The government has decided to settle a lawsuit brought by American Civil Liberties Union on behalf of Bradley Manning Support Network co-founder David House. The lawsuit involves a suspicionless border search that House experienced in 2010, where he had his laptop and other electronic devices seized.

As part of the settlement, the government will destroy all “images” or copies of his devices and confirm through an affidavit that “no documents contain data extracted, or information derived, from the contents of the devices or images.” The government will also produce an “index” that shows the “chain of custody for both Mr. House’s devices and the images that were created from the devices.”

“The index will reflect which government personnel, identified by agency and position, accessed or had custody of the devices or images of the devices. The index will also indicate the dates on which Mr. House’s devices or images were disclosed to these individuals,” according to the settlement.

Information on a Treasury Enforcement and Communications System (TESC) “lookout” that was used by the Department of Homeland Security to alert House when he was crossing the border will also be produced, creating the possibility that the ACLU could gain insight into security procedures that have been kept mostly secret.

Catherine Crump, staff attorney with the ACLU Speech, Privacy, and Technology Project, told Firedoglake this is a win for David House and “for those who care about the issues he cares about.” House was concerned the government had “extensive information” about Manning supporters. Now, the government will no longer have his data on their computers.

When House had his laptop and other electronic devices seized, the DHS made copies of the “complete Support Network mailing list, confidential communications between members of the Steering Committee about strategy and fund-raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes on meetings with donors including personal observations about those donors.”

His property was only returned to him after the ACLU sent a letter in December 21, 2010, to DHS, CBP and ICE urging the agencies to return his electronic devices. They returned the devices to House on December 22, but it was later found out that agencies had maintained copies of information on his property.

Crump said the records the government has been ordered to hand over will “shed light on what happened after the government seized electronic devices at the border.”

Apparently, House was designated as a “person of interest” by someone in New York. He was flagged. Federal agents and state and local agents were then authorized to act as “lookouts” and watch for him to cross the border.

“The flagging system is a serious concern to the ACLU,” Crump declared. She said it enables the federal government to expand its search far beyond the traditional confines of what has been permissible. It gives law enforcement that ability to do a complete end-around and not obtain a warrant. They can wait until a person is at the border of the United States and then conduct a search or seizure. This can be done with virtually no limitations whatsoever.

Despite the settlement, the government did not concede that it had been responsible for any wrongdoing. However, Crump pointed out that a district court judge issued “one of the best decisions” anyone has gotten when subjected to the kind of treatment House experienced.

In March 2012, the judge declined to dismiss House’s First Amendment claim and acknowledged 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]

This led to months of negotiations between the government and the ACLU that resulted in the settlement. It is possible they settled because the judge had issued a ruling that put the government in a bind. House had been targeted for his political association with Manning supporters and that evidence would go a long way toward any decision in court that the government had engaged in misconduct. It could have had ramifications for how border searches are conducted.

House reacted to the decision:

When my laptop was seized on American soil, I made a pledge to the everyday working people, clergy, and U.S. service members who make up the heart of Mr. Manning’s financial contributors: that their generosity would not be met with retaliation from corrupt elements within our government, and that their personally identifying information, placed at risk by the seizure, would be reclaimed from those who had ordered it seized…

Today, with a settlement to reclaim this data realized through the pressure of the courts and the hard work of the ACLU, I have made good on my pledge. The government’s surrender of this data is a victory through vital action not only for the citizens put at risk, but also for anyone who believes that Americans should be free to support political causes without fearing retaliation from Washington.

According to a two-page executive summary on a report completed between October 2011 and September 2012, DHS does not believe any of its policies violate anyone’s Fourth Amendment rights or chill anyone’s First Amendment rights, which include freedom of speech and association. How they reached these conclusions is unknown because DHS refused to make the full report public, but the agency expects Americans to accept its baseless claims that it is not violating people’s civil liberties at the border.

The ACLU has one other case involving dual US-French citizen Pascal Abidor, who “had his laptop searched and confiscated at the Canadian border while traveling home to New York on an Amtrak train in May 2010.

“Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge,” according to the ACLU. “When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos, and chats with his girlfriend, had been searched.”

The organization has also pushed for more transparency and filed a Freedom of Information Act request for the full report, which was done on the impact of border searches of electronic devices on civil liberties/civil rights.
So long as the government insists on preserving secrecy around border searches and claims expansive powers that violate individuals’ civil liberties and make it possible to arbitrarily target any person whose views or political associations are at odds with the government, there will be a need to challenge the government’s exercise of its authority.