The mere mention of that word or its derivatives (e.g., terroristic, terrorist), or its use in a phrase, implies and imputes to the questioner the lowest of motives, such as being treasonous, a terrorist sympathizer or, at the very least, someone soft on crime.
But if such obedience could be taken with a grain of salt, we would not need an ever-growing corpus of laws at all levels to presumably deter misconduct or criminal activity, including many statutes specifically prescribing crimes for official misconduct by the growing armies of people working within our government bureaucracies, would we?
Eric Dixon is a New York lawyer and president of Eric Dixon LLC. He has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon handles litigation, mediation and negotiations for small businesses and individuals and consults on other legal matters including business due diligence, government investigations and regulatory investigations, of which many involve issues of civil rights and constitutional rights. Mr. Dixon is available for comment or consultation at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com.