But considering there is apparently no oversight, these agents figure they have nothing to lose by violating your Constitutional rights to record them as they record you.
Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.
The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.
At the Jackman, Maine, border crossing into the United States, I get interrogated about what I have in my car. And not just the three juicy Canada-bought clementines, either.
“What is your relation to these children?” brusquely demands the young border guard who examines my two daughters’ passports and my own.
They do have their mother’s last name, and they do look somewhat Asian. I’m white. Maybe he’s curious. So I don’t give him any lip.
“I’m their dad.”
“Where is their mother?”
“At home, I guess.”
“Do you have a letter with her permission for you to travel with them?”
“I wasn’t aware that I needed any such thing,” I say. “Are you telling me I do?”
He clearly doesn’t appreciate even that tiny bit of pushback.
“Never mind. Follow me into lane one, please. We’re going to have to search your vehicle. Please give me your driver’s license.”
I hand it to him, then park the car in the area he indicates.
“Now please get out of the car and follow me inside.”
I grab my iPhone off the dash, hit the record button, and tell him politely: “For my protection, officer, I’m now recording what’s happening.” He stays silent. I step out of the car, and without warning, he physically attacks—that is, he wrestles the phone from my hand, twisting my arm in the process. I’m stunned.
“Officer, I do not give you permission to take my phone.”
“I don’t need your permission!” he barks. “Get inside and sit on the bench. With your kids.”
He disappears. With my phone.
Inside the building, I ultimately get a lecture from two other border patrol officers—friendlier, but not by much—about why recording is not allowed.
“If you upload it or share it in any way, people are going to know what kinds of questions we ask,” one of them says.
That makes no sense, I say. “As a journalist, I can tell the world, in writing, what questions you ask. In the U.S., anyone has that right. That’s certainly not against the law. What’s the difference between that and recording the conversation?”
A moment’s hesitation.
“Officer safety and security.”
But by forbidding us from recording, they are compromising citizen safety and security against thuggish Border Patrol Agents.
And that whole “officer safety and security” excuse has become a tired-old cliche that is not based in reality.