Blog of Rights

ACLU in Court Today: Government Can't Use Border Checks to Avoid the Bill of Rights

By Avinash Samarth, ACLU National Security Project at 10:51am

As alleged ‘Wikileak-er’ Pfc. Bradley Manning faces his highly anticipated hearing this week, the government will face its own hearing today in a suit brought by the ACLU’s Project on Speech, Privacy, and Technology and the ACLU of Massachusetts on behalf of a co-founder of the Bradley Manning Support Network, David House. 

Late last year at Chicago's O’Hare airport, while returning from a vacation in Mexico, Mr. House was approached by two Immigration and Customs Enforcement (ICE) agents who questioned him about his political beliefs and then seized his computer, USB drive, video camera, and cell phone. The government retained the devices for nearly seven weeks, copying and distributing the information on them to various federal agencies.

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Our complaint alleges that Mr. House was targeted solely on the basis of his First Amendment-protected association with the Bradley Manning Support Network, a group of people and organizations raising funds for the legal defense of Private Bradley Manning, the soldier in military custody for allegedly providing federally restricted information to Wikileaks. Most notable of the leak was “Collateral Murder,” a recording of a 2007 air attack by U.S. forces in Baghdad in which Iraqi civilians, including two Reuters employees, were killed. In the past year, Pfc. Manning has been subjected to gratuitously harsh treatment, including forced nakedness and sleep deprivation, at Marine Corps Base Quantico in Virginia.

Mr. House's laptop had confidential information key to the Support Network’s operations, including membership lists and strategy memos. This information, in addition to Mr. House’s personal finances and private email messages, is now in the hands of the federal government.

Our lawsuit charges the government with violating Mr. House's First Amendment right to freedom of association and Fourth Amendment protection against unreasonable search and seizure. The lawsuit seeks the return or destruction of any of Mr. House’s personal data still in government hands, as well as the disclosure of whether and to whom the data has been given.

In July, the government moved to dismiss our case by claiming that it has the blanket authority at the border to search and seize any person’s electronic device for as long as it wants, regardless of whether or not it has any suspicion whatsoever that a person is engaged in wrongdoing. This means the government’s authority goes totally unchecked – without requiring an articulable reason for a search, the government evades accountability for searches that violate our most fundamental constitutional protections.

Today, Judge Denise Casper in the District Court of Massachusetts will hear oral arguments on the government’s motion to dismiss. We will emphasize that the Bill of Rights does not completely evaporate when someone walks into an airport. As our response to the government’s motion reads:

The Constitution does not sanction such a sweeping claim of authority and courts are not so powerless that they are forbidden from scrutinizing the actions of border agents. […] The protection the [Constitution] affords to the privacy of associational affiliation cannot be overridden simply because a person is located at the border […].

Whether or not one agrees with the alleged actions of Pfc. Manning or the political opinions of Mr. House, the First Amendment’s freedom of association and the Fourth Amendment’s protection against unreasonable searches are crucial parts of our functioning democracy. The outcome of this case will affect not only Mr. House and the Support Network, but every American who travels overseas with their laptop, phone, and other devices.

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