A Massachusetts federal judge denied a motion by the government to dismiss a complaint filed on behalf of the organization created to raise legal funds for a soldier accused of leaking information to WikiLeaks. At issue is whether government agents possess broad powers to search electronic devices at the border without any justification.
Federal Judge Denise J. Casper ruled March 29 in favor of the American Civil Liberties Union, which is representing David House. House, an American citizen residing in Massachusetts, is associated with the Bradley Manning Support Network, a fundraising organization for the U.S. soldier at the center of the WikiLeaks controversy.
In May 2011 the lawsuit by the national ACLU and the ACLU of Massachusetts claimed House’s laptop, USB drive, and camera were confiscated solely based on House’s association with the Bradley Manning Support Network.
House was detained by DHS agents at Chicago’s O’Hare International Airport in November 2010. House’s items were confiscated, and he was interrogated by the DHS about his association with the Support Network. House had been returning from a trip to Mexico. His property was not returned until Dec 22, 2010.
The ACLU argued the government needed to prove reasonable suspicion or must obtain a warrant before it seized and retained House’s electronic devices for nearly seven weeks, regardless of whether the government can legally search the devices at the border.
In her Memorandum and Order, Judge Casper wrote, “[although] the initial search and seizure occurred at the border [it] does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network.”
Casper ruled government agents engaging in the original search and extended seizure could not “seize personal electronic devices containing expressive material, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.”
U.S. Cases Rising
Border agents’ search and seizure of laptops and other electronic devices without a specific search warrant are becoming more widespread, and courts are considering the implications of confiscation of such devices.
In 2010 and 2011, the American Civil Liberties Union and others filed lawsuits in federal court challenging the Department of Homeland Security’s policy that allows border agents to search, copy, and detain travelers’ electronic devices at the border without reasonable suspicion of any wrongdoing.
“Millions of people travel today with devices that contain years of personal and professional correspondence, contact lists, documents, photos, data, and more, not just their clothing and a few personal items and supplies,” said Christopher Ott, a spokesperson for the ACLU of Massachusetts, where one of the lawsuit defendants resides.
The ACLU filed a Freedom of Information Act (FOIA) requesting records of how many travelers have been subjected to searches and possible seizures at the border. The request revealed electronic devices of 6,600 travelers, almost half of whom are U.S. citizens, were searched at the border between October 1, 2008 and June 2, 2010.
“The ACLU’s basic position is that allowing government officials to look through Americans’ most personal materials without reasonable suspicion is unconstitutional, inconsistent with American values, and a waste of limited resources,” Ott said.
‘Same Level of Suspicion’
The Center for Democracy and Technology, a nonprofit public policy organization that has offices in Washington DC and California, agrees reasonable suspicion should be required by law before government agents conduct a search of a laptop or other communications devices.
“This is the same level of suspicion that a police officer on the street must have before the officer can stop a person and demand ID,” said Gregory T. Nojeim, senior counsel and director for the CDT Project on Freedom, Security, and Technology.
“The government, as of a few years ago, takes the position that no suspicion whatsoever is required for border searches of laptops and other communications devices,” Nojeim said. “‘Reasonable suspicion’ is somewhere between probable cause—a strong standard that must be met, as determined by a judge, for such searches when conducted in the interior of the country—and mere relevance, a weak standard that is used to decide, for example, whether law enforcement should issue a subpoena for information.”
Reports of warrantless confiscation and searches of laptops have been increasing over the past few years. In September 2010, for example, the ACLU, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers (NACDL) filed a lawsuit on behalf of Pascal Abidor, a dual French-American citizen who had his laptop searched and confiscated at the Canadian border.
Abidor was arrested in May 2010 while traveling from Montreal to New York on an Amtrak Train. He was questioned, handcuffed, removed from the train, and kept in a holding cell for several hours before being released without charge. His laptop wasn’t returned to him until 11 days later with evidence that his personal files had been searched.
Alyssa Carducci ([email protected]) writes from Tampa, Florida.
“Judge Rules in Favor of Bradley Manning Supporter, Allows Lawsuit Challenging Laptop Search,” American Civil Liberties Union Press Release, March 29, 2012: https://www.aclu.org/national-security/judge-rules-favor-bradley-manning-supporter-allows-lawsuit-challenging-laptop
U.S. District Court District of Massachusetts Memorandum and Order, House v. Napolitano, et. al., U.S. District Judge Denise J. Casper, March 28, 2012: http://news.heartland.org/sites/default/files/house_v._napolitano_-_ruling_on_motion_to_dismiss_0.pdf