Late yesterday a federal judge in Boston denied the government's motion to dismiss a lawsuit challenging the suspicionless search and seizure of electronics belonging to activist David House when he reentered the U.S. after a vacation.
The national ACLU and the ACLU of Massachusetts represent House in a lawsuit charging that the government targeted House based on his lawful association with the Bradley Manning Support Network, an organization created to raise funds for the legal defense of the soldier accused of leaking material to WikiLeaks. The government had asked the court to dismiss the case, arguing that it has broad powers to search and seize laptops, phones and any other electronic device at the border without any justification.
Despite the government's broad assertions that it can take and search any laptop, diary or smartphone without any reasonable suspicion, the court said the government cannot use that power to target political speech.
The decision allows the case to move forward to the evidence-gathering stage, which could reveal why House became the subject of a government inquiry and which government agencies copied or viewed the contents of his laptop, phone, and camera.
While the court held that the government does not need suspicion to search a laptop at the border, it also held that the government's power to search was not unlimited. U.S. District Court Judge Denise Casper wrote:
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.
In November 2010, Department of Homeland Security agents stopped House at O'Hare International Airport in Chicago and questioned him about his political activities and beliefs. Officials then confiscated his laptop computer, camera and a USB drive and did not return them for nearly seven weeks. The government has not said what it did with House's possessions during that period. House's detention and interrogation and the seizure of his electronic papers and personal effects had no apparent connection with the protection of U.S. borders or the enforcement of customs laws.
The court ruled that even if the government could legally search House's devices at the border, this does not mean that agents could take and keep those devices for nearly seven weeks. The judge wrote:
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.
This ruling affirms that the constitution is still alive at the U.S. border.