In 2008, President George W. Bush announced border cops could rummage through travelers’ electronic devices at whim. Such invasions expanded under the Barack Obama administration, which adopted similar protocol.
This practice is now being challenged in a couple of lawsuits, where plaintiffs argue that searches and confiscation of electronic devices violate their First Amendment rights to free speech and Fourth Amendment protections against unreasonable search and seizure.
Between Oct. 1, 2008, and June 2, 2010, 6,600 travelers were subjected to electronic device searches, according to government figures. Nearly half were U.S. citizens. Between Oct. 1, 2010, and Aug. 31, 2012, another 10,000 were searched.
“We see a worrisome pattern that we’re getting more into whether this is targeting political speech,” Catherine Crump, a lawyer with the American Civil Liberties Union, said in a Feb. 22 phone interview. “In the case of David House we’re convinced he was targeted because of his work with the Manning Network.”
In May 2011, the ACLU filed a suit against the government for violations of First and Fourth Amendment rights of David House, a computer programmer, U.S. citizen and co-founder of the Bradley Manning Support Network. Manning is a soldier arrested and imprisoned in May 2010 for allegedly leaking classified and damning information to whistleblowing website WikiLeaks about the conduct of U.S. personnel in the wars in Afghanistan and Iraq.
House entered the U.S. at the Chicago O’Hare airport Nov. 3, 2010, after a vacation with his girlfriend in Mexico. He was questioned for 90 minutes, mainly about Manning and WikiLeaks. His laptop and camera were confiscated and held for 49 days, with the government retrieving the complete Support Network mailing list, identity of donors and potential donors, financial records and communications between members of the steering committee.
His property was sent back to him a day after the ACLU sent a letter on Dec. 21, 2010, demanding its return.
The government moved to dismiss the suit in July 2011. In March 2012 Judge Denise Casper issued a written opinion allowing the case to go on, based on the length of time the government held the devices. She dismissed House’s argument that the government had no right to search them at all, saying it was no different than a search of a suitcase.
Crump expects the case to go to trial this summer.
Crump also represents Pascal Abidor, 28, an Islamic Studies student at McGill University in Montreal, in a lawsuit against the government. Abidor has dual U.S.-French citizenship. His laptop and external hard drive were confiscated at a border point May 1, 2010, while traveling by train from Montreal to New York.
They took him off the train, frisking and handcuffing him, claiming this was standard procedure. He was placed in a detention cell for three hours and questioned about his parents, his girlfriend, his travels to Lebanon and Jordan, his research topics and perspectives on the Middle East. One of the cops identified himself as an FBI agent.
“Just because I traveled outside the U.S. shouldn’t mean I leave my constitutional rights behind,” Abidor said in a July 2011 statement. “The government shouldn’t be able to use border checks as an excuse to do an end run around the Bill of Rights.”
After the lawyers wrote a letter requesting the return of his laptop, it was sent to Abidor after 11 days.
The Department of Homeland Security’s Office for Civil Rights and Civil Liberties in early February wrote an executive summary claiming the practice does not violate First or Fourth Amendment protections. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/liberties benefits,” it said.
The government contends that the constitution-free search zone stretches 100 miles inland from the U.S. border.
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