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Defending Privacy Against Border Defenders

Interstates 89 and 91 intersect near White River Junction, Vt., about 90 miles away from the Canadian border. A mile or two farther south, U.S. Customs and Border Protection officers occasionally set up roadblocks on I-91.

I have been stopped several times in recent years as I drove between my homes in Vermont and New York. Each time, a uniformed agent politely inquired about my citizenship. I was always swiftly waved on my way after I replied, “American.” Being white and fluent in English probably didn’t hurt.

But my acquiescence to these unwarranted interrogations did hurt — it just happened to hurt people who do not look or sound like me. So I am no longer going to respond if a border agent questions my citizenship when I am nowhere near a border.

As The New York Times recently reported, I-91 is not the only place where immigration officers are extending their reach. Passengers on trains and buses are routinely stopped miles from the Canadian border, questioned about their citizenship and asked to produce documentation. People simply traveling from New York to Ohio sometimes need a passport to prove their right to be in the country.

Legally, no documentation is required for travel within the United States. Anyone stopped by the immigration enforcers has the right to decline to answer any questions. In contrast to a criminal arrest, however, the authorities are not required to advise civilians of this right.

This is not the sort of society in which I wish to live. That is why, the next time I am questioned when I have not been traveling abroad, I will decline to answer the agent’s questions, politely thank him or her for the voluntary, consensual conversation, and be on my way.

Of course, the police may shortly pull me over for a real or imagined traffic violation, and then demand to see my identification. The Immigration and Naturalization Service may take a photo of me and my car, just for reference. My refusal to play along may get me some extra attention the next time I do cross an international border.

That’s fine. I am an American citizen, and when I demonstrate this, the immigration agency will have no choice but to admit me. While I am at home, I have every right to travel inside my own country without being asked who I am, where I was born, where I am going and what I plan to do when I get there. Every legal visitor to the United States has the same right.

I do appreciate the government’s efforts to keep us safe, but the reality is that most of the thousands of people arrested in the past few years are, at worst, housekeepers and busboys. If, as lead agent Thomas Pocorobba Jr. claims, “[The Border Patrol’s] mission is to defend the homeland, primarily against terrorists and terrorist weapons,” its methods are misguided. Those who actually want to harm us are canny enough avoid semi-regular stops on the interstate, or buses that have a history of random searches.

Instead, the agency’s efforts have drawn criticism similar to that aimed at Arizona’s recent immigration law. It is hard not to question what, exactly, constitutes “reasonable suspicion” when asking someone about their right to be in the country. Pocorobba explained that the border agents don’t use racial profiling to choose who to question more closely; instead, they base their selections on “demeanor.” However, given that many of the passengers questioned on buses or trains are awakened abruptly, late at night, by men in uniforms with flashlights, disorientation and nervousness are hardly surprising.

Such an environment also is not conducive to calm, informed dissent. Though answering an agent’s questions is voluntary, saying no may not seem intelligent, or even possible, under such circumstances.

But until citizens do start saying no, the situation is not going to change.

Bureaucracy is self-sustaining. Especially in a recession, it behooves government employees to prove their worth to the legislators who pay them. The border station that opened in Rochester, N.Y., specifically to handle traffic from the now-bankrupt ferry to Toronto, has grown despite the ferry’s failure. It now has one of the highest arrest rates on the northern border, according to The Times. With no incoming ferry passengers to question, agents make most of their arrests on buses and trains.

These practices did not disappear after the security excesses of the Bush administration, and it isn’t hard to see why.

The Obama administration, which is challenging Arizona’s law in court, is permitting its agents to run rampant on the northern border because politicians are over a barrel. None of them can afford to look soft on immigration, even if some of them agree that the border patrols have gotten out of hand.

The only way that the situation will change is for citizens to politely refuse to yield our privacy rights and to pursue legal action if those rights are abridged. Unless we push back, all of us will be subject to random “consensual” interrogation.

I am always proud to say I am an American, but the next time I run into one of those roadblocks, the honorable response will be to keep silent.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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