We've written a number of times about the so-called Constitution-free zone that extends 100 miles inward from the borders of the United States, a place where the Border Patrol, along with the DHS and ICE, exercise the "right" to search electronic devices without a warrant. (The government has also baffingly argued that not searching your laptop doesn't provide enough of a civil liberties benefit to outweigh the potential security "gain.")
As is the case with most unconstitutional acts performed by government agencies, the justification is "terrorism." Keeping our borders secure apparently means allowing federal agents to delve as deeply as they want into electronics that cross the border, even if it's someone who just went to Mexico on vacation. Presumably, David House wasn't a threat to national security when he left for Mexico, but by the time he landed at Chicago's O'Hare Airport, he was.
House worked with the Bradley Manning Support Network and this was all the "evidence" ICE needed to alert DHS agents that House would be returning from Mexico through Chicago -- and the wide-open policy on electronic searches was all the agents needed to seize and search House's phone and laptop.
House was stopped at Chicago’s O'Hare International Airport coming back from vacation in November 2010. At the time, he was working with the Bradley Manning Support Network, which was raising funds for the legal defense of the soldier who has since plead guilty to providing classified documents to WikiLeaks. DHS agents detained House, 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.
The ACLU filed suit
on House's behalf, claiming he was targeted for political reasons, leading to his First and Fourth Amendment rights being violated. The government tried to dismiss the suit in 2012, claiming its agents don't need reasonable suspicion or a warrant to search electronic devices at the border. The judge smacked that down, granting that the DHS has certain powers which preclude reasonable suspicion or warrants, but that those powers are still limited and that its politically-motivated actions violated House's First Amendment rights
. A settlement was reached with the government, which agreed to destroy the data it gathered from its search of House's electronics and release documents related to the search.
Here's what the ACLU has discovered from the released documents
The settlement documents reveal that an agent with Homeland Security Investigations (HSI)—an Immigration and Customs Enforcement (ICE) subdivision that is now the second largest law enforcement agency in the United States—entered a “lookout” into a government database called TECS (see the document here), effectively notifying government agents throughout the country that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks. As a result of the lookout, which was linked to the Advance Passenger Information System, HSI later received an automated notification that House would be traveling outside the country and that he would return through O’Hare on November 3, 2010.
The records also show that HSI 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. House’s connection to Manning through the Bradley Manning Support Network made him a target of that investigation. The government then used its access to airline passenger information to learn when and where David House, and others, would be traveling across our border (see the document here), and laid in wait to seize his computer and other electronic devices.
Much like the GCHQ's abuse of terrorism laws
to intimidate David Miranda, the US abused its terrorism laws to pursue a vindictive domestic investigation. In addition to misusing its powers to intimidate House, the government also violated its own electronic search policies, which state that device searches should generally be completed within 30 days. House's devices were held for seven weeks and his data was investigated for the next seven months.
House may have received a settlement from the government and the presiding judge may have suggested that politically-motivated searches are unconstitutional, but this won't do much to change our current border policies on electronic devices. As the ACLU points out, federal agents are performing nearly 5,000 of these searches a year
, and with the vague definition of "border" including a 100-mile band around the country and any other inland entry point where someone might return from a foreign country, the power remains almost limitless and completely unrelated to keeping our borders secure.
House's experience shows just how many tools the US government has at its disposal to intimidate whistleblowers and their associates (no matter how poorly defined). Fortunately, the ACLU scored a rare win against government-ordained abuse, but our federal agencies have frequently shown that the legality of their actions is usually only a minor concern -- something they'd rather deal with after the fact than consider ahead of time, especially when attempting to shut someone up.