Judge Allows Bradley Manning Supporter To Sue Government Over Border Search

Fluffeh writes "David Maurice House, an MIT researcher and Bradley Manning supporter, was granted the right to pursue a case against the government on Wednesday after a federal judge denied the government's motion to dismiss. 'This ruling affirms that the Constitution is still alive at the US border,' ACLU Staff Attorney Catherine Crump said in a statement. '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 agents confiscated a laptop computer, a thumb drive, and a digital camera from House and reportedly demanded, but did not receive, his encryption keys. DHS held onto House's equipment for 49 days and returned it only after the ACLU sent a strongly worded letter."

Comments

Not held in contempt?

[Anonymous Coward]

I'm surprised that he wasn't being held in contempt.. or similar.. for not handing over his keys..

Re:Not held in contempt?

[DaHat]

Being held in contempt would require a judge making such an order that was violated... in this case, it was simply CBP/DHS.

Re:Not held in contempt?

[Concerned Onlooker]

Not only that, but it's meanIngless since everyone holds the DHS in contempt.

Re:Not held in contempt?

[Kell Bengal]

If being in contempt of DHS was punishable, we would all be in jail.

Re:Not held in contempt?

[koan]

Try to keep up:

In United States v. Doe a federal appeals court 11th circuit ruled on feb 24 2012 that forcing decryption of ones laptop violates fifth amendment.[20][21]

https://en.wikipedia.org/wiki/Key_disclosure_law#United_States

Re:Not held in contempt?

[Nyder]

If being in contempt of DHS was punishable, we would all be in jail.

They are working on that.

Re:Not held in contempt?

[jd]

Doesn't that mean the DHS should be arrested?

Re:Not held in contempt?

[jcr]

Well, for that to happen we'd have to have a justice system. I'm not holding my breath for that, but then again I didn't expect to see the Berlin wall come down in my lifetime.

-jcr

Re:Not held in contempt?

[Monoman]

I suggest everyone read up on that ruling and understand it was applied to a very specific situation.

Re:Not held in contempt?

[Iamthecheese]

All the government has to do to dodge that is claim it knows of a specific file. That claim alone is enough for a DA to subpoena your encrypted data.

Inconsistent?

[DoofusOfDeath]

If they can't violate the 1st Amendment, then why can they violate the 4th?

Is this just setting up a contradiction that will land in the Supreme Court?

Re:Inconsistent?

[Anonymous Coward]

Amendments are obviously written in order of importance. Border searches are more important than the 4th amendment but less than the 1st. I think that it in fact lies somewhere between the 2nd and 3rd amendments in terms of importance.

Re:Inconsistent?

[PatPending]

Oh, for goodness sake, RTFA:

Under the "border search exception" of United States criminal law, international travelers can be searched without a warrant as they enter the U.S. Under the Barack Obama administration, law enforcement agents have aggressively used this power to search travelers' laptops, sometimes copying the hard drive before returning the computer to its owner. Courts have ruled that such laptop searches can take place even in the absence of any reasonable suspicion of wrongdoing.

Re:Inconsistent?

[ae1294]

I'll just leave this here...
https://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free-zone

Re:Inconsistent?

[the eric conspiracy]

Warrantless, causeless border searches of closed containers by customs agents have been permissible since the beginning of the Republic under an act passed by the First Congress on July 31, 1787, merely 4 weeks after the ratification.

What makes this act constitutional is the power granted to Congress under the Constitution to regulate commerce between nations and enforce immigration laws.

It is VERY unlikely that the Supreme Court will touch this principle that has been in force for 230 years.

Re:Inconsistent?

[Cajun Hell]

Amendments are obviously written in order of importance

Oh shit, that means I have to give up alcohol!

Re:Inconsistent?

[pdabbadabba]

First remember that the 4th Amendment does not actually require a warrant before the government can search your property. It just requires that searches be "reasonable." It's just that in most cases the courts have held that reasonableness requires a warrant. Not so, they have said, at the border where travelers expect that they might be searched and where the government has a heightened interest in controlling what moves in and out of the country. Imagine trying to enforce customs regulations without an ability to search! (Note that I don't agree with all of the powers that the government claims flow from this, but this should help to explain why at least some of what they do is OK under the 4th Amendment.)

But the government can't enforce its laws in a way that infringe on other rights. So, for example, the police can't decide to only pull over black people for speeding, even if they were actually speeding. Or, here, the government can't decide to only seize the property of people who belong to the wrong organizations (such as the Bradley Manning Support Network). That would violate the 1st Amendment just as pulling over only black people for speeding would violate the 14th.

Re:Inconsistent?

[grcumb]

What makes this act constitutional is the power granted to Congress under the Constitution to regulate commerce between nations and enforce immigration laws.

It is VERY unlikely that the Supreme Court will touch this principle that has been in force for 230 years.

And what would make it UN-constitutional is if the search and seizure were done to silence domestic political opposition. Which is why the judge is allowing the case to proceed.

Re:Inconsistent?

[EdIII]

Which is why if I travel international from now on I remove my hard drives and replace them with a sanitized factory OS that only contains pictures of kittens and puppies. Anything really important can be retrieved over a VPN and then decrypted. Coming back into the US I have the hard drives removed and shipped before hand. Fuck em.

Of course that is a temporary measure and most likely useless when the DHS greatly expands its role to bus stops, truck weighing stations, interior border checkpoints, and the friendly mall nearest you.....

Eventually they will solve unemployment by making some barely educated moron, who graduated their fast track "degree in the security arts", pat me down entering and leaving my house.

Re:Inconsistent?

[Loki_666]

Wait a minute! Doesn't this mean if they copy the contents then they may be pirating software, films, and music? .

Re:Inconsistent?

[jcr]

Under the "border search exception" of United States criminal law,

Which does not trump the constitution. I'm very glad to see someone litigating this issue.

-jcr

Re:Inconsistent?

[jcr]

British law allowed for soldiers to essentially write their own search warrants.,

It was actually worse than that. A soldier could write out a "writ of assistance" that compelled people to help him conduct the search, including the person whose property was being searched. It was as bad as the "PATRIOT" act.

-jcr

Re:Inconsistent?

[Swampash]

Yes, but one of those Acts resulted in a revolution. For the other the people have just bent over and spread their buttocks.

Re:Inconsistent?

[Bob9113]

Imagine trying to enforce customs regulations without an ability to search!

Without the ability to search laptop hard drives? OK, I'll try to imagine that... Done. In fact, it was really easy. Here's how it goes:

You search things like trailers and trunks that carry physical things. Physical things that cannot cross the border via the Internet. Then, you don't search the hard drives, because they are not particularly useful for transporting Cuban cigars or Persian rugs.

Hard drives are only good for transporting data, which can travel just as easily through the Internet, or on a micro SD card that the border agents would not be able to find without stripping the vehicle to component parts. The increased probability of catching even a moderately intelligent data trafficker by checking laptop hard drives is vanishingly small, and utterly insufficient to be reasonable cause for avoiding a fourth amendment violation.

Which is to say; customs enforcement is not remotely credible as the actual, underlying justification for searching a hard drive.

Therefore, the objective of the executive in doing such searches must be something other than customs enforcement. Those objectives may be fine and wonderful things, but they are not directly related to crossing the border. The border crossing is the distinguishing event; the proximate source of reasonableness that prevents a violation of the fourth from a warrantless search. If the infraction in question is not directly related to the crossing of the border, the crossing of the border cannot be the means to satisfy the reasonableness requirement in a rational society.

Re:Inconsistent?

[stealth_finger]

Wait a minute! Doesn't this mean if they copy the contents then they may be pirating software, films, and music? .

Someone call the RIAA, maybe these two behemoths can bludgeon each other to death over a long drawn out battle and leave the rest of us the fuck alone for a while.

Re:Inconsistent?

[dkleinsc]

See, I've always recommended this map, also by the ACLU, that shows exactly where in the US your civil liberties are being protected properly.

Re:Inconsistent?

[jythie]

Actually, the 'corporate personhood' in the US started as an outgrowth of how British law handled the issue, so the basic framework did indeed come form England.

Re:Inconsistent?

[WillDraven]

I've heard more than my fair share of stories of evidence decreasing in weight and volume between arrest and the evidence locker (or even afterwards).

Of course I'm of the opinion that confiscating people's plant extracts and medicines and terrorizing them in the process should be against the law.

I'm hoping

[Lucky_Pierre]

For change.

Re:I'm hoping

[rastos1]

I'm hoping ... for change.

Here. My $0.02. They are now yours. That's all you'll get.

Police State

[Anonymous Coward]

This country was founded (in part) to protect people from the very shenanigans going on now re: unlawful search and seizure. Most of this crap is being justified under the umbrella of the "war on terror." The current occupant was elected by in large to combat the Bush era Patriot Act and the wars in Iraq and Afghanistan. Perhaps we have met the enemy.

Re:Police State

[Anonymous Coward]

We have met the enemy, and he is us. We're the ones who assumed BHO would be different from GWB.

Re:Police State

[eldorel]

Voting against someone implies voting for someone else.

All i'm seeing is the same shit sandwich with different kinds of bread.


Sorry, not hungry.

Re:Police State

[bussdriver]

Me too.
But we can vote on gay marriage or some other tiny issue. The big issues have nobody to vote for and have not since Carter. Nobody honest is going to fly into office after a disaster because those guys are not allowed to rise in todays system even Obama coming "from nowhere" was fake, it was to appease the public with an outsider and a feeling of change helped by the symbolism of his skin color. Even the backlash is now engineered.

Some of us "depressing" people saw all this coming but nobody can handle the truth anymore. Hell, "Dr. Doom" was what they ridiculed the only honest economist talking publicly about the pending collapse. The morons who were 150% wrong are still respected pundits and allowed on TV at every opportunity. (Sports pundits seem to be handled no differently either.)

Re:Police State

[Anonymous Coward]

"We have met the enemy, and he is us. We're the ones who assumed BHO would be different from GWB."

You can vote against Obama in the coming election.

I voted for him in the first election but now that I know he
is a liar I will vote for his opponent if only to see Obama's lying ass
replaced with a different liar.

That's sad. You think you're being clever but you are doing exactly what they want you to do. BHO, GWB, etc may have different faces but they all work for the same side. You think you're striking a blow against BHO, and you are, but in doing so you ignore the fact your enemy wins nonetheless - tactically it's a victory, but strategically it's another defeat.
Republicans and Democrats alternate in screwing you and every time it happens you run to the other one, only to be screwed once more.

Re:Police State

[jcr]

We're the ones who assumed BHO would be different from GWB.

Speak for yourself. It was obvious to a lot of people that the teleprompter-in-chief was a wholly-owned minion of Goldman Sachs before he even set foot in the Senate chamber for the first time.

-jcr

Re:Police State

[eldorel]

While there are more than two parties, the simple fact is that no third party candidate has even been on the ballot in every district in the past 20 years.

I've already talked about this in other threads over the past few years, but here it is again.
Last presidential election I was asked to leave my voting district after asking for a write in vote because the candidate I wanted was not available.

I even called the police department about it, expecting to have an officer preset to insure I didn't "disturb the peace".
Instead I was told to just vote for one of the people on the ballot and play nice.

How can we get anyone through the system that isn't a republican or democrat if they aren't allowed on the ballot, on TV, and aren't even allowed to participate in the "Open Debates" in places like ohio?

Re:Police State

[TheRaven64]

Expecting a new party to stand a chance in the presidential elections is like expecting to become CEO on your first day at a company. Start with local and state elections. Get a few people in and show that they're competent. Then stand for congress. Once you've got a few people in congress, use their voting records and speeches when campaigning for president. The only time I know of political parties becoming established and successful more quickly than this have been in new democracies or when they were formed by a group of people leaving an established party.

Re:Police State

[squiggleslash]

In this instance you vote for a third party.

Voting Republican if you're a civil libertarian tells the Democrats not that they lost civil libertarians, but that they lost conservatives, and thus pushes the Democrats to the right, while causing issues on civil liberties to be ignored.

What you do is find a third party that is more representative of your views than the parties of power.

Policy wonks and party management generally ignore non-voters: they look at who votes and who they voted for. If a small party seems to have attracted a lot of voters who'd normally be in your camp, you look into why they voted against you, and see what you can do to win them over next time.

But this "I have to vote for the two biggest parties or not vote at all" crap has to stop. If you want clear blue water between both parties, with at least one actually representing your point of view, you do the world a disservice if you don't take a positive action to force the parties to change.

Strongly worded letter

[PatPending]

Anyone have a link to (or copy of) the ACLU's "strongly worded letter" to the TSA? Its contents might prove useful to others in a similar situation.

Re:Strongly worded letter

[Anonymous Coward]

No, but I can point you to the many strongly-worded letters I've sent to politicians, manufacturers, restaurants, and TV Guide, concerning various topics. They're all excellent examples of strongly-worded letters that had no effect.

Re:Strongly worded letter

[iamgnat]

Return his equipment OR ELSE.....!

We'll put you in the COMFY CHAIR!

Re:Strongly worded letter

[solarissmoke]

Here it is:

http://aclum.org/sites/all/files/legal/re_david_house/fong_robles_vincent_re_david_House_12-21-10.pdf

Re:Strongly worded letter

[Inda]

As an Englishman, I can obtusely say that that's no strongly worded letter.

Where's the wit? The wow-words? The insulting, demeaning tone? The hidden threats?

And, at five pages, that novel was four pages too long.

God save the Queen.

Not Inconsistent...

[IBitOBear]

Violating the First Amendment is a violation of Apparent Freedom(tm) and is part of Political Theater(tm).

Violating the Fourth Amendment is a violation of Apparent Secrecy(tmp and is part of Security Theater(tm).

The DHS, in its puppet role over the TSA is in charge of Security Theater(tm) and so had no leg to stand on against the First Amendment.

If proper form were followed, the DHS would have picked a fight with House in a public place away from the border but within view of a political edifice, and "accidentally damaged" the material seized, then claimed it was known to contain child pornogrpahy because someone saw it over House's shoulder.

In short, this was all a failure of Due Process, as they used the entirely incorrect Rail Road in its persuit.

It'll be fixed in post production before air... just you wait...

Re:Not Inconsistent...

[IBitOBear]

Railroading someone in pursuit of "Justice(tm)" has become commonplace in this country. Each form of railroading has its very onw pro-forma means and mode of operation. In drugs offenses, for instance, they get to weigh the packaging as part of the drug and assign "street value" that corresponds to no known street in order to lay on extra charges etc. In this case they used border seizure on a politically undersireable person. This was not the correct means or venue. e.g. "they picked the wrong railroad" to go after this guy. (the e instad of u was just a typo.)

Re:Not Inconsistent...

[SuricouRaven]

Long been commonplace. It's standard practice in computer crime to count the cost of securing the computers as damages - that's how a hacker (Or more often, script kiddie with luck) can break into a system, do nothing, leave, and still do enough 'damage' to make it a felony.

Look Out!

[exomondo]

He's got a strongly worded letter!

Another ass wiped with our Constitution

[SirBitBucket]

Why is it that our asinine politicians in both parties have no respect for the Constitution anymore? I thought at least this crap would get better under Obama. Instead it has only gotten worse...

Re:Another ass wiped with our Constitution

[bussdriver]

No, not that much changed is the problem; even that part about killing US citizen terrorists was claimed to be already possible from a previous law (which expired or wasn't explicit enough to satisfy John McCain; i forget which but the OTHER candidate wrote the bill... and I think a veto wouldn't have stopped it anyhow, which they knew wasn't going to happen before they voted.)

It is that no ass kissing politician (does anybody vote for anything else?) has the guts to stop something that they KNOW will be used to blame any future nutcase's actions on them-- even if the guy is stopped, it'll be "why did he get that far?" "We would have stopped that if we had --Fascist law-- that the evil --honest politician-- repealed." The only safe thing would be to arrest him BEFORE he commits the crime, then they will not make that attack stick but instead rant about freedom to not be arrested prematurely, until they are in power... then the two sides switch strategies. You'd think TV nation would recognize a redo; oh wait, they don't. Aren't they redoing Spiderman soon? - already

Plus Obama doesn't even have the guts to be impeached for invoking the 14th Amendment; which was one of the threats during the whole farce about the illegal debt ceiling.

Can We Search You ?

[rust627]

Yes We Can !

Correct but also the GP is correct

[Sycraft-fu]

He was answering the original question. Searches at the border don't violate the 4th amendment. It doesn't say "no searches" or anything like that, it say there can't be any "unreasonable searches".

What is reasonable varies with the situation. For your home, it is pretty high. A warrant is required in almost all cases. For the border, it is pretty low. The SC has decided there is no expectation of privacy there, that the government has a right to secure its borders, and so on and as such they don't even need probable cause to do a search.

Hence the answer to the original question that no, these searches don't violate the 4th amendment.

In terms of this particular one, we'll see. If the search was done on account of they don't like what the person had to say or their politics, then yes it'll get ruled illegal. The searches at the border aren't unlimited, they can't be used as harassment, they just have a low standard. If the government had a legit reason for the search, then it is fine. It would also be ok if it was a random search (it wasn't, but if it was it would be ok).

More or less the reason they could be in trouble is if the purpose of the search was to harass him in an attempt to suppress his first amendment rights. That would be illegal. If the search was for another purpose, that would be legal.

Idea of amendments

[roman_mir]

The entire idea of amendments is flawed. The people have forgotten obviously that the Federal government only exists as an agreement among States (ratification is signing a contract), and the Constitution enumerates the powers of the federal government. But this means that the governments has no powers except for those that are listed in Article 1, section 8, however amendments cloud this issue for the crowd (supposedly not for judges and politicians, right?) and the crowd believes that the government is allowed everything and it is only limited by the amendments.

It was probably the first step on the way of destroying the contract that was the Constitution - allowing the amendments in the first place.

Of-course the original document shouldn't have been signed the way it was proposed because of various included violations of the human rights in the first place ( blacks are not full people, etc.)