Court Suggests Politically Motivated Border Searches May Be Unconstitutional

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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Mar 29th, 2012 @ 1:01pm

    It's not a good idea to include "everything" on your laptop. Not only do you have to worry about government seizsure, you have to worry about theft, damage, etc... So your argument that "everything" is on the laptop is like excusing goverment officials who lose laptops with private data (like social security numbers of citizens). It's a really bad idea to store sensitive personal information on a machine that you take ANYWHERE.

     

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      identicon
      MrWilson, Mar 29th, 2012 @ 1:16pm

      Re:

      Good idea or not, it's necessary to store information somewhere accessible. If it's accessible to you, it's accessible to someone else with a variable amount of difficulty. The fact that you bring it with you over the border shouldn't give the government carte blanche to persecute you for your political beliefs.

       

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      Chosen Reject (profile), Mar 29th, 2012 @ 1:27pm

      Re:

      Regardless of whether it's a good idea to store all of your data on one device or at all, people do it. What people don't do is leave the safe with all of their important documents in a suitcase that is always used for travel.

      If you're a tourrorist going to Canada you bring you laptop with you because you want to have your laptop, it just happens to have all of your personal documents because that's where you usually keep them. You're bringing your laptop because you want your laptop, not because you want your personal documents. However, you don't just bring your house (which also has all of your personal documents) just because you need a place to stay.

      If your personal documents weighed a couple of pounds or took up a couple of cubic inches each you'd probably get them off your laptop anytime you went anywhere, much less over the border. But they don't, so you don't. So whether people should leave their stuff there or not, it happens, which makes it a completely different situation than what the founding fathers had in mind when they wrote up and approved the 4th amendment.

       

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      Anonymous Coward, Mar 29th, 2012 @ 10:36pm

      Re:

      We don't have any constitutional rights, the constitution is to limit the government. They are the ones who take an oath to uphold the constitution.

       

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  •  
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    :Lobo Santo (profile), Mar 29th, 2012 @ 1:15pm

    Der Steps

    Install Linux
    Use disk encryption.
    Have a secondary user profile for show.
    Gladly show people your "SFW" user account, files, et al without ever needing reveal anything.

     

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  •  
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    Anonymous Coward, Mar 29th, 2012 @ 1:19pm

    Simple answer

    Pop the drive out and just live boot a linux kernel,preferably from a usb stick.
    Nothing to see. It is just an internet machine. Also since we have seen in the past the border agents have a hard time searching anything that is not a windows partition it is a double win. Just make sure you own a IDE/SATA to USB drive and that you have the drive placed some where they can't locate it, then go on your merry way. Even if they take the laptop and the USB stick, you still have all your data. I guess they could always take apart your car to find the hard drive, but that is going to a lot harder to justify then just "Searching" the person and their surroundings.

    Proof that for every invasive right demeaning action there is a way to fight it.

     

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    Overcast (profile), Mar 29th, 2012 @ 1:20pm

    Probably 50% of the searches performed by 'law enforcement' now are illegal.

    Drunk Driving Checkpoints
    TSA Searches
    Border Searches

    In all cases - the above ASSUMES guilt before proven in a court of law, and in the majority of the same cases, there is no probable cause at all.

     

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    Thomas (profile), Mar 29th, 2012 @ 1:23pm

    The spooks..

    will do whatever they d*** well please, they don't care whether their actions are constitutional or legal. Judges should be careful about ruling against them - they might find themselves on a one-way flight to gitmo or some other hell.

     

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    Anonymous Coward, Mar 29th, 2012 @ 1:32pm

    "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."

    Are you not in control of your laptop?

    Outside of the operating system, I can choose everything that appears on my laptop. I can choose to keep my mail on it (or not), I can choose to install software, I can choose to keep my copy of the wikileaks notes if I so wish.

    That is my choice.

    Are you suggesting that you cannot control the content of your own laptop? Are you that feeble?

     

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    •  
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      Anonymous Coward, Mar 29th, 2012 @ 1:40pm

      Re:

      You control you laptop, but it would quit a pain in the ass to remove (or to another location) all data you don't want anyone to see form before traveling some.

       

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    •  
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      Anonymous Coward, Mar 29th, 2012 @ 1:56pm

      Re:

      That is not the context of his point. His point was regarding the way a portable computer is used compared to a suitcase. You PURPOSELY choose to put most if not all of the belongings that you want to carry in your suitcase before you travel. However when most people carry a laptop, most of the data that is stored on the laptop was INCIDENTALLY on the laptop prior to departing as opposed to being placed there specifically for the purpose of carrying it with you on your trip.

       

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        identicon
        Anonymous Coward, Mar 29th, 2012 @ 5:00pm

        Re: Re:

        Well, it depends.

        I have a laptop that I use essentially only on travels. I only put data on it that I will need during the trip, and I remove it after when I get back, placing it on my NAS here in AC central. Other than that, I don't specifically carry a lot of data around. I leave it stored on mail servers, on other servers, etc.

        When I cross the border, I consider what is on my laptop in the same manner as I consider anything else I am declaring. I don't bring the bag that had a box of road flares in it with me, as an example, because that might set off the bomb detectors.

        See, I make the choices. You can too. Most people choose not to take control of their laptops, that that's their problem. When you present at customs, everything you have with you is part of your declaration, including the content of the hard drive, IMHO.

         

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          Torg (profile), Mar 29th, 2012 @ 5:39pm

          Re: Re: Re:

          I think the disconnect here is that most of us just have the one, and don't travel enough to justify getting another on the off chance that a border guard wants to see our porn. It's nice that you're standing by your principles, but as far as I'm aware you're the only one here with such principles.

          Even so, the idea that physically smuggling data on your laptop could ever be a problem is ridiculous. If you want something to get to the other side of the border you can put it online and let people on the other side of the border download it, all without ever leaving your home. How could the contents of a person's hard drive ever be an issue in the specific case of a border crossing?

           

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            Anonymous Coward, Mar 30th, 2012 @ 2:54am

            Re: Re: Re: Re:

            The thing is that this makes the whole "suitcase" argument meaningless. You may choose NOT to keep your laptop clean, you have choose to bring material with you that is illegal or questionable, you may bring your emails to AQ on your hard drive. That is your choice. It isn't any different from what is in your suitcase.

            What you present yourself at the border with is subject to inspection. They can tear your laptop into little pieces if they suspect drugs hidden in it, and you have no real get back. Your consitutional rights don't extend into the border area (technically you are not in the US yet, you are asking for the right to enter the US, which puts you in a very limited position).

            You have the choice, regardless of what Mike is trying to push.

             

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              Torg (profile), Mar 30th, 2012 @ 7:12am

              Re: Re: Re: Re: Re:

              "They can tear your laptop into little pieces if they suspect drugs hidden in it, and you have no real get back."

              That I'm not debating. The physical contents of my laptop are valid points of suspicion. The software I have on my laptop is not ever going to contain cocaine, though. They do not need to search my hard drive for drugs, and they certainly don't need to send my laptop somewhere else in order to be sure that it doesn't contain drugs, explosives, or immigrants. Such actions are completely at odds with the idea that they're trying to prevent smuggling of illegal goods, and seem more like they're just trying to use technicalities to try to get around the restrictions that apply to normal law enforcement.

              "You may choose NOT to keep your laptop clean, you have choose to bring material with you that is illegal or questionable, you may bring your emails to AQ on your hard drive. That is your choice. It isn't any different from what is in your suitcase."

              You really don't see any difference from choosing specifically to bring something, and just forgetting to delete it to appease the unrestricted border guards? YES, I have the ABILITY to delete things from my laptop. I fully intend to spend a week going through it and removing everything the ICE might object to before going to England this summer. That doesn't change that the need to do so is COMPLETELY FUCKING RIDICULOUS. The only reason to bring software across the border on my laptop is because I like having it on my laptop, not to smuggle it into or out of another country. I'm not going to go across the border to pirate Metallica and then come back; if I wanted to pirate Metallica, I could do so here. The idea that software is different on the border than anywhere else is wrong, and there's no justification for searching it beyond the lack of a legal requirement for justification.

               

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      Torg (profile), Mar 29th, 2012 @ 2:19pm

      Re:

      I put data on my laptop because I want it on my laptop, and don't think much about what I should or shouldn't bring on a vacation. The default setting for laptop-related things is to be in the laptop, and if I don't want to bring something I need to specifically search for and remove it. I put stuff in my luggage because I want to bring it with me on a vacation. The default setting for luggage-stuff is anywhere but the luggage, and if I want to bring something I need to specifically search for and add it. Do you see the distinction?

       

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      TtfnJohn (profile), Mar 29th, 2012 @ 3:34pm

      Re:

      Actually you can choose the OS, wipe out Windows and install Linux or FreeBSD and you're off. Or choose to dual boot between Linux and Windows which isn't hard to do as most Linux distros will do it for you.

      Regardless you can also choose to encrypt what you consider to be private information because people DO lose or forget these things.

      For all of that most people don't. It's just too much of a bother. So they have all their logins and passwords stored there, including for their bank accounts and goodness knows what else including the infamous p0rn!

      We keep forgetting that most of the population isn't as technically adept as the vast majority of readers of Techdirt are.

       

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      ottermaton (profile), Mar 31st, 2012 @ 4:12pm

      Re:

      Outside of the operating system, I can choose everything that appears on my laptop.


      You can control your OS? Are you that feeble?

       

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  •  
    identicon
    Anonymous Coward, Mar 29th, 2012 @ 1:48pm

    4th Amendment Rights...

    The hell you don't have a 4th amendment rights at the border. Where the hell does it say "except when entering the country?" They become liable for violations the moment they find out you are a citizen. I guess they interpret this under their definition of "reasonable" because it's at the border. I'd say they need to push this part of the issue more in the case.

     

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    Mr. Smarta** (profile), Mar 29th, 2012 @ 1:58pm

    This is actually pretty awesome. I would say that everyone with a crappy old laptop should encrypt the hard drive with nothing more than a text message saying "Ha ha! Made you spend resources for nothing!", then start talking about Wikileaks, Bradley Manning, yada yada; everything you can think of.

    While it might hold you up in security for a few and they confiscate the laptop, they'll no doubt be working for months or years to decrypt the information. One laptop does nothing. A thousand takes a lot of time. Tens of thousands would take forever. And if every single decrypted hard drive only produced "Ha ha! You're an idiot for trying!", that would really drive the resources through the roof while producing no results.

    With that much waste of taxpayer dollars, they'd have to appear before Congress or cut costs throughout their departments.

     

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      Anonymous Coward, Mar 29th, 2012 @ 6:01pm

      Re:

      yes, and you can sit in a small windowless room while you are waiting for them to get the job done. Enjoy your trip.

       

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      That One Guy (profile), Mar 29th, 2012 @ 7:42pm

      Re:

      You drastically underestimate their vindictiveness, you can bet if people started making them look like fools like that they would start hitting people with anything they even vaguely thought would stick, as well as ruin a few people to 'serve as examples'.

       

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        Anonymous Coward, Mar 30th, 2012 @ 9:04am

        Re: Re:

        And the issue isn't even whether the charges would stick or not because they would make the process so uncomfortable the it would serve as punishment even if the charges proved invalid.

         

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    identicon
    abc gum, Mar 29th, 2012 @ 6:14pm

    "The federal government has long held that you have no Constitutional rights at the border"


    from aclu: But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary of theUS

    http://www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone
    https://ww w.aclu.org/constitution-free-zone-map

     

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    jsf (profile), Mar 30th, 2012 @ 7:41am

    The truly scary part about "border searches" is that the Border Patrol has jurisdiction, and works under these types of rules, anywhere within 100 miles inland of the border. Thus you get things like tactical checkpoints popping up in places like Austin Texas because it is less than 100 miles from the coast.

    This 100 mile band around the border covers something like 70%+ of the population of the country.

     

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      identicon
      Anonymous Coward, Mar 30th, 2012 @ 9:16am

      Re:

      Exactly. Last year I took my family on vacation to South Padre Island. We never even considered venturing into Mexico much less ever leaving the country. Yet on our way back we had to pass through a border patrol check point that was relatively innocuous and a pretty ridiculous addition to the security theater ie. let a drug dog smell a couple of the tires and ask us if we were all citizens (they didn't even ask to see our IDs) before waiving our car through but that wasn't the point. This check point causing a backup for a couple of miles was on the main highway 70 MILES INLAND. I should never have to go through a border checkpoint search regardless of how stupid it is when I never left the country.

       

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