An outspoken supporter of WikiLeaks suspect Bradley Manning can continue his lawsuit against the federal government over a border search-and-seizure conducted in 2010 after his return to the U.S. from a Mexico vacation, as a federal court ruled Wednesday that his constitutional rights may have been violated.
A federal judge denied the government’s motion to dismiss the case brought by David Maurice House, an MIT researcher, finding that the government’s search-and-seizure of his electronics may have violated his right to free speech – even if agents have the right to search travelers at the border for no reason.
“Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does
not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, 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. District Court Judge Denise Casper wrote. (.pdf)
The American Civil Liberties Union filed a federal lawsuit in Massachusetts in May 2011 on House’s behalf, charging that he had been targeted solely for his lawful association with the Bradley Manning Support Network.
“This ruling affirms that the constitution is still alive at the U.S. border,” ACLU Staff Attorney Catherine Crump said in a statement. “Despite the government’s broad assertions that it can take and search any laptop, diary or smartphone without any reasonable suspicion, the court said the government cannot use that power to target political speech.”
U.S. customs agents met and briefly detained House as he deplaned at Chicago’s O’Hare Airport in Nov. 2010. The agents searched House’s bags, then took him to a detention room and questioned him for 90 minutes about his relationship to Manning, the former Army intelligence analyst currently facing a court martial for leaking classified documents to the secret-spilling site WikiLeaks. The agents confiscated a laptop computer, a thumb drive and a digital camera from House and reportedly demanded, but did not receive, his encryption keys.
DHS held onto House’s equipment for 49 days and returned it only after the ACLU sent a strongly worded letter.
House was on Manning’s Facebook friends list at the time of Manning’s arrest in May 2010 and was one of several Boston-area friends of Manning who were interviewed by federal agents following the soldier’s arrest. House helped set up the Bradley Manning Support Network, a grassroots group to raise money for Manning’s defense, and had visited Manning in custody at the Marine Corps’ Quantico brig at least three times before falling out with other Manning supporters and being removed from the visitor’s list by Manning’s family in March 2011.
During his detainment in Chicago, agents questioned House about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had been in contact with anyone from WikiLeaks during his trip to Mexico. But according to House’s lawsuit, he was not questioned about anything “relating to border control, customs, trade, immigration, or terrorism, and at no point did agents suggest that plaintiff had broken the law or that his computer contained any illegal material.”
Data contained on House’s seized laptop included information concerning the Support Network, such as the complete Support Network mailing list, confidential communications between members of the steering committee about strategy and fund-raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes on meetings with donors.
Under the “border search exception” of United States criminal law, international travelers can be searched as they enter the U.S. without a warrant. Law enforcement agents have aggressively used this power to search travelers’ laptops, sometimes copying the hard drive before returning a computer to its owner. Courts have ruled that such laptop searches can take place even in the absence of any reasonable suspicion of wrongdoing.
But House’s suit, filed against the Department of Homeland Security, challenges the government’s right to conduct a suspicion-less search and seizure. The lawsuit asks a federal judge to declare the search an unconstitutional violation of House’s First Amendment rights of speech and political association, and Fourth Amendment right to be free from unreasonable search and seizure, and to order the government to destroy its copy of House’s computer files.
The government sought to dismiss the suit on grounds that House was asking the court to “create a new exception for electronic devices from the Government’s authority to conduct routine searches of closed containers at the border.
“There is no basis for the Court to conclude,” the government wrote, “that searches of laptops or other electronic devices at the border should be subjected to a different standard than that for other closed containers. Nor is there a basis for the Court to conclude that Plaintiff’s First Amendment rights were violated by the routine search and detention of his devices at the border.”
A graduate of Boston University, House is a computer scientist who works at MIT’s Center for Digital Business as a research software engineer, according to his resume. At BU he founded the campus hacker space for student tinkerers.
House is not the only person to be detained in a border search for his perceived connection to WikiLeaks. Computer security researcher Moxie Marlinspike, whose company Whisper Systems was recently acquired by Twitter, was also detained in Nov. 2010 after returning to the U.S. from a trip to the Dominican Republic.
The agents escorted him to a detention room where they held him for 4 1/2 hours. During that time, a forensic investigator arrived and seized Marlinspike’s laptop and two cellphones, and asked for his passwords to access his devices. Marlinspike refused, and the devices were later returned to him.
Months before Marlinspike’s detention, security researcher Jacob Appelbaum was intercepted at a New Jersey airport and detained in July 2010 after returning on a flight from Holland.
Appelbaum was detain for three hours and questioned about WikiLeaks. Appelbaum, a Seattle-based programmer for Tor, an online privacy protection service, has served in the past as a U.S. spokesman for WikiLeaks. He was reportedly told by the customs agents who detained him that he was randomly selected for a security search.