Revealed: DHS Strategy to Seize Digital Information at Border

Newly disclosed documents address the case of computer programmer David House who had several electronic devices seized by border control following his involvement with Bradley Manning.

The documents were released after a long ongoing court battle that House initiated against the U.S. government with help from the American Civil Liberties Union.

The documents reveal a troubling amount of surveillance and planning to ensure that House’s personal effects and information would be seized without judicial approval and without being charged with any criminal activity.

In a classic case of guilt by association, David House wound up on a government watch list after befriending Manning and later starting the Bradley Manning Support Network following Manning’s arrest.

His file noted that the government was on the lookout for a second batch of classified documents Manning had reportedly shared with the group WikiLeaks but hadn’t made public yet. Border agents were told that House was “wanted for questioning” regarding the “leak of classified material.” They were given explicit instructions: If House attempted to cross the U.S. border, “secure digital media,” and “ID all companions.”

Very few people are aware that in a country supposedly protected by a Constitution enumerating liberties such as freedom from unreasonable searches and seizures, there exists a 100-mile-wide ring around the entire nation that the ACLU has called a “Constitution-free Zone.” It is here that government has tried hardest to test the limits of its authority.

This zone lies within the realm of border protection and permits otherwise unconstitutional actions such as inland checkpoints, drones, license plate tracking, biometric data collection, and DNA collection, all without a warrant. DHS has sought to add digital searches and confiscation to the list, which is where the ACLU began its original battle. What makes this Constitution-free zone additionally troubling is that the nation’s largest cities lie within it, making 2/3 of the population susceptible to whatever the government wishes to do. However, for now, digital seizures have been utilized primarily in direct border entries.

Americans have long come to accept that when encountering a foreign border in their travels, it is OK for agents to physically and electronically examine one’s baggage and other personal effects; we have been well trained that we are all guilty until proven innocent by the State until permitted to proceed. As ArsTechnica previously reported, if a laptop or other digital device is part of your personal effects, DHS has attempted to assert that not only should the device be superficially examined, but any files on that device could also be examined. This not only crushes the 4th Amendment, but potentially the First as well:

Some also contend that searching laptops without reasonable suspicion violates the First Amendment. The Civil Rights and Civil Liberties Office at the DHS, which is theoretically in charge of ‘promoting respect for civil rights and civil liberties in policy creation and implementation’ within the organization, disagrees.

‘Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights,’ writes Tamara Kessler, the report’s author. ‘However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.’ (Source)

Full clarification of “reasonable suspicion” hasn’t been forthcoming. The office that cares so much about your civil liberties and privacy has offered only an executive summary so far, but the full report is off limits.

That rubs the ACLU the wrong way. ‘Given the report’s troubling conclusion that its agents are entitled to the sweeping power to examine Americans’ private papers, it is important that the agency make the full and complete report available,’ Crump told us. ‘The public has a strong interest in understanding the arguments and evidence that supports the report’s conclusion, not just in knowing the ultimate results.’

David House’s ongoing battle has now forced the government to reveal some of their methods, as well as the tenuous assertion of what constitutes reasonable suspicion.

Once flagged as a possible risk to national security for possibly carrying classified documents, House was entered into the TECS system. The U.S. government and INTERPOL can add information about a range of suspected activities that can trigger a red flag while traveling and returning to the United States. According to the documents that were released, House mysteriously wound up in the TECS system at precisely the same time he was visiting Manning in prison and organizing his advocacy platform.

Investigators laid in wait for months for House to leave the country and return, presumably because they would have had to go through proper legal channels to seize his property otherwise. As he was returning from Mexico, he was detained, had his electronic devices seized, and was never charged or told whether or not his property would be returned. This is eerily similar to what recently happened in England to Glenn Greenwald’s partner David Miranda.

In House’s case, all of his files were copied, as well as all keystrokes made on his laptop. His items may never have been returned, but after 7 weeks House contacted immigration and customs to request his items and did receive them the very next day.

It’s worth noting that a federal appeals court has officially disagreed by a vote of 8-3 with the vague assertions of the DHS Office for Civil Rights and Civil Liberties.

Their ruling makes clear that there should be reasonable suspicion; a ruling by the full 9th Circuit that overturned a previous ruling by a three judge panel:

Customs and Border Protection officers cannot confiscate or download every laptop or electronic device brought into the U.S., ruling that people have an expectation their data are private and that the government must have “reasonable suspicion” before it starts to do any intensive snooping.

In a broad ruling, the court also said merely putting password protection on information is not enough to trigger the government’s “reasonable suspicion” to conduct a more intrusive search — but can be taken into account along with other factors.

The 9th U.S. Circuit Court of Appeals judges said it was a “watershed case” that gets at what kinds of limits the government must observe when it comes to technology and privacy. (Source)

The 9th Circuit U.S. Circuit Court of Appeals at least has stated that they will not permit the government to examine and confiscate the files of Americans presumed to be innocent. Reasonable suspicion must be established. However, the Washington Times also notes that “reasonable suspicion” is a lower standard than “probable cause” which would require a search warrant before data can be examined and retained. Nevertheless, the court has ruled “that password-protected files are exactly what the Constitution’s framers had in mind when they wrote the Fourth Amendment protecting Americans’ ‘papers’ from unreasonable searches.”

Nevertheless, DHS continues to offer up hot-button topics like national security, drug trafficking and child porn as the catch-all to help their end-run around the Constitution, as well as employ the no-man’s land of the 100-mile wide border. For those who might be in favor of a loose interpretation, it is important to keep in mind that when a complete set of one’s digital files are seized, it is not only the “suspect” that is open to scrutiny; it is everyone who ever has communicated with that individual. This creates a troubling dragnet that violates anyone in its path, as House concludes:

House . . . said his primary concern was ensuring that a document containing the names of Manning Support Network donors didn’t wind up in a permanent government file. The court order required the destruction of all his files, which House said satisfied him.

As we have learned time and again: this government will continue reaching in the most invasive manner possible; it is up to each of us to force transparency and ensure that our Constitution is preserved across the entire country with consistent standards, not only where the government authorizes our freedom.

Source, Associated Press:
http://hosted.ap.org/dynamic/stories/U/US_BORDER_COMPUTER_SEARCHES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2013-09-10-05-30-23

Read the full documents of House vs. Napolitano Here:
https://www.aclu.org/HouseDocuments