(photo: David House)

A federal judge allowed a lawsuit against the US government that charges an activist was targeted for his “lawful association” with the Bradley Manning Support Network, an organization initially established to help raise funds for Pfc. Bradley Manning who is accused of releasing classified information to WikiLeaks.

Activist David House was reentering the US after a vacation when the Department of Homeland Security (DHS) had his laptop and other electronics searched and seized. The government claims, according to the American Civil Liberties Union (ACLU) and the ACLU of Massachusetts (which are both representing House), that it has “broad powers to search and seize laptops, phones and any other electronic device at the border without any justification.” The judge’s refusal to dismiss the lawsuit directly challenges this claimed authority.

The recent decision means House’s lawsuit moves forward to the “evidence-gathering stage, which could reveal why House became the subject of a government inquiry and which government agencies copied or viewed the contents of his laptop, phone and camera.” It means House has a chance to challenge any copying of records containing information on donors or members of the Support Network.

Additionally, the decision is significant because the judge declined to dismiss House’s First Amendment claim, clearly acknowledging how the search had likely violated his First Amendment rights:

An individual’s First Amendment rights may not be violated simply because a search uncovers expressive material…However, the search in this case is alleged to have targeted specifically House’s expressive material concerning the Support Network. The complaint further alleges that the agents stopped him at the border because of his association with Manning and the Support Network. When agents Santiago and Louck stopped House while he was en route to his connecting flight, they directed him to surrender the electronic devices he was carrying. They questioned him for an extended period of time only after seizing his devices. When the agents questioned House, they did not ask him any questions related to border control, customs, trade, immigration, or terrorism anddid not suggest that House had broken the law or that his computer may contain illegal material orcontraband. Rather, their questions focused solely on his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyone from WikiLeaks during his trip to Mexico. Thus, the complaint alleges that House was not randomly stopped at the border; it alleges that he was stopped and questioned solely
to examine the contents of his laptop that contained expressive material and investigate hisassociation with the Support Network and Manning. [emphasis added]

The judge also found the motivation for searching House’s laptop and other electronic devices was relevant to House’s First Amendment claim, which increases the ability of House to argue the government targeted him for his association to the Support Network.

On House’s right to freedom of association under the First Amendment, the judge found House’s allegations were “sufficient to support a reasonable inference that the agents’ interferences with House’s associational rights were direct and substantial to state a plausible right of association claim.” This was, again, because the agents had only questioned him about Bradley Manning, WikiLeaks and any contact he had with WikiLeaks while on his Mexico trip.

With regards to the Fourth Amendment challenge to the search and seizure, the judge contended the “search of one’s personal information on a laptop computer, a container that stores information, even personal information, does not invade one’s dignity and privacy in the same way as an involuntary x-ray, body cavity or strip search of a person’s body.” The search was more like searching “personal information” that a traveler might be carrying. And, therefore, she was reluctant to consider this aspect of the Fourth Amendment challenge valid because it could “carve out an exception” in this instance for “information contained on electronic devices” and he could not have more expectation of privacy than someone carrying papers in a briefcase might have at the border.

However, this was not the full extent of the Fourth Amendment challenge. House submitted a challenge on the “duration of the seizure” of his devices. The judge found this part of the challenge to be valid:

House disputes the reasonableness of the prolonged seizure of House’s electronic devices and has produced a declaration from Alexander Stamos, a forensic investigator, to support House’s argument that a forty-nine-day seizure to review and analyze his electronic devices was not a reasonable amount of time. Stamos attests that the process of imaging and verification described in the Declaration of ICE agent Robert Marten should not have taken more than eighteen hours, did not require the one-week period that the devices were retained by ICE in Chicago and did not require the period of nearly six weeks that the devices were retained in New York. The Defendants do not explain the extent to which the limited number of ICE agents certified in computer forensics and their current workload prolonged the detention of House’selectronic devices or how the transferring of the devices affected that delay and the factual recordremains undeveloped as to these issues material to the reasonableness of the duration of the seizure and House disputes the rationale proffered by the Defendants for the forty-nine-day delay. [emphasis added]

Based on the declaration from the forensic investigator, there was enough to support a claim that his Fourth Amendment right had been violated.

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Again, let’s review what happened. In November 2010, he was stopped by DHS agents at the O’Hare International Airport in Chicago. The agents asked him about his political activities and beliefs. His laptop computer, camera, and a USB drive were all seized. The questioning and seizure of personal property did not happen because House posed a threat to border security. He was made to face intrusive and intimidating tactics because of his ties to a group that was known to have broken no laws.

The ACLU came to his defense and filed a lawsuit against the DHS. The ACLU called for the “return or destruction of any of House’s personal data still in the custody of the government and disclosure of whether and to whom the data has been disseminated.” If not for the ACLU sending a letter to DHS, House would likely have not been able to get his seized laptop, camera and USB drive back after seven weeks. The government would have kept his property even longer.

In the aftermath, he was subpoenaed to appear before a grand jury in Alexandria, Virginia, that was empaneled to investigate WikiLeaks. The subpoena suggested the US government may be trying to build an espionage case against House.

House has said that the search and seizure of his laptop had a “chilling effect on the activities of the Bradley Manning Support Network, by silencing once-outspoken supporters and causing donors to retreat.” Nobody who was associated with the Support Network or who had donated and supported the group could know what the US government would do with their personal information that House may have had on the electronic devices seized (and they still cannot know).

The government, in its clearly documented war on WikiLeaks, went after someone it believed to have obvious connections. Political speech was wrongfully targeted. And, for that reason, the fact that the judge is allowing the case to move forward is important as it presents an opportunity to affirm that all US citizens have First and Fourth Amendment rights that should not be violated.