We announced some excellent news last night: the U.S. has agreed to settle a lawsuit brought by David House over the government's 2010 search and seizure of his laptop and other electronics at the airport as he was coming back from a vacation in Mexico. House was at that time involved in the Bradley Manning Support Network, an organization dedicated to raising funds for the legal defense of the soldier who has since admitted providing classified documents to WikiLeaks. You can read the settlement here.
When he was stopped, House's electronics stored the identities of members and supporters of the Bradley Manning Support Network. Given the controversial nature of that cause, House and others were deeply concerned that the government seizure of this material would frighten others from lending their time and money to the organization. The ACLU and the ACLU of Massachusetts brought the lawsuit on House's behalf, charging that the government targeted House solely on the basis of his lawful association with the group, and doing so violated his First Amendment right to freedom of association as well as his Fourth Amendment right to be free from unreasonable search and seizure.
In the settlement, the government agreed to destroy all copies of House's devices, and to turn over documents related to its investigation of him and his devices. The government also admitted that House was on the Department of Homeland Security's "Lookout" list used by agents at border checkpoints, which is why he was stopped and searched in the first place. Our hope is that these documents will shed light on what happens after an individual's electronics are taken at the border, a process that unfortunately has been largely shrouded in secrecy so far.
Through the lawsuit, House learned that even after the government returned his electronic devices, it kept copies of the data they contained. And not only did the Immigration and Customs Enforcement (ICE) agents who seized his devices search them, they also provided a copy to the Army's Criminal Investigative Division (Army CID), which they asked for "technical and subject matter assistance." Army CID has played a central role in the investigation of Bradley Manning. The agency ultimately determined that it would not use the information on House's electronics, and destroyed its copy, but ICE retained its copies.
This illustrates one of the ways in which electronics border searches are so concerning: once border agents have a copy of your data, it can easily be copied many more times and shared with other government agencies, increasing the possibility of individual or institutional abuse of the information as well as data breaches.
The government assertion of power at the border is vast and intimidating: it claims it can search or confiscate any person's laptop, cell phone, or other electronic device for any reason, and keep these devices for as long as it takes to search them.
In March 2012, the U.S. district court judge in the case rejected the government's effort to dismiss the lawsuit, ruling that even if the government does not need suspicion or a warrant to search a laptop at the border, that power is not unlimited and First Amendment rights remain intact. The settlement announced today is the result of months of negotiations following that decision.
David House has explained the significance of the settlement in a statement:
When my laptop was seized on American soil, I made a pledge to the everyday working people, clergy, and U.S. service members who make up the heart of Mr. Manning's financial contributors: that their generosity would not be met with retaliation from corrupt elements within our government, and that their personally identifying information, placed at risk by the seizure, would be reclaimed from those who had ordered it seized
Today, with a settlement to reclaim this data realized through the pressure of the courts and the hard work of the ACLU, I have made good on my pledge. The government's surrender of this data is a victory through vital action not only for the citizens put at risk, but also for anyone who believes that Americans should be free to support political causes without fearing retaliation from Washington.