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December 13, 2004
Civil liberties, wherefore art thou?
At least they aren't strip-searching grandmothers, but this tale by John Perry Barlow is quite unsettling. If you care about civil liberties, that is. I guess what we need to know is: which laws can we violate now without being treated like we are maniacal terrorists? And, since many of us sometimes find ourselves tempted to violate laws, how far can the government go to frighten us by making us feel like it can poke into our private stuff with impunity (for the 'greater good of society' of course)? Why don't we just start randomly searching people on the streets and asking them for government-issued identification cards? Oh yeah, something about the Constitution and the Fourth Amendment.
10:20 AM in Current Affairs | Permalink
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Comments
Hmm... I have some doubts here about the motives of JPB's story, but I imagine that random stops are allowable under Terry v. Ohio and Oklahoma v. ..... sorry drawing a blank on the Defendant's name, but it dealt with DUI stops. Plus, the police interest vis a vis airport security gives a smaller expectation of privacy.
'Sides, isn't it a sort of paradox: what laws are we allowed to violate? None, one would imagine.
Posted by: TPB, Esq. at Dec 12, 2004 3:34:12 PM
Well, one law you apparently aren't allowed to violate is hiring undocumented nannys. It's a law that no one seems to care too much about, except when you are being considered for a job requiring Congressional approval.
Posted by: Ernie at Dec 12, 2004 4:45:46 PM
It's sad to have to teach civil liberties law to attorneys, but here I go again.
Terry v. Ohio does NOT permit random stops. It requires "reasonable suspicion" that a crime is underway. Everyone who walks thru an airport does not create reasonable suspicion.
The leading Ninth Circuit case on airport stops is US v. Davis. It cut a narrow notch in the Fourth Amendment for airport searches "for weapons and explosives". A search conducted for any other purpose is presumptively unconstitutional, since there is no warrant, as well as no probable cause. The courts tend to agree that presuming "consent to search" in airports is unconstitutional.
Presumably some apologist lawyer would claim that there is no "reasonable expectation of privacy" in luggage that the government has announced that it will open and search with impunity. Following that argument, the government can search anywhere at any time, despite the Fourth Amendment, merely by announcing that it will do so.
I am unable to travel in this large country, because I refuse to be searched for an ID card. Fifty million sheep every year fall for this. You are one of them.
Posted by: John Gilmore at Dec 13, 2004 1:10:03 PM
Ernie, I could have cried at the stupidity of Kerik for doing that. How many times has that scandal come up in one political career or another?
John, I can't imagine how refusing to provide an ID card makes you not a "sheep," but, hey, if that's what floats your boat, all the better. I think you're s.o.l. on the argument, because of privacy issue which we disagree on - and I wouldn't use the 9th Cir. as an indicia of anything the Supreme Court would do - but I'm intrigued by your argument.
Nonetheless, I'd much prefer it if you lost.
Posted by: TPB, Esq. at Dec 15, 2004 4:38:32 PM
