A human rights activist and friend of Army leaker Bradley Manning was tracked through federal surveillance databases and had his digital devices seized during a warrantless airport search, recently released documents reveal, thanks to a little-known loophole.
David House’s 2010 detention at Chicago’s O’Hare airport may be the most high-profile use of the “border search exception” of U.S. criminal law, which does not require a warrant, or even an ongoing investigation, for federal agents to create an individual travel alert and then question that person and confiscate their electronics upon their reentry into the United States.
Wired reports that soon after Manning’s arrest in May 2010 for leaking thousands of State Department cables, federal immigration agents used a Treasury database to monitor the travels of House, whom they believed possessed a second round of documents leaked by Manning.
Upon learning he would be returning to Chicago from a Mexican vacation on November 3, 2010, federal agents waited for House at the airport and then detained him, with one document instructing the agents to “secure digital media” and “ID all companions.”
They confiscated his laptop, a digital camera and a thumb drive. Although containing no stolen information, Immigration and Customs Enforcement held onto the equipment for 49 days, 19 days longer than the law allows.
The agents also searched his bags and took him to a detention room for questioning, despite the fact that he had already been interrogated by federal officials after helping organize fundraising activities for Manning’s legal defense earlier that year.
Bradley Moss, a Washington-based national security lawyer, called the warrantless detention “overkill.”
“This is not, as far as I’m concerned, what the exception was intended for,” he told The Daily Caller News Foundation.
The exception was passed by the same Congress that ratified the Constitution in 1789, but some legal scholars claim the law was intended only to allow border searches, not the seizure of property.
“This exception … was never meant, nor has the case law ever extended it, to allow the government to conduct warrantless and suspicionless seizures of property,” wrote Scott Upright in the William and Mary Law Review.
Sometimes warrantless border searches seem almost arbitrary. In 2007, Zak Reed was detained without suspicion nine separate times while crossing the border with Canada. Each time, his cellphone was seized and the data copied into a federal database.
Reed had recently converted to Islam and changed his name to Zakariya, after which he allegedly became a target of heightened scrutiny.
“Americans are crossing the border and being searched and their digital media is being seized in the hopes that the government will find something to have them convicted,” House told The New York Times, cautioning travelers to “know what dangers they now face in a country where they have no real guarantees of privacy at the border.”
A spokesman for Customs and Border Protection told the Times that warrantless border seizures of digital media “are essential to enforcing the law, and protecting national security and public safety.”
The documents detailing House’s detention were released as part of a settlement agreement between the government and House, who sued the feds in May 2011 for violating his First Amendment right to freedom of association and his Fourth Amendment right against unreasonable search and seizure.
“If [the lawsuit] had played out and the court would have had to address the constitutional issue, I honestly don’t know how it would’ve been ruled upon,” said Moss.
In March, the Ninth Circuit Court of Appeals ruled that a reasonable suspicion of criminal activity was required before federal agents could forensically examine an electronic device seized during a border search.
Moss told TheDCNF that House’s case was remarkable, “especially in light of what has happened recently with [Guardian reporter] Glenn Greenwald’s partner, who was detained, interrogated, and had his property confiscated by the British authorities.”
“What you’re having here, once again, is this concern about the broadness and vagueness of the authority provided to law enforcement, who say they’re utilizing the exception to the normal rule when it comes to the Fourth Amendment,” he said.
“So long as that exception exists, I think that this is something that these agencies are going to be able to get away with,” Moss concluded.
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