Cambridge resident David House got a nasty shock back in December 2010, when on his way back from vacation in Mexico he landed in Chicago, and found himself in a Homeland Security interrogation room. What was House’s crime? Being involved with the Bradley Manning Support Network. He was generally sympathetic to Wikileaks’ efforts to publicize the war crimes revealed by the Bradley Manning leaks. Or, as the “lookout” alert put it, he was “wanted for questioning re leak of classified material.”
The ACLU of Massachusetts reports,
DHS agents […] interrogated him about his political activities and beliefs, and then seized his laptop computer, mobile phone, camera, and USB drive. The agents returned House’s phone after inspecting it, but the government kept the rest of his devices for seven weeks while agents searched his files for evidence. Even after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.
Oh, I get it! If you’re friends with a guy who has leaked classified material, or even if you sympathize with the abusive treatment of someone imprisoned for leaking classified material, it’s JUST LIKE doing it yourself! No difference!
What about Barrett Brown? Sure, he didn’t leak material, but gosh darn it, he did link to and read material that was leaked. No difference!
How about Matthew Green, who discussed the NSA’s crypto-breaking projects in an actual blog post, and linked to supposedly classified material? No difference!
Perhaps you’re merely the boyfriend of a reporter who has reported on scandals created by someone entirely different’s disclosure of classified materials? Sure, search and detain him, why the hell not?
And what of the rest of us, who have read a bunch of the materials leaked by Edward Snowden, to understand more about how the government is intruding in our lives? No difference, people. To the government, merely reading this stuff makes you an enemy. Look, the House Intelligence Committee doesn’t even want other Congressmembers learning about this stuff so they can cast informed votes, let alone us. Knowledge this aggressively protected is inherently valuable.
So they took House’s files and, without a warrant of any kind, searched them for evidence of crimes, under the pretext of investigating a leak of classified materials by a friend of House’s.
Let’s look at the Fourth Amendment law on this.
First off, since the beginning of the Constitution, there has been what they call a “border search exception” to the Fourth Amendment. The idea was that it was necessary for Customs officials to be able to conduct random, suspicionless searches at the border, in order to intercept smuggled goods. In the beginning, the main funds for the federal government came from excise on imported goods, so maintaining those duties was vital to the existence of the federal government.
There was no suggestion that House was smuggling contraband. The “lookout” report’s wording suggested that he had personally been involved in the leaking of classified documents; but House was not a government worker, and therefore even if he had been in possession of classified documents, his unauthorized possession of them would not be criminal. As it turns out, months of review of his devices failed to turn up any classified documents anyway. The government’s documents state,
“no data was found that constituted evidence of a crime (and would justify ICE’s seizure of the materials).”
It’s also evident that someone only carrying classified documents poses no threat to airline safety, is not carrying goods subject to duty, and is not smuggling any kind of illegal materials, so there’s that. Further, there was and is no hint of any material connection between the disclosures by Private Manning and any planned or actual acts of terrorism.
If the search of House’s effects and the detention of his person had been “routine”, then House would probably not have sued. “Routine” border searches of electronic devices typically involve a cursory inspection of the device (and, with some legal ambiguity, viewing a directory of the files on it), and would not involve detaining a person beyond the time necessary to conduct such a cursory inspection of their effects. A “nonroutine” search, which would be anything more intrusive, would require reasonable suspicion of a planned or actual crime and a warrant. What House endured was clearly a “nonroutine” search, and no warrant was obtained, placing DHS on shaky legal ground.
House and the ACLU of Massachusetts sued, and settled in May of 2013, the DHS perhaps wishing to avoid a precedent that would unambiguously require a warrant for the seizure of electronic data at the border. Under the terms of that settlement, DHS has now released documents shedding substantial new light on their procedures for border searches.
The ACLU comments,
[Homeland Security] was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division, not to protect our borders but to further a domestic investigation of the WikiLeaks disclosures.
The US government was strategically taking advantage of weaker Fourth Amendment protections at the border to glean information into an investigation unrelated to border security. Of course, David House is not alone; it appears that the US government conducts about 5,000 seizures of this kind per year.
Let’s consider the implications of this for people who regularly travel across the border – or who regularly travel within 100 miles of the US border or coastline (30 miles in the Ninth Circuit). The way the law is applied today, your protections are pretty weak. If you come to the attention of law enforcement, whether or not you have been involved in any actually illegal activity, you should not be surprised to find your materials seized. It appears from a 2008 survey that 7% of US members of the Association of Corporate Travel Executives report having had their devices seized at the border.
We have to consider here what will best serve us as a country. Being forced to expose your private documents to the government as the price of getting on a plane is dangerous for activists of all kinds. It also threatens people privy to trade secrets, or indeed to secrets of any kind that are held digitally. We need to find some way of recognizing and honoring the privacy interest in such documents, and of imposing practical limits on the power of law enforcement to seize and examine devices at the border.
After all, over-eager law enforcement has a way of coming back to bite law enforcement itself: