Court Suggests Politically Motivated Border Searches May Be Unconstitutional

Free Speech

from the that-would-be-big-news dept

The federal government has long held that you have no Constitutional rights at the border, and that they can search your laptop at the border without following the 4th Amendment. Unfortunately, courts have agreed with this position across the board. However, some situations can get a little trickier. What about if they’re taking your laptop away and searching it (and holding it) offsite (i.e., over the border)? Well, one court has said that’s okay if there’s reasonable suspicion, but the specific boundaries of what’s legal are still pretty fuzzy. The government, more or less, holds that anything goes. However, last year, David House, a friend of Bradley Manning, sued the government for taking his laptop away when he crossed the border from Mexico. They held the laptop for 49 days, only returning it after the ACLU sent them a threatening letter.

As House notes, he believes the seizure of his laptop was entirely political, and not related to any suspicion or threat that House caused. He also notes that the laptop contained a bunch of confidential information about the efforts to support Manning in his legal fight against the government. The US government responded by basically saying, “hey, look, we’re the federal government and we can do what we want, so leave us alone.” Specifically, the US government continues to insist that searching a laptop is no different than searching your luggage. Of course, as we’ve noted, that’s ridiculous:

• You mostly store everything on your laptop. So, unlike a suitcase that you’re bringing with you, it’s the opposite. You might specifically choose what to exclude, but you don’t really choose what to include. With a suitcase, you specifically choose what to include.

• The reason you bring the contents on your laptop over the border is because you’re bringing your laptop over the border. If you wanted the content of your laptop to go over the border you’d just send it using the internet. There are no “border guards” on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they’re not doing it by entering that country through border control.

So far, it appears that the court is not buying the government’s argument and is allowing the case to move forward, suggesting that if the search is politically motivated, it might violate the person’s rights.

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.

The court also makes it clear that while border searches may not violate the 4th Amendment, if they are politically motivated, it’s possible that there could be a 1st Amendment issue, which could make things interesting. Specifically, the court notes that since none of the government’s interest had anything to do with border patrol this might actually be a 1st Amendment violation:

As discussed above, the agents questioned House solely about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyone from WikiLeaks during his trip to Mexico…. None of their questions concerned border control, customs, trade, immigration, or terrorism….

[….]

The Defendants’ assertion that concluding that House has alleged a plausible First Amendment claim would be somehow inconsistent with the Court’s finding that the initial search and seizure was routine under the Fourth Amendment analysis ignores the difference in legal standards that apply to Fourth Amendment and First Amendment claims. See Tabbaa, 509 F.3d at 102 n. 4 (noting that “distinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment border context”). That the initial search and seizure occurred at the border 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 and the search of his laptop resulted in the disclosure of the organizations, members, supporters donors as well as internal organization communications that House alleges will deter further participation in and support of the organization. Accordingly, the Defendants’ motion to dismiss House’s First Amendment claim is DENIED.

This stage of the case is just the court rejecting the feds attempt to get the case dismissed, but certainly the language explaining why that motion was denied is extremely encouraging.

Filed Under: border searches, bradley manning, david house, first amendment, fourth amendment, free speech
Companies: wikileaks