Was your laptop searched by U.S. Customs coming back from spring break? It could have been, without a warrant, and the government might have kept it for days, weeks, or even months while they searched it.
That happened to David House, on November 3, 2010 at Chicago O’Hare. The government held his laptop for 49 days. At the time, House was a researcher at MIT.
Last week, a federal judge in Boston ruled that House’s lawsuit against the government could proceed. House had sued the federal government in May, 2011, alleging his first and fourth amendment rights were violated by “the prolonged seizure of his laptop computer and other electronic devices and the review, copying, retention, and dissemination of their contents.”
The government moved to dismiss the case in July and the dismissal question was argued before Judge Denise J. Casper in December. She issued a 27-page written opinion allowing the case to go forward on Wednesday, March 28, 2012.
“We were very happy with the judge’s decision,” said Catherine Crump, one of House’s attorneys.
Who is David House?
David House graduated with a degree in computer science from Boston University in 2010, and went on to work for the MIT Center for Digital Business, part of the Sloan School of Management. House worked as a computer programmer and researcher.
But he was also a friend of Bradley Manning, the United States Army private who is alleged to have leaked classified materials to WikiLeaks, a group that publishes private and classified material from anonymous sources, whistle blowers, etc. Manning is being held in military custody as he awaits trial.
House is a founder of the Bradley Manning Support Network, which seeks to raise awareness about Manning’s situation and to fund his legal defense.
Shortly after filing the lawsuit, House left MIT, and he is now a freelance programmer. He left MIT of his own accord, to spend more time on politics, according to said Prof. Marshall Van Alstyne, for whom he worked.
House’s passion, he says, is building tools that activists can use to communicate securely, a project he calls “Ethereal.”
House vacationed in Mexico in the spring of 2010 with his girlfriend, and he returned to the United States at Chicago O’Hare, where he went through customs. After his belongings were initially searched by Customs and Border Patrol (CBP), he was waved onwards. Two Department of Homeland Security (DHS) agents met House and demanded he surrender his electronic devices and come with them to an interrogation room.
House says CBP told him, “you’re free to go” before the DHS agents stopped him. The government disputes that point.
House was taken away for 90 minutes and questioned by the agents (about Manning and WikiLeaks, but not about border control, customs, terrorism, etc.). He was asked to give the password to his unencrypted computer (a dual-boot Windows and Linux machine, causing the agents some confusion), and he declined. When allowed to leave, his cell phone was returned, but not his computer or camera.
House’s laptop contained all of his email for several years, as well as personal finance information, and many confidential details about the Bradley Manning Support Network, including communications between members of the steer committee, as well as the network’s complete mailing list.
Forty-nine days later, on Dec. 22, 2010, and one day after House’s lawyers wrote to government, House’s laptop was FedExed back to him. House filed suit against the government six months later, on May 13, 2011.
House sued Janet Napolitano, the secretary of homeland security, in her official capacity. He is being represented by the American Civil Liberties Union.
House argues there are three ways in which his rights were violated: 1) the searching and holding of his laptop violates his fourth amendment protections against unreasonable search and seizure, 2) his first amendment right to free speech was violated, and 3) the government’s keeping of his information about the Manning support network and disseminating it to other government agencies violates House’s first amendment right to “associational privacy.” Associational privacy is the right to associate with a group in order for the purpose of advocacy, and the right to privacy in so doing; it was recognized by Supreme Court in NAACP v. Alabama in 1958.
The government moved to dismiss the case in July, saying it was fully within its rights to search House’s laptop as a border search. It also asked that, in the alternative, the court should rule for the government in “summary judgment.” In summary judgment, a court decides a case when there is no genuine dispute of fact, instead of moving to a full trial.
Both sides filed briefs on the issue, and then the question of dismissal was argued before the court in December. Video of the argument was recorded as part of a pilot project, Cameras In Courts. It is available at http://www.uscourts.gov/multimedia/cameras/player.aspx?video_uuid=ju19cvy8.
Last week on Wednesday, March 28, 2012, Judge Casper ruled that House’s suit could go forward on all three claims.
The federal government has until April 16 to file its answer to House’s original complaint from May, now that the case was not dismissed. In that answer, according to Crump, it could choose to file statements of fact and again move for summary judgement, or it could consent to discovery, which would take place over the coming months. In discovery, both sides can request additional information from each other in order to establish the factual record.
The government alleges it has the right to search a travelers’ property at the border, for as long as it wishes, as comprehensively as it wishes, without any suspicion whatsoever.
However, there is considerable argument to the contrary.
There are several standards of suspicion that can apply to searches, including none whatsoever, “reasonable suspicion,” and “probable cause.” In reasonable suspicion, the government needs to have “specific and articulable facts” and inferences from them that a crime has been committed. In probable cause, the government has to believe that a crime has probably been committed.
House has argued that the government should need reasonable suspicion to hold House’s laptop for 49 days. The judge agreed this idea is plausible, so this argument remains in play.
But House also suggested that the government should need reasonable suspicion to have searched his laptop at all, because of the expressive and personal nature of the content. Judge Casper disagreed, saying that the search was more like a search of a suitcase (requiring no suspicion at the border) than of a body cavity or another “highly intrusive search of a person” (requiring reasonable suspicion).
Crump, of the ACLU, said House would not be able to renew the argument for a reasonable suspicion requirement in laptop searches until the case reached the court of appeals.
Another case that relates to laptop searches is United States v. Cotterman, where Howard Cotterman’s laptop was searched when he returned from Mexico. Cotterman is a registered sex offender in the California, and CBP agents referred him for “secondary inspection” based on that fact. His computer was transported 170 miles away and returned to him two days later; child pornography was found in unallocated space on the disk.
The Arizona district court found in favor of Cotterman, and the evidence was suppressed. But a 3-judge panel in the Ninth Circuit Court of Appeals reversed the decision, ruling for the government. However, the court was critical of the length of the search (2 days for Cotterman, versus 49 days for House).
On March 19, 2012, the Ninth Circuit agreed to re-hear the Cotterman case en banc, or before the entire court. If the en banc court reverses Cotterman, it would be favorable to House — at least if it were to happen before House’s case is decided.
Life after the search
Now, when David House travels internationally, he is on a watchlist. His laptop has never been searched again, but when he goes through customs, he is searched “extremely thoroughly,” he says. It adds 10–35 minutes to his return home, he said.
“Realistically I don’t think I am still a target,” House said. But then he goes on: “It’s scary time to be a freedom-loving computer person.”