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Feds Say They Can Search Bradley Manning's Friend's Laptop Because They Can

from the leave-us-alone dept

Back in May, we noted that Homeland Security's ICE group had taken David House's laptop and had kept it for 49 days because he's friends with Bradley Manning, who is accused of leaking the State Department cables to Wikileaks. House was traveling back to the US from a vacation in Mexico and Homeland Security has long held that it can take your laptops at the border for any reason whatsoever. House (with the help of the ACLU) sued the government over this. Not surprisingly, the Justice Department is defending the actions of ICE, basically using the "we did it because we can, so shut up" argument.
There is no basis for the Court to conclude 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.
This is, at best, disingenuous and, at worst, dishonest. There is a tremendous "basis" for a court to conclude that searches of electronic devices differ than searches of a closed container. That's because, as we've discussed at length before, what's in your laptop and what's in a container at the border are entirely different:
  • 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.
More to the point: the reason why ICE is supposed to be stationed at the border is to stop those who should not be in the country and to prevent items that should not be in the country from getting it. It is abundantly clear that taking House's laptop furthered neither of those goals, but instead it was done solely in an attempt to further an unrelated legal claim by the government (the case against Manning). It seems crazy to me that the courts do not seem to take into consideration the purpose of a border search in determining whether or not they are appropriate. This border search had nothing to do with the border and everything to do with the feds using a questionable opportunity to seize data that it could not otherwise get access to via legal means. If House's laptop were really crucial to the case, then the Justice Department should have gotten a warrant to view it, rather than use this loophole at the border. The fact that they did not get a warrant shows pretty clearly that they knew outside of the border situation, they had no right to look at the contents of House's hard drive.

On a separate note, the reason given for having to keep House's laptop for so long? Because the laptop ran both Linux and Windows and the tech geniuses at Homeland Security had trouble understanding how to deal with that.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

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  1. icon
    el_segfaulto (profile), 1 Aug 2011 @ 9:01am


    From my experience (and as always your own mileage may vary) most of the forensic techs at local police departments and FBI field offices have enough technical knowledge to slap in a preconfigured CD and run a suite of software. They have no idea what's going on in the backend. I was asked once to figure out why their proprietary scanner wouldn't read a particular partition, turns out the owner had used EXT3 combined with a Windows driver to act as a shared drive between his two systems. The fact that they were stumped by the fact that it was neither FAT nor NTFS was a real eye-opener.

    That isn't to say that the real guys at the main offices and research labs don't know their stuff...they do. It's just that data forensics is not exactly an entry level job and most of these guys only get a week of training and don't bother to keep up with the state-of-the-art. Not to mention the fact that often, they're handling a ton of other projects.

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