In other words, I would not suggest using email/virtual harddrive for anything other than "not-so-special" files.

[For more "special" files, there are alternatives to "sufficiently" "make things difficult" -- even using email -- such that cracking-in would not be readily possible using data access forensics technology available to DHS or DOJ employees (including the Computer Analysis & Response Team, or whatever they are called or will be called) -- except for a handful that are part of select SAPs -- unless drawing in employees and a bunch of resources from other agencies. Good luck with that nowadays .... unless you can wave the terrorist-threat card; and even then you will wait. :eek: ]

This code describes "Prohibition of importation".

As a U.S. citizen leaving the country, and then returning, what articles am I importing? Everything in my possession including the items I took with me when I left the U.S.?

And an even more basic question...How are obscene and immoral defined relative to this code? (I looked for definitions unsucessfully.)

I violated this code recently. I had a lottery ticket in my possession. :eek:

This is very informative thread, thanks to all the contributors.

I've been thorugh customs with a laptop about 10 times now. The laptop bag has yet to be even opened.

Perhaps it helps that I've always been with my wife at such times and she's older than me.

Exactly correct. This is why it is recommended that before you go abroad carrying valuables, you pre-register them with customs before leaving the US, so upon your return, you won't run the risk of being accused of importing the goods and being forced to pay duty on what you already own.

As you note, I think we are talking past each other.

I've never questioned the constitutionality of border searches. I was focused, solely, on the prohibition against importation of "immoral" material in the statute. Any Customs agent who seized, for example, the copy of Catcher in the Rye that I bought overseas on the grounds that it was immoral would, in my opinion, have committed a First Amendment violation, at least, and probably a Fifth Amendment violation as well (it's not "due process of law" if the standard applied is, itself, illegal).

It's not really defined anywhere what exactly an "importation" is. There are two complicating factors. The first is that anything you have is presumed to be acquired abroad, absent evidence to the contrary. Thus, a well-worn camera may be accepted as something you took out with you, but a new-looking one may not be. Secondly, I believe an argument could be made that you exported and then re-imported these articles. There is a provision for waiver of duties (which are essentially import taxes) for items which were exported and then re-imported, but nothing allows the re-importation of contraband.

As for your second question, that's the kicker, ain't it? As I've said, "obscene" has been defined operationally as bestiality and child porn.

One of my high school teachers was an older English lady. Back in her younger years, she actually had a book seized by US Customs as being "immoral". I believe it was Lady Chatterley's Lover, but I'm not 100% certain. The immorality portion of that statute hasn't been used in decades, though, to the best of my knowledge.

BTW, I'm not sure it is a Fifth Amendment violation. The statute specifies that the article is merely detained until judicial forfeiture is obtained. Wouldn't that protect due process? (At least, that's how I read it. I'm not sure how it works in real life.)

Can you give an example of a case where Customs seized material that did not fall within the clear definition of obscene?

What is obscene is immoral, but what is immoral is not necessarily obscene. As Deeg pointed out, there is a statute that only permits the seizure of obscene material, and clearly labels what constitutes obscene. Therefore, something could be seized as immoral if it was obscene material, but nothing can be legally seized if it is not obscene...even if the inspector personally feels the material is immoral...assuming I have read the information correctly.

If there is a law that permits the seizure of immoral material, without a clear definiton of what constitutes immorality, then perhaps that needs to be challenged.

Here is how I understand things: for example, if a gay traveler was searched and the inspector, a fundamentalist Christian, found a copy of "the advocate" magazine in the passenger's luggage, that inspector might consider the material both immoral, and personally obscene. It could not be seized because publication falls outside the definition of obscene, so it could not be seized as such. Even though the inspector might personally object to the material, and perhaps to the traveler, there is nothing they can do.

Now let me give you an example from the other side of the border. In Canada, there is a broad definition of what can be considered obscene, and the customs inspectors have a wide latitude in deciding this. In fact, virtually all pornography outside of 'soft-porn' could be labeled obscene and seized. My father was in an inspectors office negotiating the release of my mother and I (long story, but always declare new stereo equipment :D ) at the Fort Erie crossing and saw all the inspectors' desks were literally covered with seized VHS tapes of all flavors of porn. Alot of that material was probably not obscene, but was immoral, however the inspector could decide anything was obscene and seize it (I am sure that group had a nice little 'evidence room sign-out' routine going).

I certainly don't want US Customs inspectors seizing stuff based on their personal whims, interests or religious beliefs.

No. I have no idea what Customs has seized puruant to the statute. I'm focused solely and exclusively on the language of the statute.

In your opinion. "Immoral" is not a legal term of art. "Obscene," however is. I don't think everything that is obscene is immoral, and there are plenty of things deemed moral that I think obscene. However, what I think, and what you think, regarding morality is irrelevant to this discussion.

Not true. That statute permits seizure of "immoral" material, as well.

That's not what the statute says:

"All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided. . ."

Note the use of the disjunctive: "obscene OR immoral." The statute clearly authorizes seizure of that which is immoral, but not obscene.

In my opinion, the statute is unconstitutional for two primary reasons. First, as you note, "immoral" is undefined, rendering the statute fatally void for vagueness. Second, and more important, however, is that the statute engages in impermissible content-based discrimination, in violation of the First Amendment.

There is no such thing as "personally obscene." Obscenity has a legal definition (set forth in Miller v. California), which is:

* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Advocate is not obscene by the Miller test, irrespective of the personal beliefs of the inspector. Since The Advocate is not obscene as a matter of law, it constitutes protected expression and cannot be excluded on the basis of content-based discrimination without violating the First Amendment.

This would be correct, except that the statute authorizes seizure on the grounds that the material is "immoral." It is a basic tenent of statutory construction that all provisions be construed so as to give them meaning. In other words, it is not proper statutory construction to say that "obscene" and "immoral" mean the same thing in the statute, or that "immoral" really doesn't mean anything.

I'm unfamiliar with Canadian law, but there are significant features that may differentiate the two:

1. The source of all rights in the U.S. is the individual citizens who ceded to the federal government specific and limited rights at the formation of the country. This is very different from other nations, in which the source of rights is the sovereign, either as monarch or governmental entity, who can dispense or withhold rights at will. This means that, in the U.S., the government cannot act outside the very limited scope of authority ceded to it by its citizens, hence the description, "ours is a government of limited powers." When the U.S. government usurps powers not ceded to it, it acts illegally and as a tyrant.

2. The First Amendment, which is part of the Bill of Rights, expressly reiterates that the government cannot restrict speech -- that is a power that was never ceded to it by the citizens of the U.S. Two hundred years of jurisprudence has resulted in construing the First Amendment such that the limitation on speech restrictions is not absolute (this is a necessary construction, but I won't go into why that is so in this thread). As I explained earlier, "obscenity" is regulated on the grounds that it is defined as "not speech." There is also a distinction made between speech-as-conduct and speech-as-expression -- speech-as-conduct is subject to regulation, e.g. defamation and sedition are illegal. Finally, distinctions are made between "core value" or political speech and lesser, but nonetheless protected, classes of speech, e.g. commercial speech. That which is deemed "immoral," but non-obscene, is almost certainly core value speech and subject to the greatest amount of protection (again, it would take too much time and space to explain why this is so in this thread). The Supreme Court has held, consistently, that the First Amendment precludes the government from restricting core value speech on the basis of content. Seizing otherwise-protected expression on the ground that it is immoral is the very definition of content-based restrictions and, therefore, presumptively unconstitutional, illegal, and the act of a tyrant.

I don't know the source of rights in Canada, nor do I know whether Canada has a Constitution that constitutes a limitation on federal power. Finally, I don't know whether Canada has the equivalent of a First Amendment.

My analysis of this statute is specifically and peculiarly American -- the rationale doesn't necessarily apply anywhere other than in the U.S.

And that is exactly my point. I notice that the date of the statute in question is August 3, 2005, which probably represents the effective revision date. I don't know how long the "immorality" prohibition has been in place -- it may pre-date the latest revision. I am, however, extremely concerned at the in-roads the present administration has made in usurping power that is expressly denied it by the U.S. Constitution. This statute may or may not be an example.

I did notice in that US Code Title 19, 1305 that there is this provision...

"Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes:"

I'm too far removed from law school to remember all the particulars regarding government seizure. My recollection was that preemptive seizure prior to adjudication was problematic when, as here (and, again, in my opinion), the basis for the seizure was illegal.

Again, I'm straining my memory now, but my recollection was that a First Amendment violation resulting from content discrimination is not remediated by according an official discretion to override it.

PTravel, thank you for the clarification. My post was as much as question as a treastise on what I understood the law to be. I am more troubled now, because I thought we were protected from seizures outside the definition of obscene. Who defines morality in this country?

So, if the law permits the seizure of 'immoral' material, I believe that is unconstitutional. The part about sedition was already discussed, and is understood.

To permit the seizure of non-sedicious, non-threatening material which is not specifically obscene, but could be construed as immoral - and the one who initially judges immorality is the inspector - is a violation of my 1st Amendment rights. So, in fact, we are actually in total agreement, I just wanted to clarify the issue of immoral vs obscene, and frankly I am surprised and troubled that something outside the "Miller test" could be seized on the whim or opinion of a customer inspector, and I would need to fight before a judge to get it back.

In my opinion, I believe the Miller Test should be applied to all seizures, and anything that does not fall within its tenet should be allowed. However, I am also troubled by some of the language of Miller itself.

Breaking it down, by point:

* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
Unless I am reading this incorrectly, are we to assume the work must pass a test of acceptance, in order to avoid being labeled obscene?

* Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Different states have different laws pertaining to many sexual acts. Which state's laws are used? Conservative Texas, or liberal California?

* Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This one is particularly troubling. So now society becomes an art critic? One man's Monet is another man's garage sale junk. One man's Shakespeare is another man's sedicious rhetoric. Who assigns the value? Using what critiera?

Apparently, the President and his core constituency. Okay, that was flip. As a matter of law, no one defines morality.

I'm not aware of any seizures on the grounds of immorality. It doesn't mean that they haven't occured, but I don't know of any instances.

The Miller test is intended to be applied by a trier of fact, i.e. a judge or jury. An inspector who applies it, albeit incorrectly, will have violated the First Amendment.

Not exactly. The test is whether the work, as a whole, appeals to "prurient interests," which, if I recall, were defined as base, sexual interests. As I recall, the community standards requirement is relatively new (Miller was decided in the 70s), and was intended to permit censoring works in, say, Birmingham, Alabama, that would not be deemed objectionable in, say, San Francisco.

The standards applied are those of the state having jurisdiction over the action in which the Miller test is applied, i.e. if I'm prosecuted for obscenity in Georgia, Georgia laws apply.

This is generally done through expert witnesses, e.g. a professor of literature will testify that a specific work is in the tradition of Moliere and Swift, etc. Such testimony was actually presented at one of Lenny Bruce's many trials.

I agree, though, the Miller test is a kludgy compromise. If I were on the Supreme Court, I'd eliminate the "obscenity is non-speech" rule and focus, instead, on laws designed to limit access by minors.

This is an old law. I believe it was part of the Tariff Act of 1930, although I don't know how much it has been revised since then. Any revisions in the last four or five years have not been substantive. Of that, I am quite certain.